IN THE MATTER OF MARK TORSIELLO, TOWNSHIP OF NUTLEY (NEW JERSEY CIVIL SERVICE COMMISSION) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1679-15T1
IN THE MATTER OF
MARK TORSIELLO,
TOWNSHIP OF NUTLEY.
________________________
Submitted December 12, 2017 – Decided June 21, 2018
Before Judges Yannotti and Leone.
On appeal from the New Jersey Civil Service
Commission, Docket Nos. 2012-950 and 2013-83.
Stuart Ball, LLC, attorneys for appellant Mark
Torsiello (Charles I. Auffant, on the brief).
Piro, Zinna, Cifelli, Paris & Genitempo,
attorneys for respondent Township of Nutley
(Alan Genitempo, of counsel and on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent New Jersey Civil
Service Commission (Brian M. Kerr, Deputy
Attorney General, on the statement in lieu of
brief).
PER CURIAM
Appellant Mark Torsiello challenges the November 5, 2015
decision of the Civil Service Commission (CSC) upholding his
termination by the Township of Nutley (Township). We affirm.
I.
The following facts were found by the Administrative Law
Judge (ALJ) in her September 23, 2015 decision, and adopted by the
CSC.
Torsiello was hired in 1993 by the Township as a laborer with
the Department of Public Works (DPW) and later attained the title
of mechanic. In 2004, the Township disciplined him for several
instances of aggressive, abusive, and threatening behavior.
On August 9, 2011, Torsiello was in uniform cleaning the
Township's parking lots. During his shift, he was involved in a
fight with a member of the public, his neighbor Peter Pancaro.
Torsiello and Pancaro exchanged words when Torsiello was
working in a lot on William Street and Pancaro was near the corner
of that street and Franklin Avenue. Torsiello said words to the
effect of "What did you say mother*****r?"
Pancaro continued to walk away from Torsiello. Torsiello
could have resumed his work and avoided Pancaro by driving his
work truck to the next location or walking there by a different
route. Torsiello also could have walked away or retreated.
Instead, Torsiello "instigated and initiated a confrontation with
Pancaro by walking in his direction and approaching him."
Torsiello walked approximately 150 feet to confront Pancaro.
Torsiello then "chest-bumped with [Pancaro] and became involved
2 A-1679-15T1
in a physical altercation with him." Torsiello admittedly "grabbed
Pancaro and drove or shoved him into the brick wall of [a] shop."
Two police cars arrived on the scene. Torsiello's direct
supervisor Michael Lombardozzi also arrived. Torsiello told
Lombardozzi what he had said and done. Lombardozzi reported this
to DPW superintendent Michael Luzzi.
Upon receiving Luzzi's report of the incident, Joseph
Scarpelli, the commissioner and director of the DPW, ordered that
Torsiello be sent home and placed on immediate suspension. For
reasons discussed below, the Township issued two Final Notices of
Disciplinary Action (FNDA), each memorializing that the charge of
conduct unbecoming had been sustained against Torsiello. The
second FNDA additionally terminated Torsiello's employment.
Torsiello appealed both FNDAs to the CSC, which transmitted the
appeals to the Office of Administrative Law (OAL), where they were
consolidated.
A nine-day OAL hearing commenced on January 9, 2014.
Lombardozzi, Luzzi, and Scarpelli, testified concerning
Torsiello's disciplinary history. Luzzi and Scarpelli testified
about the reasons for Torsiello's suspension and termination. The
ALJ credited Lombardozzi, Luzzi, and Scarpelli as "forthright and
credible witnesses" who "presented detailed and candid testimony."
3 A-1679-15T1
The ALJ concluded Torsiello engaged in "[c]onduct unbecoming
a public employee." N.J.A.C. 4A:2-2.3(a)(6). The ALJ found
Torsiello's unbecoming conduct was sufficiently egregious to
warrant termination even without considering his disciplinary
history, but also found his earlier infractions lent additional
support for his termination. Thus, based on the totality of the
circumstances, the ALJ agreed termination was the appropriate
discipline. However, the ALJ also found that Torsiello was
entitled to back pay due to procedural violations.
Torsiello appealed to the CSC. The CSC conducted a de novo
review of the OAL proceedings and issued a November 5, 2015 final
administrative action. The CSC adopted the ALJ's factual findings
and affirmed her upholding of the Township's decision to terminate
Torsiello. However, the CSC rejected the ALJ's recommendation to
award Torsiello back pay, finding his suspension was proper.
