SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3623-19

IN THE MATTER OF 

JOSEPH DOWNAR,

THE CITY OF NEWARK 

FIRE DEPARTMENT.

______________________

Argued October 28, 2021 – Decided November 16, 2021

Before Judges Whipple, Geiger and Susswein.

On appeal from the New Jersey Civil Service 

Commission, Docket No. 2018-2876.

Frank C. Cioffi argued the cause for appellant Joseph 

Downar (Sciarra & Catrambone, LLC, attorneys; 

Frank C. Cioffi, of counsel and on the briefs).

John J. Zidziunas argued the cause for respondent City 

of Newark Fire Department, (John J. Zidziunas & 

Associates, LLC, attorneys; John J. Zidziunas, of 

counsel and on the brief; Jeffrey V. Fucci, on the 

brief).

Andrew J. Bruck, Acting Attorney General, attorney

for respondent New Jersey Civil Service Commission

(Eric A. Reid, 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NOT FOR PUBLICATION WITHOUT THE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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Petitioner Joseph Downar appeals from the April 17, 2020 final 

administrative action of the Civil Service Commission (Commission) that 

accepted and adopted the findings of fact and conclusions articulated in an 

Administrative Law Judge's initial decision, and affirmed Downar's removal 

on charges, effective December 8, 2018. For the following reasons, we affirm. 

We derive the facts, which are largely undisputed, from the record. 

Downar, was hired as a firefighter by the City of Newark Fire Department 

(Department) in June 2013. His probationary period was uneventful. During 

his first three years as a firefighter, Downar incurred no disciplinary 

infractions and received positive performance reviews. 

On July 30, 2016, Downar and Michael Avila were patrons of the Darby 

Road Restaurant in Scotch Plains. They did not know each other. Downar 

was intoxicated. At one point a conversation regarding sports became heated. 

When Downar became loud, Avila decided to end the conversation and told 

Downar "let's agree to disagree and I'm going to sit here and finish my drink." 

Downar then punched Avila on the side of his face causing his head to hit the 

wall. Avila suffered a zygomatic arch fracture (fractured cheekbone), a 

laceration on his forehead, and a concussion. Avila was taken to a hospital. 
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There is no evidence that Downar announced that he was a Newark firefighter 

during the incident. 

On January 4, 2017, police arrested Downar for third-degree aggravated 

assault, N.J.S.A. 2C:12-1(b)(7). Downar was indicted for that charge on June 

13, 2017. He pled guilty to third-degree aggravated assault on October 2, 2017 

and was sentenced on December 8, 2017 to a three-year probationary term, 

conditioned upon serving a 364-day jail term, undergoing a substance abuse 

evaluation, and following all treatment recommendations. 

Downar did not report the incident, his arrest, the assault charge, the 

indictment, his conviction, his sentence, or other aspects of the criminal 

prosecution to the Department, which had no independent knowledge of the 

incident or its consequences until December 12, 2017, the day he began 

serving his jail term. 

After Downar failed to report to work that day, a union representative 

advised the Public Safety Director's Office that Downar was incarcerated and 

would not be reporting for work the next day. The representative related that 

he was just informed of the matter and would send the related paperwork by 

fax. After reviewing the criminal complaint, Public Safety Director Anthony 

F. Ambrose directed Assistant Public Safety Director Raul Malave to suspend 
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Downar. The Department also conducted an internal affairs (IA) investigation 

that confirmed what had happened. A preliminary notice of disciplinary action 

(PNDA) was issued on December 12, 2017. The PNDA listed the following 

charges: inability to perform duties, N.J.A.C. 4A:2-2.3(a)(3); conviction of a 

crime, N.J.A.C. 4A:2-2.3(a)(5); conduct unbecoming a public employee, 

N.J.A.C. 4A:2-2.3(a)(6); and other sufficient cause (violation of Department 

rules and regulations), N.J.A.C. 4A:2-2.3(a)(12). Downar was suspended 

without pay effective December 8, 2017. The Department sought his removal. 

