The Appellate Division of New Jersey Superior Courtroom has upheld the termination of a firefighter who was working full-time for the army whereas employed full-time as a municipal firefighter, and saved every company at nighttime about his employment with the opposite. John Tayag-Kosky was fired by the City of Kearny for conduct unbecoming, neglect of obligation, insubordination, and hiding the truth that he was employed full-time as army recruiter and an active-duty member of the Military Nationwide Guard.
Kosky challenged his termination earlier than the New Jersey Civil Service Fee, who upheld the hearth division’s determination as applicable beneath the circumstances. The court docket referenced the Fee’s findings primarily based on the file created by an Administrative Legislation Choose (ALJ):
- After contemplating the proof, the ALJ concluded Kosky’s testimony was self-serving and unimaginable and that there was ample proof within the file to maintain every of the fees.
- Particularly, the ALJ discovered Kosky had “made a acutely aware determination to . . . slip between the cracks-and hold each army and paramilitary instructions at nighttime” and that his testimony on the contrary was not credible.
- The ALJ didn’t discover credible Kosky’s illustration that he had not thought it was vital to tell the Division of his lively -duty standing in 2014, as a substitute discovering he had engaged in a “deliberate shell recreation” and that it was Kosky’s intention “to maintain each army and paramilitary chains of command at nighttime about his full-time employment with the opposite” as a result of “[h]e already knew what every would say, and he wished to remain on each salaries and advantages.”
- The ALJ additionally discovered that Kosky “knowingly and deliberately” had produced a memorandum that was neither official nor licensed by his chain of command to keep away from “the burden of telling the total reality”
- On this level, the ALJ additional discovered that Kosky had “purposely failed” to reveal his active-duty standing as a result of “he knew from his expertise that each [the Department] and the Guard . . . had points together with his accepting twin full -time positions.”
- The ALJ discovered it past dispute that Kosky had an obligation to tell the Division of his active-duty standing when he returned from go away in 2014 and his failure to take action was a cloth omission or misrepresentation.
- The ALJ concluded that Kosky’s “career-long, persistent acts of omission or fee… plainly represent conduct unbecoming a public worker and have been detrimental to the chain of command of the para-military group of the… Division.”
The Civil Service Fee additionally rejected Kosky’s USERRA declare (Uniformed Companies Employment and Reemployment Rights Act). Kosky appealed to the Appellate Division of Superior Courtroom arguing acknowledging the substance of the allegations, however claiming that termination is simply too harsh a penalty and violates rules of progressive self-discipline.
Quoting from the court docket:
- On enchantment, Kosky argues a single level: the penalty of termination was arbitrary and violated rules of progressive self-discipline as a result of no rule of the Division prohibits holding secondary employment and at no level was he unable to fulfil his obligations to the Division.
- Though the idea of progressive self-discipline, which promotes uniformity and proportionality within the self-discipline of public staff, has lengthy been a acknowledged and accepted precept, we’ve got additionally lengthy acknowledged that the speculation of progressive self-discipline is just not “a set and immutable rule to be adopted with out query . . . recogniz[ing] that some disciplinary infractions are so severe that removing is acceptable however a largely unblemished prior file.”
- “Thus, progressive self-discipline has been bypassed when an worker engages in extreme misconduct, particularly when the worker’s place includes public security and the misconduct causes threat of hurt to individuals or property.”
- [W]e discern no foundation to reverse the great findings of the ALJ that have been adopted by the Fee.
- Kosky admitted to the underlying information the Division had used as the premise for his termination.
- Nor do we discover Kosky’s termination stunning to our sense of equity such that reversal is warranted.
- The Fee’s determination was clearly supported by the file which confirmed Kosky intentionally deceived the Division by failing to reveal he was holding two full-time positions in an effort to achieve private benefit within the type of extra pension and well being advantages.
- Having reviewed this file, we’re happy the Fee’s determination is supported by ample credible proof as a complete and the sanction of removing was justified.
Here’s a copy of the criticism: