Michael Chase, CSC Docket No. 2016-3321

BackgroundThe appeal of Michael Chase, Police Chief, Township of Irvington, Police Department, removal effective March 11, 2016, on charges, was heard by Administrative Law Judge Kimberly A. Moss (ALJ), who rendered her initial decision on March 9, 2020. Exceptions were filed on behalf of the appellant and the appointing authority and a reply to exceptions was filed on behalf of the appointing authority.

AnalysisHaving considered the record and the ALJ’s initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on April 29, 2020, accepted and adopted the Findings of Fact and Conclusion as contained in the attached ALJ’s thorough and comprehensive initial decision as well as her recommendation to modify the removal to a six-month suspension. In this regard, the Commission has reviewed the extensive exceptions filed on behalf of both parties and the reply filed on behalf of the appointing authority and finds them unpersuasive in establishing that the ALJ’s decision was arbitrary, capricious or not based on the credible evidence in the record. Moreover, the Commission agrees with the ALJ regarding the charges and finds that the imposition of a six-month suspension is the appropriate penalty under the facts presented.

Since the removal has been modified, the appellant would normally be entitled to be reinstated to his position with back pay, benefits and seniority following his suspension until the date of his reinstatement. However, the record indicates that the appellant’s turned 65 in July 2016, which is the mandatory retirement age for police.! Thus, he cannot be currently reinstated. Additionally, the record shows that his removal from employment was effective March 11, 2016. Accordingly, as the imposition of the six-month suspension would span past his mandatory retirement age, the appellant is not entitled to back pay, benefits or seniority in this matter.

RuleRegarding counsel fees, N.J.A.C. 4A:2-2.12(a) provides for the award of counsel fees only where an employee has prevailed on all or substantially all of the primary issues in an appeal of a major disciplinary action. The primary issue in the disciplinary appeal is the merits of the charges. See Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121,128 (App. Div. 1995); James L. Smith v. Department of Personnel, Docket No. A-1489-02T2 (App. Div. March 18, 2004); In the Matter of Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In this matter, while the penalty was modified, charges were sustained and major discipline was imposed. Therefore, the appellant has not prevailed on all or substantially all of the primary issues of the appeal. Consequently, as appellant has failed to meet the standard set forth at N.J_A.C. 4A:2-2.12, counsel fees must be denied.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. Accordingly, the Commission modifies the removal to a six-month suspension. The Commission further finds that, for the reasons presented previously, the appellant is not entitled to receive back pay, benefits and seniority. Finally, counsel fees are denied pursuant to Nid. A.C. 44:2-2.12.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.