A Department letter appended to the PNDA recited portions of Articles 

6, 11, 23, 58, and 59 of the Department's Rules and Regulations. Most 

pertinent here, Article 6, Paragraph 1 states that members shall not violate 

their oath of office. Article 23, Paragraph 1, states: "Members shall be held 

liable for any disorderly conduct or violation of any law, whether on or off 

duty." Paragraph 2 provides: "Members shall not engage in any altercations, 

nor be guilty of improper, indecent or immoral conduct. Members at all times 

shall be civil and orderly in their conduct and refrain from doing anything 

which may bring discredit to themselves or the Department." Article 58, 

Paragraph 1 states: "Members shall not commit any act nor shall they be 

guilty of any omission that constitutes neglect of duty." In addition, Article 1, 
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Paragraph 4 requires members "to promptly and implicitly conform to all 

Rules and Regulations, Orders, Executive Orders, General Orders, Notices and 

Directives governing the Fire Department." 

A disciplinary hearing was held on March 15, 2018. Downar pled not 

guilty to the charges. A March 16, 2018 Final Notice of Disciplinary Action 

(FNDA) sustained each of the charges and removed Downar effective 

December 8, 2018. The FNDA recited Article 58, Paragraph 1 and Article 59, 

Paragraphs 1 and 2 and noted that Downar was found guilty of third-degree 

aggravated assault and ordered to serve a 364-day jail term, but failed to notify 

the Department of his arrest, indictment, and incarceration. 

Downar was paroled on March 14, 2018, after serving 120 days in jail. 

His parole and probation were uneventful, and his probation was ended early. 

He is now employed as a union painter. Downar acknowledges that he 

attended Alcoholics Anonymous meetings on a voluntary basis but continues 

to drink socially. 

Downar and the Prosecutor's Office filed a joint motion under Rule 3:21-

10(b)(3) to change his conviction to fourth-degree aggravated assault, N.J.S.A. 

2C:12-1(b)(3). On April 16, 2018, the unopposed motion was granted, and an 

amended judgment of conviction was entered. 
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Downar appealed his removal. The case was transferred to the Office of 

Administrative Law as a contested case and assigned to an Administrative Law 

Judge for hearing. The hearing was conducted in October 2019, with Downar 

and three witnesses testifying. 

Assistant Public Safety Director Raul Malave testified for the fire 

department. He recounted when and how the Department first learned of the 

incident and Downar's subsequent arrest, prosecution, conviction, sentence, 

and inability to report to work due to incarceration. Malave explained the 

Department's policy that was adopted on January 4, 2017, which required 

firefighters to report any interaction with law enforcement or the courts, 

including all court dates. He also testified that even though the charge was 

ultimately a fourth-degree offense, it did not change his mind about the 

discipline Downar should receive as it was still a violent crime. Malave also 

testified that he believed Downar was terminated because his assault charge 

showed violent tendencies that were alarming as someone who had to deal 

with the public. He explained that firefighters are responsible for their 

conduct both on and off duty. 

Michael Petrone, a fellow Newark firefighter who has been on the force 

for twenty-eight years, testified as a character witness for Downar. He 
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testified there are other firefighters on the force that have had criminal charges 

against them but continued working, including charges for theft and domestic 

abuse. 

James Pierson, a retired police captain, also testified on behalf of 

Downar. He stated that although there is an obligation to report interactions 

with law enforcement, interactions are often not reported as required. He 

believed firefighters on occasion wait to see if criminal charges resolve in their 

favor. He recounted that he had been charged in the past with aggravated 

assault that was downgraded to simple assault and waited to report it until he 

knew what the outcome of the charges would be. 

Downar testified on his own behalf, noting his lack of prior misconduct, 

cooperation with the police on the date of the incident, and that he was 

unaware he had to report the incident to his superiors. On the advice of 

counsel, he turned himself in to police because the charge was being upgraded 

to aggravated assault. He used personal and vacation time for court 

appearances. He testified that he was sentenced to three years of probation,

but supervision was terminated after twenty months. 

On February 28, 2020, the ALJ issued a twelve-page initial decision that 

affirmed Downar's removal and dismissed his appeal. The ALJ found that the 
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Department proved by a preponderance of the evidence that Downar was guilty 

of the charges set forth in the FNDA: conduct unbecoming a public employee, 

inability to perform duties, conviction of a crime, and violation of 

departmental rules and regulations. She specifically found that Downar: (a) 

"engaged in conduct unbecoming a public employee by engaging in a fight that 

result[ed] in serious injury to the victim and a conviction of a third-degree 

crime"; (b) was "guilty of neglect of his duties as a fireman in violation of 

N.J.S.A. 4A:2-2.3(a)(7)," because Downar's incarceration "prevented him from 

performing his duties" for 120 days; (c) was convicted of aggravated assault; 

and (d) violated departmental rules and regulations by failing to report his 

criminal charges to his superiors. 