Torsiello filed this appeal.
II.
We must hew to our standard of review. "Appellate courts
have 'a limited role' in the review of [CSC] decisions." In re
Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway
State Prison, 81 N.J. 571, 579 (1980)). "An appellate court
affords a 'strong presumption of reasonableness' to an
administrative agency's exercise of its statutorily delegated
4 A-1679-15T1
responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014)
(citation omitted). "In order to reverse an agency's judgment,
an appellate court must find the agency's decision to be
'arbitrary, capricious, or unreasonable, or [] not supported by
substantial credible evidence in the record as a whole.'"
Stallworth, 208 N.J. at 194 (quoting Henry, 81 N.J. at 579-80).
Our review of the CSC's factual findings is limited to
whether the findings made could reasonably
have been reached on sufficient credible
evidence present in the record, considering
the proofs as a whole, with due regard to the
opportunity of the one who heard the witnesses
to judge of their credibility, and . . . with
due regard also to the agency’s expertise
where such expertise is a pertinent factor.
[Sager v. O.A. Peterson Constr. Co., 182 N.J.
156, 164 (2004) (citation omitted).]
III.
Torsiello argues that the Township failed to prove he engaged
in conduct unbecoming a public employee and that the CSC's decision
was arbitrary, capricious, and unreasonable. We disagree.
Torsiello argues the factual findings of the ALJ and CSC were
belied by the record. To the contrary, there was ample evidence
to support the ALJ's findings that Torsiello called Pancaro a
"mother*****r," instigated a confrontation by walking
approximately 150 feet to Pancaro, chest-bumped him, and became
5 A-1679-15T1
involved in a physical altercation, grabbing him and shoving him
into a brick wall.
Torsiello relies on his own testimony before the ALJ.
However, the ALJ found Torsiello's testimony about the altercation
to be "inherently improbable and irreconcilable with, and
discredited in significant respects by, his sworn prior statements
before [the] unemployment [hearing officer] and other credible
evidence in the record." As noted by the CSC, the ALJ "explicitly
delineated her credibility findings, identifying [Torsiello]'s
inconsistent statements and implausible testimony."1
The ALJ had ample reasons not to credit Torsiello's trial
testimony. In particular, Torsiello says he was initially berated
with profanity, but the ALJ found insufficient credible evidence
to show what was said except that Torsiello admitted to Lombardozzi
that he said to Pancaro, "What did you say, mother*****r?"
Torsiello argues that he did not seek out Pancaro, but the ALJ
credited the contrary testimony of Pancaro as well as Torsiello's
admission to Lombardozzi that Torsiello had walked to Pancaro and
chest-bumped him. The ALJ found Torsiello's claim that Pancaro
walked toward him to be "irreconcilable with the consistent
1
We do not have a transcript of Torsiello's testimony at his
unemployment hearing. However, he admitted he testified
differently at the unemployment hearing and at the OAL hearing,
and the ALJ described several disparities.
6 A-1679-15T1
testimony of witnesses," including Pancaro, whom the ALJ found to
be more credible than Torsiello. The ALJ found the evidence did
not demonstrate that Pancaro attacked Torsiello. Torsiello
contends all he could do was ward off Pancaro's blows, but he
admitted he grabbed Pancaro and pushed him against the brick wall.2
Torsiello also cites the police report written by responding
Officer Eric Stabinski which stated that Torsiello told the
officers at the scene that "Pancaro punch[ed] him in the face"
after a verbal dispute. The narrative in the police report merely
records that right after the altercation, both Torsiello and
Pancaro claimed to have been attacked by the other man. As such,
nothing in the report refutes the ALJ's findings. Torsiello also
cites Stabinski's testimony that Pancaro was agitated and verbally
abusive towards Torsiello after the altercation, but that does not
prove Torsiello did not engage in unbecoming conduct during the
altercation. Indeed, Stabinski testified that Pancaro's behavior
at the scene was normal for someone who had been attacked.
Giving due regard to the ALJ's opportunity to see and hear
the witnesses, we find no basis to overturn her credibility
determination. Thus, there was sufficient credible evidence to
2
Torsiello weighed about 200 pounds, while Pancaro weighed about
160 pounds.
