In the Matter of Rivera, Jersey City Bd. of Educ., the New Jersey Civil Service Commission terminated a security guard who administration determined was intoxicated while on duty.

Although Jersey City is one of nine boards of education in the state governed by the rules of the Civil Service Commission, because of the egregiousness of the offense and the specific facts involved, the board of education was not required to implement progressive discipline which would have allowed the employee to improve his performance without termination.

According to the reported decision, Melvyn Rivera had been employed as a security guard with the Jersey City Board of Education for approximately five years. Rivera, with a partner, was assigned to a high school post at the main entrance where students entered the building. This particular high school was a “credit-recovery” high school for “at-risk” students who had fallen off their regular programs and were trying to get back on track to graduate with their peers.

On the morning of March 15, 2018, Rivera reported to his post before his 8 a.m. start time. His partner reported that when Rivera learned that another security officer who was also scheduled to work that morning had not yet arrived, Rivera became visibly upset, was loud, and began cursing.

Shortly thereafter, Rivera’s partner reported to the head of security that Rivera smelled of alcohol and appeared to be intoxicated. He was removed to a local hospital where breathalyzer testing yielded results of 0.128 and 0.123. Subsequently, Rivera was suspended and ultimately terminated by the board.

At the hearing before the Civil Service Commission, Rivera denied consuming alcohol on the day of the incident, but admitted that if had he been offered assistance, he would have accepted it. He also testified that he needed help at the time and that he had an issue with alcohol. However, later during the same hearing, he testified that he did not have an issue with alcohol and that he would have only accepted alcohol treatment to keep his job.

In response to Rivera’s argument that as a first-time offender, progressive discipline should apply and he should be offered the opportunity to enter into a treatment program, the commission determined that the lack of prior offenses did not serve to mitigate the seriousness of his actions on the day in question, noting that Rivera’s actions were inappropriate, irresponsible, and dangerous.

The commission further noted that Rivera’s failure to exercise sound judgement, coupled with his refusal or inability to recognize his error, called into question his ability to function competently and with any degree of confidence as a security guard. Finally, the commission noted that there was nothing in the record to suggest the board was under an obligation to offer the security guard the opportunity to enter into a substance abuse program prior to termination. Accordingly, the commission upheld the board’s termination.

Finally, the above matter notwithstanding, it should be noted that the State Board of Education, in I.M.O. Tenure Hearing of Howard, 93 N.J.A.R. 2d (EDU) 788, reversed the New Jersey Department of Education Commissioner’s termination of a teacher who was an alcoholic because alcoholism is a handicap under the New Jersey Law Against Discrimination, which requires an accommodation for a person suffering from that particular disability.

For more information, board members may wish to contact the board attorney, or the NJSBA Legal and Labor Relations Department at (609) 278-5254.

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