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Can Prior Disciplinary Records Be Considered When Disciplining Police Officers?

Jan 14, 2022 | Written by: Sharon M. Flynn, Esq. |

As early as the 1960’s, the New Jersey Supreme Court determined that a public employee's disciplinary history “may be resorted to for guidance in determining the appropriate penalty for the current specific offense.” West New York v. Bock, 38 N.J. 500, 523 (1962).  Progressive discipline may be used to “ratchet-up” penalties against a public employee, as the Appellate Division recognized in State-Operated School District v. Gaines, 309 N.J. Super. 327, 333 (App. Div.), certif. denied, 156 N.J. 381 (1998).  (This case dealt with changing suspension without pay for six months to termination when the employee had four major disciplinary actions against him during five-and-one-half years of service.) 

The New Jersey Supreme Court has since refined the concept of progressive discipline as it applies to police officers.  In the matter In re Herrmann, 192 N.J. 19 (2007), the Court expanded and divided the use of progressive discipline into two categories; to either increase a penalty for habitual misconduct, or to mitigate a penalty for a service record free from major blemishes.  The New Jersey Supreme Court in Herrmann also explained the circumstances in which progressive discipline should be bypassed:

                …when an employee engages in severe misconduct, especially when the employee's position involves public safety and the misconduct causes risk of harm to persons or property.  Id. at 33.

That same year, the New Jersey Supreme Court noted that “[i]n matters involving discipline of police and corrections officers, public safety concerns may also bear upon the propriety of the dismissal sanction. In re Carter, 191 N.J. 474, 484 (2007).  In fact, in Carter, the Court explained that when the incident is serious enough, removal can be appropriate, even with an “unblemished” record.  Id. at 484. 

In a recent Appellate Court matter, the Appellate Division refused to disrupt the Administrative Law Judge (ALJ) and Civil Service Commission’s (CSC) decision to downgrade the Chief of Police’s discipline from termination to a 6-month suspension.  Specifically, in In the Matter of Michael Chase, two police officers filed an Internal Affairs complaint alleging, among other things, that their Chief of Police, Chase, had ordered them to take his wife’s car to be repaired during work hours on more than one occasion.  The Essex County Prosecutor’s Office investigated the matter and captured videotaped evidence of the officers transporting and picking up the Chief’s wife’s vehicle.  The Township of Irvington filed disciplinary charges against its Chief of Police, and thereafter, a hearing officer found Chase guilty on some of the charges and recommended that the Township terminate him. 

Chase filed an appeal with the Office of Administrative Law, and the ALJ conducted a hearing that spanned the course of three years.  The ALJ sustained some of the charges against Chase and rejected others and recommended a six-month suspension rather than termination.  The CSC also reviewed the matter and entered a final agency decision that affirmed the ALJ’s decision.  As a result, the Township appealed the final agency decision, including, among other things, the downgrading of the Chief’s discipline.  The Township argued that the final agency decision was arbitrary, capricious, and not supported by the evidence.

The Appellate Division acknowledged that it had a “limited role” in reviewing agency decisions, and that in order to reverse an agency decision, it had to find that the agency decision was arbitrary, capricious, unreasonable, or not supported by substantial credible evidence.  See Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980).  In reaching its decision, the Appellate Division noted that both the ALJ and the CSC had performed their own independent and comprehensive analyses.  The Township argued that the ALJ and the CSC had ignored Chase’s prior disciplinary record and the severity of his offenses when determining his sanction and reducing it.  However, the Appellate Division emphasized the fact that the ALJ had found that Chase did not have a significant history of prior discipline.  Accordingly, the ALJ had not ignored Chase’s disciplinary record.  The ALJ had considered the Chief’s disciplinary record, but just didn’t find that his disciplinary record was significant.  The ALJ did find, however, that the Chief’s conduct noted in the sustained charges set a bad example for a Chief of Police and a law enforcement officer of thirty years.  The CSC agreed and adopted the ALJ’s recommendation for a six-month suspension.  The Appellate Division found this to be reasonable under the facts presented and noted that it would not “substitute” its “own judgment” for that of an administrative agency, even when reviewing disciplinary sanctions, unless the sanction was so disproportionate to the offence and “shocking” to one’s own sense of fairness (quoting In re Stallworth, 208 N.J. 182, 194-95 [2011]). 

The Township further argued that because the Chief had reached the mandatory age of retirement while the administrative proceedings were taking place, and because his salary was paid in full up through the date of his retirement, his six-month suspension would, in essence, have no impact on the Chief.  While the Appellate Division agreed that the Chief had retired before the six-month suspension went into effect, there had been no claim advanced that the Chief had caused the delay in the hearings, which took more than five years.  Accordingly, the Appellate Division determined that “protracted proceedings resulting in a favorable situation for Chase do not support the imposition of a harsher penalty than one reasonably determined by the CSC”.

This case appears to be an example of the use of an officer’s disciplinary record to mitigate a penalty.  The ALJ found that Chase did not have a significant history of prior discipline and used this as a catalyst to reduce his sanction, even when the sanction ultimately given had no real impact on the officer. 

For additional insight on this topic, or for guidance on related employment law issues, please contact the offices of Gebhardt & Kiefer at 908-735-5161.

Sharon M. Flynn


Sharon M. Flynn, Esq. is a partner with Gebhardt & Kiefer, PC, and practices primarily in the areas of general litigation, employment law, and insurance defense.

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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.