Limits of Progressive Discipline in New Jersey Civil Service Law Addressed by Appeals Court

Progressive Discipline

Progressive discipline is a principle followed in New Jersey employment law, in both civil service and non-civil service jurisdictions, including public schools.  In progressive discipline, a public employee’s prior disciplinary history will be considered in determining the appropriate penalty for disciplinary violations.  Thus, a government employee with a clean disciplinary record would receive a lesser penalty for the same violation for which another employee with previous discipline would receive a harsher penalty.  For example, an employee who was late for the first time might receive no discipline, while one who has been late fifty times in a year might be terminated.  Even with first offenses, however, some infractions are so severe that major discipline, even termination, may be appropriate for a first offense.

The Johnson Case

An illustration of this can be found in the recent Appellate Division opinion in the case of In the Matter of Michael Johnson, Elmwood Park Police Department.  In that case, an employee with twelve years as a police officer and no significant disciplinary history was charged by his employer with conduct unbecoming, neglect of duty, failure to perform duties, insubordination, violation of departmental rules and regulations, and other just cause.  The Police Department sought his termination.  The allegations were: that he pulled a driver over without cause solely to deliver a message as a personal favor for another officer (who also received discipline); wrote a letter on Department letterhead without permission which untruthfully stated that he had issued a motor vehicle summons in error which was then used by the motorist in her defense in court; and that he used derogatory and disrespectful terms for two of his superior officers, including the chief of police.  In the stop, he apparently disabled his squad car’s mobile video recorder, and failed to record the stop or report it to dispatch.

A departmental hearing was held, and Johnson was terminated.  He appealed his termination to the New Jersey Civil Service Commission.  A hearing was held by an administrative law judge (ALJ) in the Office of Administrative Law.  The ALJ found that the charges were well supported by credible evidence and thus sustained, and recommended that Johnson be terminated.  The Civil Service Commission adopted the ALJ’s recommendation.  The Commission found that while Johnson had a substantially insignificant disciplinary record, his “egregious conduct as a policed officer was deserving of removal from employment.”

The Appellate Division Examines the Limits of Progressive Discipline

Johnson appealed to the Appellate Division of the Superior Court of New Jersey.  The Appellate Division upheld his termination.  The Appellate Division affirmed that while progressive discipline will sometimes serve to mitigate the level of punishment, even where an employee’s disciplinary history is clean, some offenses are so severe that they merit termination, even with consideration for progressive discipline.  The court found that this was just such a case.

The Appellate Division also explained that when a case involves law enforcement officers, public safety concerns will often warrant dismissal from employment even if a similar set of facts might not for a civilian employee.  Here the evidence of that conduct was overwhelming.

The Takeaway

Progressive discipline is a defense to harsh discipline which should always be raised.  However, it will not prevent significant discipline for egregious actions even when it is a first offense.  This is especially true when the disciplinary violation was committed by a law enforcement officer.

Questions About Civil Service Discipline and Other Governmental Employment Actions

If you have questions about progressive discipline, civil service law, or any other area of New Jersey employment law, please call us at (973) 890-0004 or fill out the contact form on this page to schedule a consultation with one of our New Jersey employment attorneys.  We can help.