NJ Courts’ Application of Progressive Discipline: Neither Progressive, Nor Disciplined

The concept of progressive discipline is easy to understand:  when facing discipline for misconduct, a police officer’s past performance record should be considered in determining a fair and appropriate punishment.  Such discipline is “progressive” because the penalties for misconduct should “progressively” increase each time the officer is convicted of misconduct.  On the other hand, progressive discipline in its purest form would preclude severe punishment for a first offense, if that officer’s prior record was spotless. 

 In practice, the notion of progressive discipline is usually discussed when a police officer is fired or severely punished for a single instance of misconduct despite an exemplary prior record of performance.  Courts are more likely to discuss progressive discipline principles when justifying a reduction of punishmnet due to a stellar performance record.  Although courts are not required to adhere strictly to principles of progressive discipline when examining disciplinary actions, it is critical for police officers with good prior disciplinary records to vigorously and persuasively argue for leniency under progressive discipline principles.  It is equally important for officers to fight any disciplinary charge, even for “minor” infractions, because a spotless record will be extremely valuable if something serious happens in the future. 

In a recent unpublished case, Ackermann v. Borough of Glen Rock and Glen Rock Police Department, a sergeant-detective was charged by his Chief with sexually harassing a female colleague.  The Chief recommended a 3-day suspension.  The officer challenged this suspension, and a hearing was held.  The hearing officer concluded that the officer had violated numerous rules and recommended a 10-day suspension without pay, as well as attendance at sensitivity training.  The hearing officer’s conclusions were accepted by the Mayor and Council, except for the degree of discipline.  Substantially increasing the officer’s punishment, the Council suspended the officer for 60 days, demoted him from detective-sergeant to police officer, and required him to attend sensitivity training. 

In response, the officer filed a complaint in lieu of prerogative writs in Superior Court, resulting in a trial de novo.  After hearing the evidence, the trial court found that the demotion was excessive, noting that the officer had not been the subject of any prior disciplinary procedures.  Thus, the trial court found, “to order [the officer] demoted would not be in accordance with the principles of progressive discipline.” 

The appellate court upheld the trial court’s rejection of the demotion on the basis of progressive discipline, stating, “[i]t is entirely appropriate to discipline an employee with an otherwise blameless record in a manner different than an employee whose record is studded with disciplinary charges.”  In this case, the officer benefitted from the court’s application of progressive discipline principles.

However, in a 2007 case called In Re Carter, the New Jersey Supreme Court upheld the removal of an officer for sleeping on duty, even though the Appellate Division had previously held that removal was too severe under progressive discipline principles.  The New Jersey Supreme Court noted that “we have not regarded the theory of progressive discipline as a fixed and immutable rule to be followed without question.”  According to the Court, “some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished record.” 

 Sleeping on duty, according to the Court, was “so serious” that termination was appropriate.  Unfortunately, the Court left for another day the answer to the most critical question: what other kinds of infractions are so serious to cause an otherwise perfectly behaved police officer to lose his job?  The answer to that question presumably lies somewhere in the thousands of pages of case law on the subject; but, I can tell you, there are no definite answers.

The Supreme Court’s analysis in In Re Carter, as in many other progressive discipline cases, is unsatisfying because it says, essentially, that while certain infractions can result in extreme punishment, only the Court knows those infractions when it sees them.  Because progressive discipline is not a “fixed and immutable rule,” and the jurisprudence surrounding the concept is typically limited to the facts of a particular case, Court precedent offers precious little guidance to police officers in the field who are left to wonder what conduct could get them fired, even if they have a perfect record. 

There are lessons to be learned, however.  First, do not accept any adverse employment actions, like suspensions or reprimands, lying down.  You should fight all such blemishes on your record because you never know if you will be accused of something more serious later.  The cleaner your file, the better your argument for leniency under progressive discipline principles will be.  Second, if you face disciplinary charges, and your prior record is relatively clean, make sure your attorney has carefully analyzed the applicable case law on progressive discipline so that the most potent arguments can be made on your behalf. 

Contact me by telephone or email if you have any questions about progressive discipline or any other issue relating to police-defense.  

Peter B. Paris, Esq. 609-452-8411, ext. 117 or pparis@maselliwarren.com.

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