Termination of New Jersey Firefighter Upheld

The Appellate Division of New Jersey Superior Court has upheld the termination of a firefighter who was working full-time for the military while employed full-time as a municipal firefighter, and kept each agency in the dark about his employment with the other. John Tayag-Kosky was fired by the Town of Kearny for conduct unbecoming, neglect of duty, insubordination, and hiding the fact that he was employed full-time as military recruiter and an active-duty member of the Army National Guard.

Kosky challenged his termination before the New Jersey Civil Service Commission, who upheld the fire department’s decision as appropriate under the circumstances. The court referenced the Commission’s findings based on the record created by an Administrative Law Judge (ALJ):

• 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”
• 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.”
• 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 concluded that Kosky’s “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.”

The Civil Service Commission also rejected Kosky’s USERRA claim (Uniformed Services Employment and Reemployment Rights Act). Kosky appealed to the Appellate Division of Superior Court arguing acknowledging the substance of the allegations, but claiming that termination is too harsh a penalty and violates principles of progressive discipline.

Quoting from the court:

• 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.
• 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, 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.”
• “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.”
• [W]e 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.
• Nor do we find Kosky’s termination shocking to our sense of fairness such that reversal is warranted.
• 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.

Here is a copy of the complaint: