Victor Vasquez, CSC Docket No. 2018-2793

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BackgroundThe appeals of Victor Vazquez, Mark Gutierrez and Rocco Duardo, Police Officers, and Justin de la Bruyere, Police Sergeant, City of Hackensack, Police Department, of their removals effective July 20, 2017, on charges, was before Administrative Law Andrew M. Baron (ALJ), who rendered his initial decision on June 10, 2021. Exceptions were filed on behalf of the appointing authority and a reply to exceptions was filed on behalf of the appellants.

AnalysisHaving considered the record and the attached ALJ’s initial decision, including a thorough review of the extensive submissions filed in this matter, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on July 21, 2021, adopted the ALJ’s Findings of Fact and Conclusions of Law and his recommendation to reverse the removals.

As noted above, the Commission thoroughly reviewed all of the submissions in this matter. However, based on the ALJ’s thorough and well-reasoned determination, with which the Commission agrees, it finds no reason to specifically address any of those submissions. The Commission will only add the following. It is clear that nothing issued by the Bergen County Prosecutor in this matter called for the removal from employment of the appellants. Further, the Prosecutor indicated that any future impediment to their functioning as Police Officers would be on a case-by-case basis. Thus, while it is unfortunate that the appellants may be designated as “tainted” for certain purposes of their positions, and that may have affected certain current matters and may affect certain future matters, it does not render them incapable of performing the essential functions of their positions, on a case-by-case basis. Additionally, this impediment, which apparently served as the basis for the contemporaneous dismissal of certain matters, cannot form a basis to impose disciplinary action. This is the case since in order for discipline to have been imposed for the dismissed matters, it would have to have been established that the appellants engaged in improprieties in those matters. Otherwise, as indicated previously, the Commission agrees with and adopts the ALJ’s findings of fact and conclusions of law as well as his recommendation to reverse the removals.

It is noted that in In the Matter of Victor Vazquez, et al. (CSC, decided March 27, 2019), where the appellants faced removal based on other charges, the Commission modified the removals of Victor Vazquez and Rocco Duardo to six- month suspensions and upheld the removals of Mark Gutierrez and Justin de la Bruyere, effective May 9, 2017. As such, Victor Vazquez and Rocco Duardo, if not already, shall be immediately reinstated to employment and awarded back pay six months from their initial date of separation to their actual date of reinstatement per the above-cited decision. See N.J.A.C. 4A:2-2.10. However, Mark Gutierrez and Justin de la Bruyere are not entitled to these remedies as their prior removals were upheld in that decision. Further, as all the charges in these matters have been dismissed, all the appellants are entitled to reasonable counsel fees pursuant to N.J.A.C. 44:2-2.12 for fees incurred in this matter only.

This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalty imposed by the appointing authority. However, in light of the Superior Court of New Jersey, Appellate Division’s decision, Dolores Phillips v. Department of Corrections, Docket No. A- 5581-01T2F (App. Div. Feb. 26, 2003), the Commission’s decision will not become final until any outstanding issues concerning back pay or counsel fees regarding Vazquez and Duardo, or outstanding issues concerning counsel fees regarding Gutierrez and de la Bruyere are finally resolved. In the interim, as the court states in Phillips, supra, the appointing authority shall immediately reinstate Vazquez and Duardo to their permanent positions.

ORDER

The Civil Service Commission finds that the appointing authority's actions in removing Victor Vazquez, Mark Gutierrez, Rocco Duardo and Justin de la Bruyere were not justified. Therefore, the Commission reverses the removals. The Commission further orders that Mark Gutierrez and Rocco Duardo, per its previous decision, be granted back pay, benefits and seniority for the period six-month after their first date of separation through the date of their actual reinstatement. The amount of back pay awarded is to be reduced and mitigated as provided for in N.J.A.C. 4A:2-2.10. Proof of income earned, and an affidavit of mitigation shali be submitted by or on behalf of Vazquez and Duardo to the appointing authority within 30 days of issuance of this decision. All appellants are also entitled to reasonable counsel fees for this matter pursuant to N.J.A.C. 4A:2-2.12. Affidavits of services in support of reasonable counsel fees shall be submitted by or on behalf of the appellants to the appointing authority within 30 days of issuance of this decision. The parties shall make a good faith effort to resolve any dispute as to the amount of back pay or counsel fees. However, under no circumstances should Vazquez's and Duardo’s reinstatements be delayed pending resolution of any back pay or counsel fees dispute.

The parties must inform the Commission, in writing, if there is any dispute as to back pay and/or counsel fees within 60 days of issuance of this decision. In the absence of such notice, the Commission will assume that all outstanding issues have been amicably resolved by the parties and this decision shall become a final administrative determination pursuant to R. 2:2-3(a)(2). After such time, any further review of this matter should be pursued in the Superior Court of New Jersey, Appellate Division.