In the Matter of John Tayag-Kosky ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1537-22
IN THE MATTER OF JOHN
TAYAG-KOSKY, TOWN OF
KEARNY, FIRE DEPARTMENT.
_____________________________
Submitted March 20, 2024 – Decided July 31, 2024
Before Judges Gummer and Walcott-Henderson.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2021-1785.
Feeley & LaRocca, LLC and The Blanco Law Firm,
LLC, attorneys for appellant John Tayag-Kosky (John
D. Feeley and Pablo N. Blanco, of counsel and on the
brief).
Matthew J. Platkin, Attorney General, attorney for
respondent New Jersey Civil Service Commission
(Brian D. Ragunan, Deputy Attorney General, on the
statement in lieu of brief).
Appruzzese, McDermott, Mastro & Murphy, PC,
attorneys for respondent Town of Kearny (Boris
Shapiro, of counsel and on the brief).
PER CURIAM
Appellant John Tayag-Kosky appeals from a January 18, 2023 final
administrative agency decision of the Civil Service Commission (the
Commission) upholding the decision of respondent the Town of Kearny to
terminate him for conduct unbecoming a public employee, neglect of duty,
insubordination, and other sufficient cause pursuant to N.J.A.C. 4A:2-2.3(a),
as well as violations of several Kearny Town Code provisions premised on
allegations that Kosky, while employed as a full-time firefighter for the Town
of Kearny Fire Department (the Department), actively concealed that he was
employed as a full-time military recruiter and an active-duty member of the
Army National Guard.
Kosky admits that he was employed by both organizations from 2014
through 2018 but claims termination was too harsh a penalty and violated
principles of progressive discipline because no rule of the Department bars
him from holding secondary employment and the Department failed to
consider his prior unblemished record. The Commission adopted the initial
decision of the Administrative Law Judge (ALJ) rejecting Kosky's
explanations for his actions and finding Kosky's removal appropriate under the
circumstances. We affirm.
The essential facts are undisputed. Prior to applying to the Department,
Kosky served as a full-time employee and active member of the Army
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National Guard. In October 2009, Kosky applied for a full-time position as a
firefighter with the Department. During this time, Steven Dyl served as
Department Chief. On his employment application, Kosky disclosed his then-
present employment with the Guard as a full-time (forty-hours per week)
Recruiting and Retention NCO Career Counselor. 1
After accepting the firefighter position, Kosky was required to attend the
Fire Academy—a four-month course to obtain required firefighter and
emergency medical technician (EMT) certifications—beginning in March
2010. Kosky missed the first day of the training because he had failed to
notify his military command and to obtain a release from service to attend the
Fire Academy. Kosky decided to resign 2 from the Recruiting and Retention
Command with the Guard and was relieved from active-duty in order to pursue
full-time employment in the Department.3
1
At the Office of Administrative Law (OAL) hearing, he testified that from
1992 to 2001, he was a part-time reservist but transitioned to a full-time
Recruiter in 2006.
2
In his resignation letter, he indicated he would continue recruiting for the
Guard Recruiting Assistant Program on a part-time basis.
3
Chief Dyl testified that he had interviewed and recommended Kosky for hire
and that after Kosky was hired, issues arose because Kosky "had missed the
A-1537-22
3
Kosky served his first tour of duty as a firefighter from June 2010
through September 2010. According to Chief Dyl, the firefighter schedule was
a 24/72 schedule: "as one on, three off . . . you work one day, [twenty-four]
hours, you're off three days, . . . [i]t's a rotating schedule and it goes over an
eight[-]week cycle where it again repeats itself." And, "[firefighters] are
expected to be available [twenty-four] hours a day, [seven] days a week, in
case there's an emergency in town and we need further assistance."
In October 2010, Kosky advised Chief Dyl that he had been ordered
back to active-duty by the Guard. At the OAL hearing, Kosky testified that
from October 2011 through February 2011, he had used his statutory leave
entitlement under the Uniformed Services Employment and Reemployment
Rights Act, 38 U.S.C. 4312(a) (USERRA),4 to take a leave of absence from the
Department because his son had been diagnosed with leukemia and he had to
(continued)
first day of the academy," and "it was explained to him that he's got to
participate in all aspects of the academy."