7 A-1679-15T1
support the CSC's findings concerning Torsiello's role in the
confrontation.
There was also ample testimony supporting the ALJ's finding
that Torsiello "knew, or reasonably should have known, that it is
unbecoming conduct to engage in a physical fight with a resident
on a public street, particularly when he was on duty and wearing
his work uniform." Lombardozzi testified he had repeatedly warned
all his workers that fighting is unacceptable and would result in
termination, and that "anyone who works for [DPW] knows [that]."
Luzzi testified that, regardless of what had been said, Torsiello
"never should have been involved in a fight with a member of the
public," and "[h]e should have walked away."
Moreover, his engagement in such conduct demonstrated a
failure to use good judgment and to act in a responsible manner.
Thus, as the ALJ properly found, "[i]rrespective of whatever words
may have been exchanged, [Torsiello]'s actions were not warranted
or justified; [Torsiello] . . . should have walked away."
Torsiello argues his conduct did not rise to the level of
conduct unbecoming. The ALJ and CSC correctly ruled that it was
conduct unbecoming for a public employee on duty and in uniform
to call a member of the public a "mother*****r," approach him to
instigate a confrontation, chest-bump him, and become involved in
a physical altercation, driving him into a brick wall.
8 A-1679-15T1
"Conduct unbecoming a public employee," N.J.A.C. 4A:2-
2.3(a)(6), is an "'elastic'" phrase encompassing "'"any conduct
which adversely affects . . . morale or efficiency [or] which has
a tendency to destroy public respect for municipal employees and
confidence in the operation of municipal services."'" Karins v.
City of Atlantic City, 152 N.J. 532, 554 (1998) (citations
omitted). Torsiello concedes that engaging in a fight may
constitute conduct unbecoming a public employee. As the ALJ found,
to allow a public employee in uniform and on duty to call a member
of the public a "mother*****r," instigate a confrontation, chest-
bump him, and then drive him into a wall would tend "to destroy
public respect for [municipal] employees and public confidence in
the operation of the [municipal] department[]." Id. at 557; see
id. at 555; Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338,
362 (2013) (finding conduct unbecoming when an off-duty police
officer to "became involved in a public altercation" with another
off-duty officer); Hartmann v. Police Dept. of Ridgewood, 258 N.J.
Super. 32, 34, 40 (App. Div. 1992) (finding conduct unbecoming
when off-duty police officers engaged in a fistfight and wrestling
match).
Thus, the CSC properly found Torsiello's actions were
unbecoming. Under our standard of review, there is no basis for
9 A-1679-15T1
concluding that the CSC's decision was arbitrary, capricious, or
unreasonable.
IV.
Torsiello next argues that even assuming a finding of conduct
unbecoming a public employee, his termination should be reversed
because the punishment contravenes the principles of progressive
discipline. "The concept of progressive discipline" seeks "to
promote proportionality and uniformity in the rendering of
discipline of public employees." Stallworth, 208 N.J. at 195.
"[T]he concept of progressive discipline has
been utilized in two ways": (1) to "ratchet-
up" or "support [the] imposition of a more
severe penalty for a public employee who
engages in habitual misconduct"; and (2) "to
mitigate the penalty" for an employee who has
a record largely unblemished by significant
disciplinary infractions.
[Id. at 196 (quoting In re Herrmann, 192 N.J.
19, 30-33 (2007)).]
"[P]rogressive discipline is a flexible concept, and its
application depends on the totality and remoteness of the
individual instances of misconduct that comprise the disciplinary
record," including their number, "their comparative seriousness,"
and their relationship to "the present conduct." Id. at 199.
Torsiello's disciplinary record shows his aggressive, abusive, and
assaultive behavior toward Pancaro was preceded by several
instances of misconduct involving aggressive, abusive, and
10 A-1679-15T1
threatening behavior which were serious enough to cause him to be
suspended and warned of termination.
On June 8, 2004, Torsiello was removed from the mechanics
garage and reassigned to the roads department due to ongoing
problems he had with Patrick Buccino, a co-worker with whom he
shared an office space in the mechanics shop. That afternoon,
Buccino discovered the shared office area had been vandalized, the
furniture had been damaged, and a toy action figure with a rod or
spike through its head had been left on Buccino's desk. Torsiello
admitted causing some of the damage. Luzzi ordered Torsiello to
remove his belongings. Torsiello became upset, yelled, and cursed
at Luzzi.
