SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4086-17T3

IN THE MATTER OF JOSEPH 

MAGLIONE, EWING TOWNSHIP

POLICE DEPARTMENT.

_______________________________

Argued October 3, 2019 – Decided October 24, 2019

Before Judges Fuentes, Mayer and Enright.

On appeal from the New Jersey Civil Service 

Commission, Docket No. 2018-1233.

Donald C. Barbati argued the cause for appellant

Joseph Maglione (Crivelli & Barbati, LLC, attorneys; 

Donald C. Barbati and Frank Michael Crivelli, on the 

briefs).

Susan Lynn Swatski argued the cause for respondent 

Ewing Township Police Department (Hill Wallack, 

LLP, attorneys; Susan Lynn Swatski, of counsel and on 

the brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent Civil Service Commission (Dominic Larue

Giova, Deputy Attorney General, on the statement in 

lieu of brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Joseph Maglione appeals from a final decision of the Civil Service 

Commission (Commission), upholding his removal from employment with the 

Ewing Township Police Department (Department) for numerous violations of 

Departmental Rules and Regulations regarding a high-risk missing child

investigation. We affirm. 

After a lengthy hearing, an administrative law judge (ALJ) accepted the 

testimony from the Department's witnesses as credible. On the other hand, the 

ALJ concluded Maglione's testimony, denying any violations of the 

Departmental Rules and Regulations, was not credible. The ALJ found 

Maglione's 

actions or lack thereof, if not intentional, were grossly 

negligent in the handling of a high-risk missing child. 

This was compounded by his lack of candor in his 

[Internal Affairs Department] interview and calls into 

question his fitness to be a supervising officer. Such 

conduct places not only the public[,] but the 

Department at risk.

The ALJ affirmed the Department's termination of Maglione's employment. 

The hearing testimony provided by the witnesses is recited at length in the 

ALJ's initial decision. We provide a summary of the ALJ's factual findings. 

On May 20, 2017, the Department received a telephone call, reporting a 

missing eleven-year old child. Based on the child's age, he was deemed a "high-
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risk" missing person. Investigations of high-risk missing children require 

officers to follow protocols set forth in the Department's Guidelines and the 

Attorney General's Directives. Officers are required to search inside and outside 

the residence of the missing child; treat the place where the child was last seen 

as a crime scene; establish a command post; notify supervisors in the chain of 

command; contact the on-call detective; notify the county's Child Abduction 

Response Team (CART); and contact the K-9 unit in the Department. 

Lieutenant Maglione, the on-duty supervisor on the date of the incident, 

and Officer Paul Dorio responded to the missing child call. Both officers spoke 

to the missing child's parents. However, neither officer searched the interior or 

exterior of the child's home and did not establish a crime scene or command post 

at the residence. Nor did the officers issue a "Be on the Look Out" (BOLO) 

order to notify adjacent municipalities of the missing child. 

Maglione told Dorio to call the Mercer County Prosecutor's Office and the 

officer who worked in the child's school. Maglione did not instruct Dorio to 

contact CART to ensure their involvement in the missing child investigation. 

Nor did Maglione call his superiors regarding the child's disappearance. 

The next day, the Department first learned the child was missing. The oncall detective contacted CART. The staff at CART said they were not contacted 
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the prior evening by either Maglione or Dorio. The on-call detective called the 

child's school seeking to contact the missing child's friends. Within hours

thereafter, the juvenile was found unharmed. 

The Department initiated an internal affairs investigation into the events 

related to the child's disappearance. The investigation concluded Maglione 

edited Dorio's incident report several times and determined significant 

information was missing from Dorio's report despite Maglione's approval of the 

document. The internal affairs investigator found Maglione had been untruthful 

many times during the course of the Department's investigation. 

The ALJ upheld the Department's disciplinary charges in an April 3, 2018 

Initial Decision. On May 4, 2018, the Commission accepted and adopted the 

ALJ's thorough and comprehensive factual findings and legal conclusions.

Maglione presents the following arguments on appeal:

I. THE CIVIL SERVICE COMMISSION ERRED IN 

ACCEPTING AND ADOPTING THE INITIAL 

DECISION OF THE ALJ. AS SUCH, THE 

COMMISSION'S DECISION MUST BE REVERSED.

