progressive discipline

On June 3, 2010, the Appellate Division decided In the Matter of Torres Mayfield, Docket No.: A-2969-08T1. In the case, Torres Mayfield appealed from the final decision of the Civil Service Commission (“Commission”) terminating him as an Atlantic City police officer for misconduct.

Mayfield was charged with violations of Atlantic City Police Department

On August 17, 2009, the Appellate Division decided In the Matter of Juan Melendez, Docket No.: A-4617-07T1. In the case, Juan Melendez, a Hudson County Corrections Officer, appealed from a final administrative determination of the Merit System Board (“Board”) imposing a fifteen-day suspension for neglect of duty and other sufficient cause warranting discipline.

The Board adopted the initial determination of an Administrative Law Judge on a remand following his first determination that the suspension should only be for three days following Hudson County’s suspension of thirty days. On appeal, Melendez argues that: (1) the decision of the Board upholding the charges is not supported by credible evidence in the record; (2) the penalty of a fifteen day suspension is at odds with the concept of progressive discipline and appellant’s prior disciplinary history; and (3) he is entitled to attorneys’ fees based on having prevailed on all or substantially all of the primary issues.

The testimony before the ALJ revealed that Sgt. Kevin Orlik reported, and testified, that Melendez was asleep at his post in a trailer annexed to the jail on March 19, 2006 when Orlik and other officers arrived to conduct a search of the cells. In his testimony, Orlik testified that when he entered the trailer he “saw Officer Melendez reclined back in a chair with a roll of toilet paper as a pillow or cushion behind his neck,” “his eyes were closed,” and he was “motionless” as he was observed “for approximately a minute to two minutes” until other officers entered the trailer and started to make noise. Melendez testified that he wasn’t sleeping and told that to Orlik when he directed Melendez “to write a report on why [he] was sleeping.” Melendez challenged Orlik’s credibility by noting that his written report omitted details embodied in his testimony.

There was also testimony about the practice of standing when a superior officer enters the room. Melendez did not do so on the night in questions, and testified that it wasn’t a “regular routine” and he generally did not do so. Although the failure to stand was not itself a basis for discipline, it was determined to be relevant to the issue of “attentiveness” at the time, as well as to the ALJ’s finding that the inattentive conduct was a “sufficient cause” for the three-day suspension he initially imposed.

On the remand, despite making credibility determinations against Orlik because of the failure to include certain details in his written report, the ALJ found neglect of duty and “other sufficient cause” for the discipline, and found that “the failure to stand and acknowledge Sgt. Orlik’s when he entered the trailer to constitute being inattentive.”


Continue Reading Suspension of Hudson County Corrections Officer Upheld

On July 28, 2009, the Appellate Division decided In the Matter of Donald Michelson, Department of Safety, City of Union. In the case, Donald Michelson sought review of the Final Administrative Action of the Merit System Board accepting and adopting the initial decision of the Office of Administrative Law (“OAL”). The Administrative Law Judge (“ALJ”) found that the City of Union had proven its charges of neglect of duty, other sufficient cause, and absence without leave against Michelson and concluded that the penalty of suspension without pay for six (6) work days was reasonable and consistent with progressive discipline.

On October 14, 2005, Michelson, a sergeant in the Union Police Department, was assigned to work in the communication center from 2330 hours to 0730 hours but did not report for duty. The Police Department schedule cycle requires officers to report for duty four days on and three days off per week for three weeks, then report for duty four days on and two days off for one week (called “the short week”). Before 0400 hours, Sergeant Botti, the Desk Officer Supervisor called Michelson to inquire about his absence. Apparently, Michelson mistakenly believed he was on the short week and not scheduled to work that day. He ultimately reported for duty at 0400 hours.

The Police Department charged Michelson with neglect of duty, absence without leave, and other sufficient cause. Due to his absence, which was undisputed, the ALJ determined: (1) the communication center was without supervision for approximately four and one-half hours; and (2) the desk sergeant put aside his regular duties to conduct an inquiry into Michelson’s absence. The ALJ also noted the police department operates as a paramilitary organization and prompt attendance is critical to the efficient operation of the department. The ALJ further found that the six-day suspension comported with the concept of progressive discipline. The ALJ, reasoning that Michelson had no intention to report for duty until Botti called him, rejected Michelson’s contention that he was merely tardy, not absence without leave.   

The ALJ, noting that superior officers such as Michelson must set an example for subordinate officers, also rejected Michelson’s claim that he was subjected to disparate treatment because no other officer had been suspended for arriving late. Additionally, the ALJ concluded that the record was insufficient to support a claim of disparate treatment as it did not contain the prior disciplinary records of the other employees, a factor bearing on the discipline to be imposed. Thus, no reasoned comparison could be made. Consequently, the ALJ affirmed Union’s determination that Michelson be suspended for six (6) days.

On review by the Board, it accepted and adopted the ALJ’s findings of fact and conclusions of law and found “that the action of the appointing authority in suspending [Michelson] was justified.” Accordingly, it affirmed the action and dismissed Michelson’s appeal. This appeal ensued.


Continue Reading Suspension of Union Police Officer Upheld

On April 15, 2009, the Appellate Division decided In the Matter of Cornelius Caruso, Docket No.: A-1612-07T1. In the case, Cornelius Caruso appealed his termination as police officer in the City of Orange Police Department.

Caruso became a police officer in 2000. In 2005, he began to experience serious problems related to his use of alcohol. He voluntarily entered a program at the Carrier Clinic in December 2005. When he did so, he failed to follow the Department’s requirement that he notify the communication supervisor and apply for a leave of absence. No charges were filed with respect to that omission.

Caruso left the Carrier Clinic in March 2006. He was found by the Department to be fit for duty and returned to work on April 1, 2006. Caruso was instructed to make periodic reports concerning his recovery, which instruction was confirmed in a letter from the City’s attorney to Caruso’s attorney. No such periodic reports were ever made.

The Department permits fifteen days of sick leave per year. The Department assessed Caruso for use of 2006 sick leave only during the period from January 1 to January 10, 2006. The period from January 11 to March 31, 2006, was charged as a combination of administrative and compensatory leave. After Caruso’s return to duty in April, he went out on sick leave from April 6 to April 18; May 10 to July 7; October 25 to November 4; and December 12 to the end of 2006. Consequently, by December 2006, Caruso had taken significantly more sick leave than was permitted by the Department.

On December 12, 2006, Caruso left work because of an eye infection. However, according to Caruso, his problem with alcohol use returned in December 2006. On December 22, 2006, Caruso left his home and traveled to Hazelden, a rehabilitation clinic located in Minnesota. He again failed to notify the communications supervisor, although others apparently notified one of his superiors who subsequently contacted Caruso and arranged for him to surrender his service weapon. Caruso also failed to complete the required form for a leave of absence.

As a result, on January 18, 2007, the City filed formal disciplinary charges against Caruso. The disciplinary charges were as follows: (1) performance of duty; (2) insubordination; (3) obedience to laws and rules; and (4) abuse of sick leave. 

Caruso left Hazelden and returned to New Jersey on January 19, 2007. He started intensive outpatient aftercare on January 23, 2007, which required his attendance at a program for four hours a day, four days per week, as well as attendance at Alcoholics Anonymous sessions.


Continue Reading Termination of Police Officer Arising from Substance Abuse Upheld