The ALJ did not find Downar's testimony that he was unaware that he 

was obligated to report his criminal charges to the Department to be credible. 

Nor was she persuaded by the testimony of Downar's witnesses. 

As to whether the penalty of removal was appropriate, the ALJ found 

that Downar's conduct warranted termination. She explained that firefighters 

were "a special kind of public employee" that are "subject to a higher standard 

of conduct and responsibility than is required of most other public employees." 

She noted that "[t]he Commission has long recognized that fire fighters, all of 
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which are part of a paramilitary organization, hold very unique positions, and 

any disregard for the law is unacceptable." 

Downar filed exceptions to the initial decision. On April 17, 2020, the 

Commission issued a final administrative action that accepted and adopted the 

ALJ's findings of fact and conclusions. The Commission determined that 

Downar's removal, effective December 8, 2018, was justified. This appeal 

followed. 

Downar raises the following points for our consideration:

POINT I

THE DECISION OF THE CIVIL SERVICE 

COMMISSION TO UPHOLD THE 

ADMINISTRATIVE LAW JUDGE[']S DECISION 

TO REMOVE PETITIONER JOSEPH DOWNAR 

FROM HIS POSITION AS FIREFIGHTER WITH 

THE CITY OF NEWARK WAS ARBITRARY AND 

CAPRICIOUS AND NOT SUPPORTED BY THE 

SUBSTANTIAL EVIDENCE OF THE RECORD.

A. Standard of Review.

B. City's Policy.

POINT II

IN THE ALTERNATIVE, THE COURT SHOULD 

REINSTATE PETITIONER JOSEPH DOWNAR TO 

HIS POSITION WITH THE CITY OF NEWARK AS 

THE CIVIL SERVICE COMMISSION'S DECISION 

TO REMOVE PETITIONER JOSEPH DOWNAR 
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FROM HIS POSITION WITH THE CITY IS 

DISPROPORTIONATE TO THE OFFENSE AS THE 

OFFENSE OCCURRED IN AN OFF-DUTY 

SETTING AND DID NOT [A]FFECT HIS ABILITY 

TO PERFORM HIS DUTIES AND 

RESPONSIBILITIES AS A FIREFIGHTER WITH 

THE CITY OF NEWARK.

Our scope of review of an administrative agency's final determination is 

limited. In re Herrmann, 192 N.J. 19, 27 (2007). "An administrative agency's 

final quasi-judicial decision will be sustained unless there is a clear showing 

that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in 

the record." Id. at 27-28. The burden of proving a decision was arbitrary, 

capricious, or unreasonable is on the party challenging the agency action. 

Lavezzi v. State, 219 N.J. 163, 171 (2014) (citing In re J.S., 431 N.J. Super. 

321, 329 (App. Div. 2013)). 

When reviewing an agency decision, we examine: 

(1) whether the agency's action violates express or 

implied legislative policies; 

(2) whether the record contains substantial evidence to 

support the findings on which the agency based its 

action; and 

(3) whether in applying the legislative policies to the 

facts, the agency clearly erred in reaching a 

conclusion that could not reasonably have been made 

on a showing of the relevant factors. 
11 A-3623-19

Allstars Auto Grp., Inc. v. N.J. Motor Vehicle 

Comm'n, 234 N.J. 150, 157 (2018) (quoting In re 

Stallworth, 208 N.J. 182, 194 (2011)). 

Where an agency's decision satisfies these criteria, we accord substantial 

deference to the agency's fact-finding and legal conclusions, recognizing "the 

agency's 'expertise and superior knowledge of a particular field.'" Circus 

Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) 

(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). 

Firefighters perform a unique, essential municipal function, protecting 

people and property from the danger and destruction of fires and other 

emergencies. "Firefighters are not only entrusted with the duty to fight fires; 

they must also be able to work with the general public and other municipal 

employees, especially police officers . . . ." Karins v. City of Atl. City, 152 

N.J. 532, 552 (1998). Firefighters "must also display a certain level of 

discipline and an ability to work well within the community." Id. at 557. 

