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When is Final, Final?

AKA When can Major be Minor?

New Jersey governmental employers are keenly aware of the difference between what the laws say is minor discipline (e.g., suspension of 5 days or less) and major discipline (more than five days). This issue has been underscored now that police departments must reveal names of officers who have been subjected to “major” discipline of the six day or greater suspension variety. A recent case arising out of a Civil Service jurisdiction posed the question of whether a governmental employer or deciding tribunal can retract major discipline and reduce it to minor before hearing in order to avoid a lengthy appeal process. In the case of In the Matter of Mickey Young, Dkt. A-0400-20 (App. Div. Mar. 10, 2022) (approved for publication), the New Jersey Appellate Division was faced with the question of “whether an appointing authority [in this case, the New Jersey Department of Human Services] may unilaterally reduce a sanction from major to minor discipline after the employee is served with Final Notice of Disciplinary Action (FNDA) , thereby divesting the [Civil Service] commission of jurisdiction.” The Appellate Division answered the question in the affirmative, thereby rejecting Young’s appeal. Approximately three months prior to a September 2020 scheduled Office of Administrative Law ("OAL") hearing date the Department reduced Young’s suspension to five days. (note - governmental employers not subject to Civil Service generally have different procedural mechanisms than the OAL to decide major discipline). Based upon that action the Department claimed the Commission no longer had jurisdiction over Young’s appeal because it was now “minor discipline". For some reason Young and his union were affronted by the unilateral reduction in his penalty done to avoid a hearing, and sought to keep their appeal of the fifteen-day suspension alive. The Appellate Division panel rejected Young’s appeal, thereby affirming the Commission’s decision to dismiss the Civil Service Appeal. In so doing the Appellate Division rejected Young’s argument that his due process rights had been violated. The Court pointed out that Young could pursue an appeal of the five-day suspension through the parties’ collectively negotiated disciplinary procedures. The panel also found that, based upon the Civil Service statutes and regulations, the Department acted appropriately within those statutes and regulations in reducing the length of the suspension to five days, and that the “reduction” action stripped the Civil Service Commission of jurisdiction over Young’s appeal. We now know that an employer can reduce a penalty after the issuance of Final Notice of Disciplinary Action but before the beginning of a full-blown OAL hearing. Thus, the final notice is not “final” for purposes of the public employer’s reduction of the length of a suspension so as to deprive the Civil Service Commission of jurisdiction. Thus, like many Appellate decisions which are appropriately and necessarily limited on their face to the facts before the panel, the question of “when is late too late” in this context remains to be resolved another day. What we can take away is that governmental employers in New Jersey have a great deal of latitude to change their mind prior to a final adjudication and to reduce a penalty back down to minor (five day suspension or less) to avoid the procedural hurdles of proving and going forward with major discipline. Local government employers are encouraged to discuss this development and how it affects their disciplinary processes with qualified counsel such as Plosia Cohen LLC.

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