4
Under USERRA a person who is absent from employment because of
military service of less than five years is entitled to re-employment rights and
benefits if they have "given advance written or verbal notice of such service to
[their] employer . . . and . . . reports to, or submits an application for re-
employment to, such employer[.]" Ibid.
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"take away something . . . so that [he] could give [his] son full-time attention
while doing . . . [his] military mission." Chief Dyl confirmed Kosky had
submitted a request for military leave under USERRA and was placed on a
military leave of absence beginning in October 2010.
It is undisputed that Kosky was placed on military leave and absent from
the Department from October 2010 through July 2014, nearly three-and-one-
half years. During this period, Kosky submitted several requests for military
leave labeled as recalls to active duty and corresponding active-duty orders
from the Guard including requests for leave from: October 2010 through
February 2011, March 2011 through June 2011, and July 2011 through July
2014.
Kosky disputed that he was obligated to inform the Department when he
returned to the Department in July 2014 that he remained on active-duty status
with the Guard, stating "there's no policy in Kearny . . . or anything that I saw
in USERRA that stated that I had to . . . give orders." He further testified that
he had not produced his active-duty orders upon his return to the Department
in 2014 because he chose "not [to] utilize [his] right for . . . USERRA."
At the OAL hearing, Chief Dyl testified it was his understanding that
when Kosky returned to the Department in July 2014, he was on in-active duty
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for the Guard while serving as a full-time firefighter, when in fact Kosky's
active-duty orders from the Guard had been extended from July 2014 to July
2017.
According to Chief Dyl, Kosky worked as a full-time firefighter from
2014 to 2018 and during that time, he approved several leave requests for
Kosky to attend military drills as it was his understanding Kosky was a part-
time reservist who "did recruitment" and "weekend drills."5 Chief Dyl also
testified that Kosky's requests for military leave—all except one dated April
15, 2017—for the period 2015 to 2018 indicated that he was on in-active duty
in the Guard when in fact, Kosky was an active-duty member beginning in
October 2010.
Chief Dyl became aware of Kosky's active-duty status in November
2018, when he questioned an extended leave request that Kosky had submitted
to attend a military program and asked him to produce his military orders. In
response, Kosky provided a memorandum from a sergeant with the Guard of
5
From 2015 through 2018, Kosky submitted a total of six military leave
requests for weekend military drills, which required him to request only one
day off: May 13, 2015 (one-day drill training); March 18, 2017 (one-day drill
training); two requests from April 15, 2017 (one-day drill training); November
23, 2018 (one-day drill training); and January 12, 2018 (one-day drill training).
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equal rank, stating that Kosky "had been ordered back to active duty for a
mandatory training," which raised further questions because, according to
Chief Dyl, he would typically "get a formal letter explaining the dates and
times of . . . active duty . . . from a higher ranking individual in the [Guard]."
The orders Kosky presented to Dyl were in fact not valid military orders from
a ranking official, and when he recognized that fact, Chief Dyl contacted the
Department of Military Affairs.
In a letter dated December 18, 2018, a representative from the
Department of Military Affairs confirmed that the memorandum Kosky had
submitted was not an official military order. Chief Dyl testified that he had
advised Kosky of his findings and Kosky eventually provided him with an
active-duty order dated May 6, 2017, for the period from July 2017 through
July 2020. Chief Dyl then requested for Kosky to produce other military
orders, and, in response, Kosky provided an earlier order dated May 15, 2014,
indicating that he had been on active duty from July 5, 2014, through July 4,
2017. Chief Dyl expressed shock that Kosky had been on active duty since
2014 because if he was on active military duty, "he should have been with the
military, not the Town of Kearny." According to Chief Dyl, he questioned
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whether Kosky had been on active-duty with the military "his whole time with
the [D]epartment."