"Thus, a municipality has a significant interest in the off-duty conduct of its 

firefighters . . . ." Id. at 552. As explained by the Court in Karins:

Conduct that weakens the public's trust tends to 

destroy the public's confidence in a fire department. 

Firefighters can perform their duties well only if they 

merit the trust and confidence of the community they 

serve. Public trust and confidence are essential to the 

department's effective and satisfactory operation. The 
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Chief of a fire department has the responsibility of 

sedulously maintaining the departmental morale and 

discipline. The promotion of safety of persons and 

property is at the core of the mission of a fire 

department. That cannot be achieved without intraand inter-departmental morale. 

[Id. at 562.]

With these principles in mind, we analyze whether the Board's final 

administrative determination was supported by substantial evidence in the 

record, or was arbitrary, capricious, or unreasonable. 

Downar was charged with conduct unbecoming a public employee, 

contrary to N.J.A.C. 4A:2-2.3(a)(6). "The determination of what constitutes 

conduct unbecoming a public employee is primarily a question of law." 

Karins, 152 N.J. at 553 (citing Jones v. City of Pittsburgh, 476 A.2d 895, 898 

(Pa. 1984)). The phrase "conduct unbecoming a public employee" is an elastic 

one; it does not require the "'violation of any particular rule or regulation, but 

may be based merely upon the violation of the implicit standard of good 

behavior which devolves upon one who stands in the public eye as an upholder 

of that which is morally and legally correct.'" Karins, 152 N.J. at 555 (quoting 

Hartmann v. Police Dep't of Vill. of Ridgewood, 258 N.J. Super. 32, 40 (App. 

Div. 1992)). Downar was convicted of third-degree aggravated assault, 

N.J.S.A. 2C:12-1(b)(7), by causing "significant bodily injury" to the victim. 
13 A-3623-19

By any measure, an aggravated assault causing significant bodily injury—a 

fractured facial bone, concussion, and facial laceration—is conduct 

unbecoming a public employee. See Hartmann, 258 N.J. Super. at 39-40 

(finding that inebriated off-duty police officers who engaged in a fistfight and 

wrestling engaged in conduct unbecoming an officer). Moreover, Downar 

"exhibited this behavior in public . . . and without regard to who may have 

witnessed the incident." Karins, 152 N.J. at 556. 

Downar was properly charged with inability to perform duties, N.J.A.C. 

4A:2-2.3(a)(3), due to his incarceration. He was sentenced to a 365-day jail 

term as a condition of probation and was paroled after serving 120 days. 

Downar was clearly unable perform his duties as a firefighter during the four 

months he was incarcerated. Downar's absence from duty was not approved by 

his superior. He was not granted a leave of absence to serve his jail term. His 

inability to perform duties during his incarceration warranted removal. 

Downar was further charged with conviction of a crime, N.J.A.C. 4A:2-

2.3(a)(5). Downar pled guilty to aggravated assault, a serious, violent crime. 

This provided an additional basis for disciplinary action. 

Downar was additionally charged with "other sufficient cause," N.J.A.C. 

4A:2-2.3(a)(12), for violating Department Rules and Regulations. His failure 
14 A-3623-19

to report the incident and the resulting arrest, indictment, conviction, and 

sentence violated the policy adopted by the Department on January 4, 2017, 

and in turn, violated Article 1, Paragraph 4 and Article 59, Paragraph 1. 

Downar was charged with failure to report his arrest, indictment, 

conviction, and sentence to management. The Department did not have a 

written policy, rule, or regulation requiring notification in place when the 

assault occurred. However, on January 4, 2017, the very day that Downar was 

arrested, the Department promulgated a written policy that became effective 

immediately, which required firefighters to report "contact with any police 

agency as a victim, witness, or suspect (criminal or traffic complaints) . . . via 

an administrative submission . . . to their immediate supervisor upon their first 

day reporting back to duty." Downar does not dispute that the policy was the 

subject of roll call training and was conspicuously posted, and yet claims he 

was unaware he had to report the incident to his superiors. The ALJ found that 

testimony incredible. 

The assault occurred on July 30, 2016. Downar was indicted on June 13, 

2017, pled guilty to third-degree aggravated assault on October 2, 2017, and 

was sentenced on December 8, 2017. Thus, Downar kept the incident and its 

aftermath a secret for months after the policy requiring disclosure of criminal 
15 A-3623-19

incidents was adopted. He first reported his criminal charge to management on 

the day he began serving his jail term, by having a union representative advise 

that he would not be reporting to work the following day because he was 

serving a jail term. 

