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

NOT FOR PUBLICATION WITHOUT THE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