II. THE ALJ'S CREDIBILITY DETERMINATIONS 

WERE ERRONEOUS AND INHERENTLY 

INCONSISTENT. GIVEN THE DETERMINATIONS 

SERVED AS THE UNDERPINNING FOR THE 

INITIAL DECISION, THE INITIAL DECISION 

SHOULD HAVE BEEN REJECTED BY THE 

COMMISSION.
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III. THE ALJ ERRED IN DETERMINING THE 

DEPARTMENT MET ITS BURDEN OF PROOF TO 

SUSTAIN THE DISCIPLINARY CHARGES 

LODGED AGAINST MAGLIONE. THIS FURTHER 

SUPPORTED REVERSAL OF THE INITIAL 

DECISION.

1. The ALJ failed to recognize the Department failed 

to prove Maglione should be responsible for Officer 

Dorio's deficiencies in contacting CART and/or the OnCall Detective.

2. The ALJ failed to recognize the Department failed 

to prove Maglione should be responsible for Officer 

Dorio's deficiencies in the search of the missing child's 

residence.

3. The Department did not establish Maglione had an 

imperative obligation to contact the On-Call Detective 

and establish a command post and/or crime scene. 

Moreover, the Department failed to establish Maglione 

failed to send out the required BOLO message. As such, 

the ALJ's determinations to sustain these charges 

should have been reversed.

4. The ALJ erroneously determined the Department 

established Maglione was untruthful.

IV. THE ALJ AND COMMISSION ERRED IN 

AFFIRMING MAGLIONE'S REMOVAL FROM 

EMPLOYMENT. SUCH A PENALTY DEFIES THE 

PRINCIPLES OF PROGRESSIVE DISCIPLINE AND 

IS "SHOCKING TO ONE'S SENSE OF FAIRNESS."

"An appellate court affords a 'strong presumption of reasonableness' to an 

administrative agency's exercise of its statutorily delegated responsibilities." 
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Lavezzi v. State, 219 N.J. 163, 171-72 (2014) (quoting City of Newark v. Nat. 

Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539 (1980)). We will not 

overturn an agency's decision "in the absence of a showing that it was arbitrary, 

capricious or unreasonable, or that it lacked fair support in the evidence . . . ." 

Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). 

We give "due regard to the opportunity of the one who heard the witnesses 

to judge their credibility." Logan v. Bd. of Review, 299 N.J. Super. 346, 348 

(App. Div. 1997) (citing Jackson v. Concord Co., 54 N.J. 113, 117 (1969)). We 

will not disturb an ALJ's credibility findings unless they were "arbitrary or not 

based on sufficient credible evidence in the record as a whole." Cavalieri v. Bd. 

of Trs. of PERS, 368 N.J. Super. 527, 537 (App. Div. 2004). After reviewing 

the record, we find no basis to second-guess the ALJ's evaluation of witness 

credibility. 

We are further satisfied that the ALJ's findings are amply supported by 

the credible testimony and documentary evidence adduced during the hearing. 

On the date of the juvenile's disappearance, Maglione's actions, or lack thereof, 

violated multiple protocols issued by the Department, warranting imposition of 

a severe penalty. 
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We next consider Maglione's argument that removal from office was an 

inappropriate penalty and progressive discipline should have been imposed. Our 

standard of review is whether the penalty "shocks one's sense of fairness." In re 

Hendrickson, 235 N.J. 145, 150 (2018). "[N]either 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) (second alteration in original) (quoting In re Carter, 191 N.J. 

474, 484 (2007)). "[P]rogressive discipline is not a necessary consideration 

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." In 

re Herrmann, 192 N.J. 19, 33 (2007). Even a single incident can be egregious 

enough to warrant removal without reliance on progressive-discipline policies. 

Ibid.

Several of these considerations are applicable here. In deciding to 

terminate Maglione, the ALJ and the Commission emphasized his numerous 

violations of the Department's Rules and Regulations, lack of veracity 

throughout the internal affairs investigation and during the administrative 

hearing, and refusal to take responsibility for his actions. The Commission 
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concluded that the substantial evidence in the record regarding Maglione's 

failure to follow rules, procedures, and guidelines in searching for the high-risk 

missing child warranted his termination. There is no legal or factual basis to 

disturb this decision. Moreover, Maglione's absence of judgment demonstrated 

gross negligence and lack of fitness to continue working in the Department. The 

public's interest would not be served by implementing progressive discipline 

under these circumstances. 

Having reviewed the ALJ's detailed findings, we discern no legal error in 

the ALJ's decision to terminate Maglione's employment. Termination was not 

disproportionate or unreasonable under the circumstances, and does not shock 

our sense of fairness. 

Affirmed.