Thereafter, Chief Dyl received a letter from Lieutenant Colonel Joseph
Gagnon from the Guard, advising that Kosky was "assigned as a full[-]time
recruiter within the Recruiting and Retention Battalion" and the Guard only
"permit[s] recruiters to hold a second part[-]time job after duty hours" if "they
don't interfere with the duty of recruiting." Lieutenant Colonel Gagnon also
advised he was no longer approving Kosky to work as a civilian for the
Department while on active-duty orders that were effective January 15, 2019.
The Department subsequently placed Kosky on military leave. 6
Kosky returned to work for the Department in March 2020.7 Chief Dyl
retired in July 2020, and his successor, Chief Joseph Mastandrea conducted the
ensuing investigation into the allegations of misconduct by Kosky, including
insubordination, conduct unbecoming a firefighter, falsifying documents,
6
Chief Dyl advised Kosky that the Department would investigate and
potentially take disciplinary action upon his return to the Department because
charges could not be filed against him while he was on military leave.
7
Kosky resigned from his full-time position as a Recruiter in the Guard in
good standing and notified the Department of his intention to return on March
2, 2020. Accordingly, he received a certificate of discharge from the Guard on
February 29, 2020.
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hiding his active-duty orders, submitting misleading requests for leave to
attend drills, neglect of duty, chronic absenteeism, and other sufficient cause.
In September 2020, Deputy Chief Bruce Kauffman, Deputy Chief Joseph
Ferraro, and a union representative interviewed Kosky about the allegations of
misconduct regarding his disclosures to the Department about his military
status from March 2010 to the present. And, in October 2020, following the
internal investigation into the allegations of misconduct against Kosky, the
Department filed a preliminary notice of disciplinary action (PNDA) against
Kosky. The Department terminated Kosky in May 2021 in its final notice of
disciplinary action.8
Kosky appealed and, as a contested case, the matter was assigned to an
ALJ for an OAL hearing. The plenary hearing was conducted over nine days.
At the hearing, Deputy Chief Ferraro testified that in their interview, Kosky
had explained the original "plan he concocted" was to get hired by the Jersey
City Police Department or Kearny Fire Department while still maintaining his
8
Shortly after issuing the PNDA, the Department amended it to include an
additional allegation arising from a shoulder injury Kosky had initially
reported as non-work related but subsequently reported as work-related. The
Department charged Kosky with false reporting of a workplace injury but
failed to substantiate the charge at trial.
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active-duty military career and he explained that by maintaining both careers
he would be entitled to receive both healthcare and retirement benefit
packages.
Department Chief Mastandrea also testified at the OAL hearing. He
summarized the basis for the charges, explaining that "for years Kosky hid the
fact that his active duty orders had been extended and then submitted
misleading requests to attend drills during that time frame and then ultimately
when asked for orders to attend training[,] . . . he submitted a falsified, or a
false memorandum to the same."
Chief Mastandrea also testified that Kosky had violated a provision of
the Kearny Town Code requiring members of the Department "[to] serve the
best interest of the [D]epartment by observing and reporting all matters
pertaining to and concerning its welfare." He asserted that "by not submitting
his active duty orders, it didn’t give the chief at the time the ability to make
the determination to put him on a military leave of absence." Chief
Mastandrea also confirmed Kosky had no prior disciplinary history with the
Department, but he felt Kosky "hiding the fact that he was an active duty
member of the military" was misconduct "in and of itself" sufficient to support
removal.
A-1537-22
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After considering the evidence, the ALJ concluded Kosky's testimony
was self-serving and incredible and that there was ample proof in the record to
sustain each of the charges. Specifically, the ALJ found Kosky had "made a
conscious decision to . . . slip between the cracks—and keep both military and
paramilitary commands in the dark" and that his testimony to the contrary was
not credible. The ALJ did not find credible Kosky's representation that he had
not thought it was necessary to inform the Department of his active-duty status
in 2014, instead finding he had engaged in a "deliberate shell game" and that it
was Kosky's intention "to keep both military and paramilitary chains of
command in the dark about his full-time employment with the other" because
"[h]e already knew what each would say, and he wanted to stay on both
salaries and benefits."