On July 6, 2004, Torsiello cursed at Buccino in front of a
DPW supervisor. Luzzi issued an official written warning to
Torsiello that "[t]his behavior is unacceptable and will not be
tolerated," and that "any future incidents involving threatening
or using profanities at Pat Buccino or any type of insubordination
will result in a three-day suspension without pay or possible
termination of employment."
On October 1, 2004, Torsiello refused to clean up a spill,
Lombardozzi sent him home and suspended him for three days for
insubordination, and Torsiello kicked a door and cursed at
Lombardozzi. Luzzi sent another written warning to Torsiello
11 A-1679-15T1
which stated, "any form of insubordination will cause you a
suspension without pay [and] [t]he next incident will cause
possible termination of employment."
On October 12, 2004, Torsiello was suspended for eight days
after he cursed at Buccino and threatened that he "would put
[Buccino] down right here." Luzzi sent another written warning
to Torsiello that "[t]his behavior is unacceptable and will not
be tolerated" and "this is your third and final warning [and]
[y]our next incident will cause you to be terminated from your
position."
On November 12, 2004, Torsiello, Luzzi, and a union
representative signed an agreement which noted Torsiello's history
of being disciplined and suspended for "using profanity and
threatening a fellow employee," and which agreed that "any further
incidents of such a nature may result in [Torsiello's] discipline
and/or termination."
Torsiello's assertion that the ALJ and CSC did not consider
progressive discipline is incorrect. Both discussed the
principles of progressive discipline and Torciello's disciplinary
record in determining that termination was appropriate. The ALJ
noted that Torsiello's current charge was not "an aberration in
an otherwise unblemished career and that he had received
counselling, warnings, and a three-day and an eight-day suspension
12 A-1679-15T1
stemming in large part from incidents that implicated verbal
disputes with a fellow employee, confrontational behavior, and
anger management." The ALJ further observed that Torsiello has
been explicitly, "repeatedly and sufficiently notified that his
behavior must change, provided numerous opportunities to correct
his shortcomings, and given fair warning of the consequences of
failing to act in an appropriate manner."
Both the ALJ and the CSC acknowledged that Torsiello's
multiple disciplinary issues occurred seven years earlier and thus
were remote. However, they remained powerful evidence as they
showed Torsiello repeatedly engaged in similar aggressive and
violent conduct, and was repeatedly warned, suspended, and
threatened with termination. As the CSC noted, Torsiello's
disciplinary history gave him "ample notice that any further
incidents of inappropriate behavior involving threatening or using
profanities would be the basis for further disciplinary action up
to and including removal," but he engaged in "similar conduct" in
this more serious altercation.
Moreover, both the ALJ and the CSC gave considerable weight
to "the gravity of [Torsiello]'s infraction" in the examination
of the appropriate penalty to impose. The CSC noted the diminution
of public trust that would result from a public employee "in his
work uniform and engaged in an altercation while on duty."
13 A-1679-15T1
Additionally both the ALJ and CSC noted as an aggravating factor
that Torsiello had the physical altercation with a member of the
public. This factor was "egregious and inexcusable in nature,"
and made the altercation worse than Torsiello's previous workplace
infractions involving a co-worker.
In any event, "neither this court nor our Supreme Court
'regard[] the theory of progressive discipline as a fixed and
immutable rule to be followed without question.'" In re Restrepo,
449 N.J. Super. 409, 425 (App. Div. 2017) (quoting In re Carter,
191 N.J. 474, 484 (2007)). "[P]rogressive discipline is not a
necessary consideration when reviewing an agency head's choice of
penalty when the misconduct is severe, when it is unbecoming to
the employee's position or renders the employee unsuitable for
continuation in the position, or when application of the principle
would be contrary to the public interest." Herrmann, 192 N.J. at
33.
Torsiello's misconduct was conduct unbecoming his position,
which justifies termination "without regard to whether the
employees have had substantial past disciplinary records." Id.
at 34. His misconduct was also severe, because he instigated a
physical altercation with a member of the public while in uniform
on duty. Moreover, he did so on a public sidewalk on a commercial
street during business hours, exposing other members of the public
14 A-1679-15T1
to the danger and disgrace arising from his misconduct.
