At McLaughlin & Nardi, LLC, our employment attorneys represent New Jersey public sector employees. The majority of government employees in state and local government are covered by New Jersey’s Civil Service System. A large part of our practice is representing employees facing discipline under New Jersey’s Civil Service System, from departmental hearings, to appeals in the Civil Service Commission, trials before administrative law judges in the Office of Administrative Law, and appeals to New Jersey’s appellate courts.
New Jersey’s Civil Service System governs the discipline of the majority of government employees. This includes all employees of the State of New Jersey, and most local and county employees.
New Jersey’s Constitution of 1947 expressly provides the basis for the Civil Service System – it contains an express requirement that government employment decisions should be based on merit, not political connections, favoritism or nepotism. The Civil Service System is governed by the New Jersey Civil Service Act, and the regulations adopted by the New Jersey Civil Service Commission (formerly known as the Merit System Board).
In 1961, the Appellate Division of New Jersey’s Superior Court summarized the disciplinary procedures of the Civil Service Act, which is worth quoting verbatim.
Disciplinary proceedings against a civil servant are not only an attempt to determine the status of a particular individual; they are a statutorily authorized action to redress a wrong committed against the people of the State by one in whom the public trust has been officially reposed. The proceedings are therefore penal, or at least Quasi-penal, in nature, and deeply embedded constructional principles, supported by fundamental notions of fairness, dictate that in such an action the statute or regulation defining the alleged violation be construed to comport with the fair meaning of the language used. The theme of fairness threads its way through the notice, hearing, and right of appeal provisions of our Civil Service Act, and finds particular pertinence in those sections requiring that the causes for removal constituting ‘just cause’ be enumerated with specificity. The governing consideration, that one be fairly and completely advised of the nature of the charges against him, loses all effectiveness if it is not reinforced by a requirement that the proscribed activities and contingencies warranting disciplinary proceedings be set forth with reasonable particularity and construed accordingly.
The Civil Service Commission’s regulations provide examples of conduct for which an employee may be subject to discipline, and the case law from New Jersey’s courts and the Commission give more concrete examples. However, some examples of grounds for discipline include:
Discipline is categorized as either “major” or “minor,” and the designation carries with it different consequences and different avenues of relief.
Major Discipline. Major discipline includes removal, disciplinary demotion, and suspension or fine of more than five working days at one time.
Minor Discipline. Minor discipline is defined as “a formal written reprimand or a suspension or fine of five working days or less.”
Discipline, whether major or minor, “is governed by principles of notice, due process and fundamental fairness.” Thus, before imposing discipline, the employer must give the employee notice of the charges against her and the opportunity for a hearing on the charges where she can present evidence and testimony, and argue either that she did not commit the infraction or the level of discipline is too harsh, or both.
Major discipline must be appealed within 20 days. Failure to meet this period will result in an appeal being denied. Appeal is made to the Civil Service Commission. The Commission normally refers appeals to the Office of Administrative Law for a fact hearing by an administrative law judge (known as an ALJ). The ALJ makes a recommended decision which the Commission can accept, reject or modify. When the Civil Service Commission makes its decision, it then becomes the “final agency actions which can be appealed to the Appellate Division and then to the Supreme Court of New Jersey.
There are no provisions for an administrative appeal of minor discipline under New Jersey Civil Service law. Rather, the remedy is an appeal to the Superior Court by way of an action in lieu of prerogative writ. Like an administrative appeal, the action has a short limitation and must be filed within 45 days. Unfortunately, however, the remedy for minor discipline, the action in lieu of prerogative writ, is more cumbersome and expensive than on administrative appeal of major discipline. This discourages many employees from appealing minor discipline. However, some choose to do so because of the doctrine of “progressive discipline.”
The concept of progressive discipline requires employers and reviewing authorities to consider past discipline in determining punishment for current infractions.
In the 1963 case of West New York v. Bock, the New Jersey Supreme Court found that an employee’s prior disciplinary record was “inherently relevant” in determining the appropriate penalty for a present infraction, although not to prove guilt for that infraction. The Supreme Court explained: “While a single instance may not be sufficient, numerous occurrences over a reasonably short space of time, even though sporadic, may evidence an attitude of indifference amounting to neglect of duty.”
The Supreme Court has explained the use and application of progressive discipline.
[T]he concept of progressive discipline has been utilized in two ways when determining the appropriate penalty for present misconduct. First, principles of progressive discipline can support the imposition of a more severe penalty for a public employee who engages in habitual misconduct.
****
The second use to which the principle of progressive discipline has been put is to mitigate the penalty for a current offense.
Progressive discipline is not a fixed concept, and is determined on a case by case basis. Indeed, some acts are so egregious that a first disciplinary offense is sufficient for removal, while relatively minor infractions require repeated occurrences before warranting any major discipline.
Our attorneys defend civil service employees against disciplinary charges, and appeal the wrongful imposition of discipline. Call (973) 890-0004 or email us to schedule a consultation with one of our New Jersey employment attorneys. We can help.
