Michael J. Flynn Monmouth County, CSC Docket No. 2016-893

BackgroundThe appeal of Michael J. Flynn, Motor Vehicle Operator Elderly and Handicapped Persons, Monmouth County, Department of Transportation, removal effective July 9, 2015, on charges, was heard by Administrative Law Judge Patricia M. Kerins, who rendered her initial decision on May 20, 2019. Exceptions were filed on behalf of the appointing authority and a reply to exceptions was filed on behalf of the appellant.

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 June 26, 2019, accepted and adopted the Findings of Fact and Conclusion as contained in the attached ALJ’s initial decision as well as her recommendation to modify the removal to a 120 working day suspension with return to duty testing. However, the Commission does not agree with the ALJ’s determination to award back pay.

DISCUSSION

Since the Commission substantially agrees with the ALJ’s Findings of Facts and Conclusions, no extended discussion is necessary. However, the Commission will briefly address the exceptions filed by the appointing authority and address the ALJ's award of back pay.

In its exceptions, the appointing authority presents several prior Commission decisions where it argues the Commission upheld the removal of non-law enforcement employees for failed drug tests. It contends that those cases are similar to the current matter, and, therefore, the appellant’s removal should be upheld. It also argues, alternatively, that if the appellant is to be reinstated, the ALJ’s order of a return to duty drug test is insufficient. In reply, the appellant argues that the ALJ’s determination was proper. Further, he presents alternate Commission cases where the Commission modified the removals of non-law enforcement employees for failed drug tests.

The Commission is not persuaded by the cases cited by the appointing authority. For non-law enforcement employees, who are not held to the stricter standard of conduct expected of law enforcement officers, a “second chance” is generally provided by appointing authorities for drug related infractions. Additionally, all the cases cited by the appointing authority have significant differences as compared to the current matter. Rather, the Commission finds this matter more in line with such matters as In the Matter of John Simpson (MSB, decided March 26, 2008) (Removal modified to a four-month suspension of a non- public safety employee); In the Matter of John Daraklis (MSB, decided June 11, 2008); In the Matter of Glenn Steiger (MSB, decided July 11, 2007) (Removal modified to four-month suspension and required testing before reinstatement where Truck Driver failed random alcchol test); and In the Matter of Richard Wilkins, dr. (MSB, decided September 21, 2005) (Removal modified to six-month suspension and required referral to Township's Employee Assistance Program and random testing after reinstatement for Police Aide who tested positive for marijuana and PCP). Most closely related is In the Matter of Brian Huntley (CSC, decided February 12, 2014). In that matter, the Commission modified the removal of a Heavy Equipment Operator who tested positive for cocaine to a six-month suspension. The Commission also rejected back pay in that matter. Finally, the Commission rejects the appointing authority's contention that the return to duty drug test is insufficient. Clearly, if the appellant passes that screening, there is no reason he should not be reinstated. Further, if ultimately reinstated, he will be required to undergo random drug testing pursuant to United States Department of Transportation regulations and is always potentially subject to non-random drug testing should the appointing authority believe he is impaired on the job.

Since the removal has been modified, the appellant would normally be entitled to back pay, benefits and seniority following his suspension until the date of his reinstatement. However, and as per Huntley, supra, the Commission does not award the appellant back pay from the date following his suspension. In this regard, as it is unknown if the appellant would have tested positive from the period after the 120 working day suspension until such time he undergoes the return to work drug test, it cannot be determined if the appellant would have been able to work during that timeframe. Accordingly, he is not entitled to back pay for that period of time. See N.J.A.C. 4A:2-2.10(d)9; See also, In the Matter of Christine Locke (MSB, decided April 25, 2007).

RuleN.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 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 120 working day suspension with a return to duty drug test. The Commission further orders that the appellant shall not be granted back pay, benefits and seniority for the period following the conclusion of the 120 working day suspension.

Counsel fees are denied pursuant to N.-/.4.C. 4A:2-2.12.

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