Torsiello's misconduct rendered him unsuitable to continue in his
position with the Township, and made such continuation against the
public interest. Scarpelli testified: "You can't have public
employees fighting with residents." Luzzi testified, "you can't
have a firecracker around. I got to think about the safety of
everyone else."
Torsiello's misconduct was comparable to other misconduct
found "sufficiently severe that dismissal is appropriate
regardless of the extent of one's prior history of discipline."
Carter, 191 N.J. at 486 (a police officer's sleeping on duty);
Ruroede, 214 N.J. at 362-63 (finding off-duty police officer's
involvement in a public altercation justified termination); see
also Hermann, 192 N.J. at 25, 33-39 (a DYFS worker holding a
lighter in front of a child's face); Restrepo, 449 N.J. Super. at
425 (a prison guard leaving his post for over an hour).
Courts "'accord substantial deference to an agency head's
choice of remedy or sanction.'" Herrmann, 192 N.J. at 34-35.
"Accordingly, when reviewing administrative sanctions, appellate
courts should consider whether the 'punishment is so
disproportionate to the offense, in the light of all of the
circumstances, as to be shocking to one's sense of fairness.'"
Stallworth, 208 N.J. at 195 (quoting Carter, 191 N.J. at 484).
15 A-1679-15T1
Moreover, as our Supreme Court has "cautioned, courts should take
care not to substitute their own views of whether a particular
penalty is correct for those of the body charged with making that
decision." Carter, 191 N.J. at 486. We find no basis to overturn
the sanction selected by the ALJ and the CSC.
V.
Torsiello argues the CSC improperly overturned the ALJ's
conclusion he was entitled to back pay because his suspension was
procedurally deficient. However, the CSC properly rejected each
of the bases for the ALJ's conclusion.
Immediate suspension without pay is permitted by statute and
regulation. N.J.S.A. 11A:2-13 permits
the immediate suspension of an employee
without a hearing if the appointing authority
determines that the employee is unfit for duty
or is a hazard to any person if allowed to
remain on the job or that an immediate
suspension is necessary to maintain safety,
health, order or effective direction of public
services.
N.J.A.C. 4A:2-2.5(a)(1) provides:
An employee may be suspended immediately and
prior to a hearing where it is determined that
the employee is unfit for duty or is a hazard
to any person if permitted to remain on the
job, or that an immediate suspension is
necessary to maintain safety, health, order
or effective direction of public services.
16 A-1679-15T1
The ALJ found there was "insufficient evidence demonstrating
that [the Township] immediately suspended [Torsiello] based upon
a determination that he was unfit for duty, he was a hazard to any
person if permitted to remain on the job, or that action was
necessary to maintain safety, health, order or effective direction
of public services[.]"
To the contrary, Lombardozzi and Luzzi testified that on the
morning of August 9, after Lombardozzi spoke to Torsiello and
Pancaro at the scene, Lombardozzi informed Luzzi about the
incident, including that Torsiello admitted calling Pancaro
"mother*****r," walked 150 feet to reach Pancaro, and chest-bumped
him. Luzzi then communicated that information to Scarpelli. Luzzi
further testified that he reviewed Torsiello's personnel file
"[b]ecause there was a previous episode that Mr. Torsiello was
involved in back in 2004," as well as "some disciplinary actions."
Luzzi reported those incidents to Scarpelli, who decided to
immediately place Torsiello on suspension without pay. Scarpelli
testified that he "was worried about [Torsiello] being a danger
because of his past history and this incident." Thus, there was
credible evidence in the record that before placing Torsiello on
immediate suspension, the Township determined "that [Torsiello]
was unfit for duty, he was a hazard to any person if permitted to
remain on the job, or that action was necessary to maintain safety,
17 A-1679-15T1
health, order or effective direction of public services." N.J.S.A.
11A:2-13. As the CSC found, there was ample evidence to support
that determination.
The ALJ also found that there was insufficient evidence that
the Township had "apprised [Torsiello] either orally or in writing,
of why an immediate suspension [was] sought, the charges and
general evidence in support of the charges and provided [him] with
sufficient opportunity to review the charges and the evidence in
order to respond to the charges." N.J.A.C. 4A:2-2.5(b). However,
after placing Torsiello on immediate suspension on August 9, 2011,
Luzzi sent Torsiello and his union representative a letter dated
August 10, which advised that Torsiello was suspended for four
days "for being involved in an altercation (street fight) with a
resident while on town time," that such behavior was "conduct
unbecoming a public employee," and that "[f]urther action may be
taken pending an investigation." The CSC properly found that
"[t]here was no doubt that [Torsiello] was well aware of the
charges against him by August 10, 2011."