The ALJ also found that Kosky "knowingly and intentionally" had
produced a memorandum that was neither official nor authorized by his chain
of command to avoid "the burden of telling the full truth" regarding the reason
for his extended leave request in 2018. According to the ALJ, Kosky had
taken advantage of the fact that Chief Dyl would not have known the "wrong
aspects" of the memorandum that were obvious to his lieutenant and that it was
"simply not the equivalent of actually presenting [the Department] with his
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three-year active duty orders in both 2014 and 2017." On this point, the ALJ
further found that Kosky had "purposely failed" to disclose his active-duty
status because "he knew from his experience that both [the Department] and
the Guard . . . had issues with his accepting dual full-time positions in 2010-
2011."
The ALJ found it beyond dispute that Kosky had an obligation to inform
the Department of his active-duty status when he returned from leave in 2014
and his failure to do so was a material omission or misrepresentation. The
ALJ found that Chief Dyl and Chief Mastandrea's testimony supported a
finding that Kosky had an obligation to inform Kearny of his active-duty
status. In making this finding, the ALJ relied on Kearny Code sections 3-
63.1(b)(1) and 3-63.1(b)(11), which required Kosky to "devote [his] entire
time to the service of the Fire Department" and provided that "members of the
Fire Department shall at all times serve the best interest[] of the Fire
Department by observing and reporting all matters pertaining to and
concerning its welfare." The ALJ also highlighted Chief Dyl's testimony that
"by failing to disclose his active-duty status," Kosky "took the determination
and discretion as to the impact of his full-time military service on the welfare
of the Department out of their hands." The ALJ concluded that Kosky's
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"career-long, persistent acts of omission or commission . . . plainly constitute
conduct unbecoming a public employee and were detrimental to the chain of
command of the para-military organization of the . . . Department."
With respect to the USERRA, the ALJ found that contrary to Kosky's
assertion that the USERRA protected him against termination, he "was never
protected against termination of his Kearny employment . . . because he was
never discharged [from active duty]." She further found that Kosky's
testimony demonstrated a lack of understanding of the statute's protections
because he "did not have the right to pick and choose when to trigger [the]
USERRA" and "one of the central precepts of [the] USERRA is that a person
is protected from losing their civilian employment because of military
service[.]"
The Commission adopted the ALJ's findings and determination,
concluding the ALJ had conducted a thorough analysis of the record and
assessed the credibility of the witnesses. The Commission expressed its
wholehearted agreement with the ALJ, stating Kosky "made a deliberate
decision . . . to keep both military and paramilitary chains of command in the
dark" and his actions "plainly constitute conduct unbecoming of a public
employee and were detrimental to the chain of command" of the Department.
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I.
On appeal, Kosky argues a single point: the penalty of termination was
arbitrary and violated principles of progressive discipline because no rule of
the Department prohibits holding secondary employment and at no point was
he unable to fulfil his obligations to the Department.
"Appellate courts have a 'limited role' in the review of [Commission]
decisions." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v.
Rahway State Prison, 81 N.J. 571, 579 (1980)). "Ordinarily, an appellate court
will reverse the decision of the administrative agency only if it is arbitrary,
capricious or unreasonable or it is not supported by substantial credible
evidence in the record as a whole." Henry, 81 N.J. at 579-80. In reaching that
determination, courts must consider:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in
applying the legislative policies to the facts, the
agency clearly erred in reaching a conclusion that
could not reasonably have been made on a showing of
the relevant factors.
[Stallworth, 208 N.J. at 194 (quoting In re Carter, 191
N.J. 474, 482 (2007)).]
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"[A] 'strong presumption of reasonableness attaches to the actions of the
administrative agencies.'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div.
2001) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993)).
Moreover, "[a] reviewing court 'may not substitute its own judgment for the
agency's, even though the court might have reached a different result.'"