Downar claims that in practice, firefighters did not report incidents 

involving the police or pending charges to management. His witnesses 

testified to that practice. The Administrative Law Judge (ALJ), who observed 

and heard the testimony, found those witnesses unpersuasive. We accord 

deference to the credibility determinations of the factfinder and decline to 

substitute our judgment for that of the ALJ. In any event, the alleged prior 

practice of not reporting contact with police or pending criminal charges is 

irrelevant given the policy adopted by the Department on January 4, 2017, that 

requires firefighters to notify their immediate superior in writing of criminal 

complaints or contact with police as a suspect. The questionable practice that 

Downar continues to rely upon, in other words, was soundly rejected by the 

remedial policy. 

Downar had no prior disciplinary history and received good performance 

reviews. He argues that removal was disproportionate to the offense, his first 
16 A-3623-19

disciplinary infraction, and that the failure to apply progressive discipline was 

reversible error. We disagree. 

Our Supreme Court first recognized the concept of progressive discipline 

in West New York v. Bock, 38 N.J. 500, 522 (1962). Under progressive 

discipline, "past misconduct can be a factor in the determination of the 

appropriate penalty for present misconduct." Herrmann, 192 N.J. at 29 (citing 

Bock, 38 N.J. at 522). An employee's recent promotions and commendations 

are also relevant in a disciplinary hearing. Bock, 38 N.J. at 523-24. Thus, 

progressive discipline can be used to mitigate the penalty imposed for an 

infraction by "an employee who has a substantial record of employment that is 

largely or totally unblemished by significant disciplinary infractions." 

Herrmann, 192 N.J. at 33. However, progressive discipline may be bypassed 

where the conduct is sufficiently egregious. Stallworth, 208 N.J. at 190-91. 

"In particular, 'progressive discipline is not a necessary consideration when 

reviewing an agency head's choice of penalty when the misconduct is severe, 

when it is unbecoming to the employee's position[,] or renders the employee 

unsuitable for continuation in the position.'" In re Restrepo, 449 N.J. Super. 

409, 425 (App. Div. 2017) (quoting Herrmann, 192 N.J. at 33). "Instead, . . . 

some disciplinary infractions are so serious that removal is appropriate 
17 A-3623-19

notwithstanding a largely unblemished prior record." In re Carter, 191 N.J. 

474, 484 (2007). 

"Courts 'accord substantial deference to an agency head's choice of 

remedy or sanction.'" Id. at 424 (quoting Herrmann, 192 N.J. at 34-35). "A 

reviewing court should alter a sanction imposed by an administrative agency 

only 'when necessary to bring the agency's action into conformity with its 

delegated authority. The Court has no power to act independently as an 

administrative tribunal or to substitute its judgment for that of the agency.'" 

Herrmann, 192 N.J. at 28 (quoting In re Polk, 90 N.J. 550, 578 (1982)); accord

Carter, 191 N.J. at 486 (cautioning that "courts should take care not to 

substitute their own views of whether a particular penalty is correct for those 

of the body charged with making that decision"). Ultimately, the issue is 

whether the sanction imposed is "so disproportionate to the offense, in the 

light of all the circumstances, as to be shocking to one's sense of fairness." 

Restrepo, 449 N.J. Super. at 426 (quoting Carter, 191 N.J. at 484). 

Even though committed while off-duty, the aggravated assault, coupled 

with the failure to report the incident, subsequent criminal prosecution, 

conviction, and sentence, and his resulting inability to perform duties during 
18 A-3623-19

his jail term, constituted egregious misconduct. 1 Here, the Commission's 

decision was supported by substantial credible evidence and was not arbitrary, 

capricious, or unreasonable despite the absence of prior disciplinary 

infractions. Removal does not shock our sense of fairness. Accordingly, we 

discern no basis to overturn the Commission's decision. 

Affirmed. 

1

 Notably, forfeiture of public employment is required when an employee is 

convicted of a crime of the third-degree or above. N.J.S.A. 2C:51-2(a)(1). 

The successful joint application to reduce the conviction to fourth-degree 

aggravated assault circumvented the statutory forfeiture of employment but did 

not reduce Downar's sentence. Notwithstanding the downgrade, Aviles 

suffered considerable traumatic injuries that required medical treatment.