Torsiello contends the Township did no investigation. To the
contrary, Lombardozzi investigated on the scene, and Luzzi
researched Torsiello's disciplinary history. Scarpelli testified
that he conducted an investigation by speaking to Torsiello's
supervisors and reviewing Torsiello's personnel file, and that he
18 A-1679-15T1
found the signed 2004 agreement in the personnel file and decided
to move forward with seeking Torsiello's removal.
Torsiello and his union representative were apprised of this
course of action at a meeting with Luzzi on August 12. There, as
required by N.J.A.C. 4A:2-2.5(a)(1), the Township issued a
Preliminary Notice of Disciplinary Action (PNDA) which listed the
charges against Torsiello, the facts supporting the charges, and
the Township's intention to seek his removal, and advised he was
on immediate suspension effective August 16. An August 16 letter
from Luzzi reiterated to Torsiello's union representative that the
Township had moved forward with their plan "to terminate
[Torsiello] on charges of conduct unbecoming a public employee as
we discussed at our last meeting on August 12."
Under N.J.A.C. 4A:2-2.5(c), Torsiello requested a
departmental hearing after receiving the PNDA. A hearing was
scheduled for September 1, which complied with the requirement
under N.J.A.C. 4A:2-2.5(d) that the hearing be held within thirty
days of the issuance of the PNDA.
On September 1, immediately prior to the commencement of the
scheduled hearing, the parties elected to enter into a settlement
agreement, under which Torsiello would have avoided termination.
Pursuant to the settlement agreement, the Township agreed to
withdraw the August 12 PNDA subject to several conditions,
19 A-1679-15T1
including: Torsiello would be suspended for sixty days retroactive
to August 10; Torsiello would be demoted; Torsiello would have to
submit to a psychological evaluation; Torsiello would undergo
counseling for anger management; and, Torsiello and his union
representative would execute a last chance agreement.
Furthermore, the settlement agreement provided that Torsiello pled
guilty to the charge of conduct unbecoming a public employee, and
that he would be terminated if he violated any term of the
settlement agreement or last chance agreement. On September 2,
the Township issued an FNDA memorializing that charge and providing
for his suspension and demotion effective September 5.
However, on September 15, Torsiello appealed the FNDA to the
CSC and withdrew his consent to the settlement agreement. The
Township issued a new PNDA dated, November 7, 2011, which sought
Torsiello's termination effective August 16, based upon the public
altercation and his failure to comply with the settlement agreement
and last chance agreement. Following a disciplinary hearing, the
Township issued a second FNDA on June 22, 2012.
The CSC ruled that Torsiello was properly apprised as to why
his suspension was sought when he was sent home on August 9 and
by Luzzi's August 10 letter. The CSC further ruled that the August
12 meeting satisfied the procedural requirements of N.J.A.C. 4A:2-
20 A-1679-15T1
2.5(b) because Torsiello was given two days to review the charges
and the opportunity to respond to them at the meeting.
The ALJ also found that "to the extent that [Torsiello]'s
immediate suspension extended beyond six months, it was contrary
to N.J.S.A. 11A:2-20 and N.J.A.C. 4A:2-2.4." The CSC properly
rejected that conclusion because those provisions are not
applicable to Torsiello's suspension pending a hearing. N.J.S.A.
11A:2-20 governs "disciplinary action" and states: "Except as
provided for in N.J.S.A. 11A:2-13, an appointing authority may not
impose a suspension or fine greater than six months." Ibid.; see
N.J.A.C. 4A:2-2.4(a) ("No suspension or fine shall exceed six
months[.]"). N.J.S.A. 11A:2-20 and N.J.A.C. 4A:2-2.4(a) only bar
the imposition of more than six months of suspension "as a
punishment," on the theory that "if an employee's offense, coupled
with his admissible past record, is serious enough to dictate a
suspension from duty for more than 6 months, it merits dismissal
instead." Cosme v. Borough of E. Newark Twp. Comm., 304 N.J.
Super. 191, 204 (App. Div. 1997) (quoting Town of West New York
v. Bock, 38 N.J. 500, 525-26 (1962)).