Stallworth, 208 N.J. at 194 (quoting Carter, 191 N.J. at 483).
Although the concept of progressive discipline, which promotes
uniformity and proportionality in the discipline of public employees, has long
been a recognized and accepted principle, see West N.Y. v. Bock, 38 N.J. 500,
523-24 (1962), we have also long acknowledged that the theory of progressive
discipline is not "a fixed and immutable rule to be followed without
question . . . recogniz[ing] that some disciplinary infractions are so serious that
removal is appropriate notwithstanding a largely unblemished prior record."
Carter, 191 N.J. at 484. "Thus, progressive discipline has been 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." Stallworth, 208 N.J. at 196-97 (citing In Re Herrmann,
192 N.J. 19, 33 (2007)).
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Further, deference to agency decisions "applies to the review of
disciplinary sanctions as well." Herrmann, 192 N.J. at 28. "In light of the
deference owed to such determinations, when reviewing administrative
sanctions, 'the test . . . is whether such punishment is so disproportionate to the
offense, in light of all the circumstances, as to be shocking to one's sense of
fairness.'" Id. at 28-29 (alteration in original) (quoting In re Polk, 90 N.J. 550,
578 (1982)). "The threshold of 'shocking' the court's sense of fairness is a
difficult one, not met whenever the court would have reached a different
result." Ibid.The burden is upon the appellant to demonstrate grounds for reversal.
McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002);
see also Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div.
1993) (holding that "[t]he burden of showing the agency's action was arbitrary,
unreasonable[,] or capricious rests upon the appellant"). Finally, we give "due
regard to the opportunity of the one who heard the witnesses to judge . . . their
credibility." Logan v Bd. of Rev., 299 N.J. Super. 346, 348 (App. Div. 1997).
Thus, we will not disturb the ALJ's credibility findings unless they were
"arbitrary or not based on sufficient credible evidence in the record as a
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whole." Cavalieri v. Bd. of Trs. of PERS, 368 N.J. Super. 527, 537 (App. Div.
2004).
II.
Applying those standards here, we discern no basis to reverse the
comprehensive findings of the ALJ that were adopted by the Commission.
Kosky admitted to the underlying facts the Department had used as the basis
for his termination, including that after he was hired by the Department, he
returned to active full-time duty with the Guard and failed to disclose his full-
time, dual employment to either the Guard or the Department. Critically,
Kosky also admitted he did not submit all active military orders to Chief Dyl
prior to taking leave. More particularly, he testified, "I chose whether or not I
want[ed] to hand in my orders," and that on his return from active duty in
2014, he did not advise the Chief that his active-duty orders had been
extended. Instead of challenging these facts, Kosky explained before the ALJ
that he believed he could hold both positions because there was no Department
rule or policy preventing him from holding both full-time positions, and he did
not provide his active-duty orders because Chief Dyl did not ask for them.
Nor do we find Kosky's termination shocking to our sense of fairness
such that reversal is warranted. Herrmann, 192 N.J. at 28-29 (quoting Polk, 90
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N.J. at 578). Kosky argues termination was not justified and violated
principles of progressive discipline since he had no prior discipline or
infractions with the Department. In making its determination on this issue, the
Commission reviewed the ALJ's detailed findings and conclusions, including
that Kosky's testimony was not credible and his actions warranted a departure
from progressive discipline. Progressive discipline is not "a fixed and
immutable rule to be followed without question" because "some disciplinary
infractions are so serious that removal is appropriate notwithstanding a largely
unblemished prior record." Stallworth, 208 N.J. at 196 (citing Carter, 191 N.J.
at 484); Herrmann, 192 N.J. at 34-36. The Commission's decision was clearly
supported by the record which showed Kosky deliberately deceived the
Department by failing to disclose he was holding two full-time positions in an
effort to gain personal advantage in the form of additional pension and health
benefits.
Having reviewed this record, we are satisfied the Commission's decision
is supported by sufficient credible evidence as a whole and the sanction of
removal was justified. See Carter, 191 N.J. at 484.
Affirmed.
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