Here, however, Torsiello was not issued a suspension in excess
of six months as a punishment. Rather, as set forth above, he was
placed on immediate suspension pending a hearing because the
Township believed that he was unfit for duty and would be a hazard
21 A-1679-15T1
if permitted to remain on the job until a hearing could be held.
Such an immediate suspension was justified not under the penalty
provisions but under N.J.S.A. 11A:2-13, which is explicitly
excepted from N.J.S.A. 11A:2-20's six-month limit. He maintained
that status while awaiting the disposition of his charges by the
OAL, which was delayed by his decision to settle and then withdraw
from the settlement. See Ensslin v. Twp. of No. Bergen, 275 N.J.
Super. 352, 361 (App. Div. 1994) (finding the employee "waived his
right to a hearing within thirty days of the [PNDA] when he agreed
to hold the hearing 'in abeyance' pending settlement
discussions."); see also Goodman v. Dep't of Corr., 367 N.J. Super.
591, 594, 597 (App. Div. 2004). Thus, his suspension complied
with the governing statutes and the CSC correctly ruled that he
was not entitled to back pay.
Torsiello argues the Township violated due process by failing
to provide him with discovery and general evidence before the
September 1 departmental hearing. However, he has not shown any
violation of N.J.S.A. 11A:2-13 and N.J.A.C. 4A:2-2.5, or any reason
it would entitle him to back pay. In any event, Torsiello was
supplied with the PDNA and the general evidence against him prior
to the September 1 hearing. Luzzi testified that he spoke with
Torsiello at the August 12 meeting about the incident and the
charges, that the police report was shown to Torsiello at that
22 A-1679-15T1
meeting, and that he gave a copy of Torsiello's personnel file to
Torsiello's wife at her request prior to the September 1 hearing.
Further, there is no suggestion that Torsiello asked for additional
discovery, or that there was additional written discovery that
could have been provided. In any event, Torsiello was not
prejudiced by this alleged denial of discovery because Torsiello
and the Township elected to enter into a settlement agreement on
the morning of September 1 before the scheduled hearing commenced
and the hearing was cancelled. Thus, Torsiello had ample time to
examine the evidence before his ultimate departmental hearing in
January 2014, where he had another opportunity to respond. See
Ensslin, 275 N.J. Super. at 361 (finding "procedural
irregularities at the departmental level are considered 'cured'
by a subsequent plenary hearing at the agency level").3
Torsiello further argues that the CSC decision contravened
the deference owed to the ALJ's ruling that Torsiello should be
granted back pay. He asserts that while the CSC "has the authority
3
We have subsequently stated: "Ensslin only involved an
inconsequential procedural delay. The Ensslin decision cannot be
read to mean that any irregularity in the disciplinary process,
no matter how serious, can be cured by a subsequent evidentiary
hearing." O'Rourke v. City of Lambertville, 405 N.J. Super. 8,
22 (App. Div. 2008) (finding an unauthorized, biased investigation
was not cured in a hearing). However, as in Ensslin, the
procedural deficiencies complained about by Torsiello were
inconsequential and non-prejudicial. Thus, any lack of process
was cured by the hearings before the ALJ.
23 A-1679-15T1
to reverse or modify an ALJ's decision, it may only do so if it
is not supported by [] credible evidence or was otherwise
arbitrary," citing N.J.S.A. 52:14B-10(c).
However, the statute states, in relevant part:
In reviewing the decision of an administrative
law judge, the agency head may reject or
modify findings of fact, conclusions of law
or interpretations of agency policy in the
decision, but shall state clearly the reasons
for doing so. The agency head may not reject
or modify any findings of fact as to issues
of credibility of lay witness testimony unless
it is first determined from a review of the
record that the findings are arbitrary,
capricious or unreasonable or are not
supported by sufficient, competent, and
credible evidence in the record.
[Ibid. (emphasis added).]
The CSC's rejection of the ALJ's recommendation that back pay be
awarded to cure procedural deficiencies did not reject the ALJ's
findings of fact as to issues of credibility of lay witnesses.
Rather, as discussed above, the CSC rejected the ALJ's back pay
recommendation because the ALJ's conclusion that the length of
Torsiello's immediate suspension was prohibited by statute was
erroneous, and because her conclusion that the Township failed to
follow the procedure for immediately suspending Torsiello was not
supported by the record.
Affirmed.
24 A-1679-15T1