Yamalis Diaz, CSC Docket No. 2018-3193

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BackgroundYamalis Diaz, represented by William B. Hildebrand, Esq., petitions the Civil Service Commission (Commission) for reconsideration of the attached final administrative decision, rendered on April 4, 2018, in which the Commission modified her 30 working day suspension to 15 working day suspension and granted back pay, benefits, and seniority.

By way of background, the appointing authority imposed a 30 working day suspension on the petitioner on charges of conduct unbecoming a public employee and other sufficient cause. Specifically, the appointing authority asserted that the petitioner was involved in a domestic dispute at her residence and was criminally charged by the Pennsauken Police. Upon the petitioner's appeal to the Commission, the matter was referred to the Office of Administrative Law (OAL) for a hearing. The ALJ found in her initial decision that the appointing authority had met its burden of proof on all the charges. However, she concluded that the reasonable calculation of progressive discipline, in the presence of her prior disciplinary history and the current violation, was a 15 working day suspension. Upon its de novo review of the record, the Commission agreed with the ALJ’s determination regarding the charges and the ALJ’s recommendation to reduce the penalty from a 30 working day suspension to a 15 working day suspension.

AnalysisIn the instant matter, the petitioner argues that the Commssion’s decision incorrectly indicates that the penalty is a 15 working day suspension. The petitioner contends that it should have been a 15 calendar suspension. She asserts that the Final Notice of Discplinary Action (FNDA) list her suspension from

Janaury 21, 2017 to February 19, 2017. Additionally, the petitioner claims that based on a typical work schedule, changing the initial 30 calendar penalty to a 15 working day suspension actually increases the penalty. The appellant argues that it was clearly not the intent of the ALJ to increase the penalty. Thus, the petitioner requests that the 15 working day suspension be amended to indicate a 15 calendar day suspension.

The appointing authority, represented by Antonieta Paiva Rinaldi, Assistant County Counsel, argues that the petitioner was a 12 hour employee and that she had served a 15, 12 hour day suspension prior to her OAL hearing. After the Commission issued its order, it reimbursed the petitioner 60 hours of time, which is the difference between a 15 working day suspension for 12 hour employees and 8 hour employees.

CONCLUSION

RuleN.J.A.C, 4A:2-1.6(b) sets forth the standards by which a prior decision may be reconsidered. This rule provides that a party must show that a clear material error has occurred or present new evidence or additional information not presented at the original proceeding which would change the outcome of the case and the reasons that such evidence was not presented at the original proceeding.

AnalysisIn the instant matter, the appellant argues that the Commission erred in indicating that the suspension was in working days rather than calendar days. The Commission does not agree. The Commission reviewed the matter and specifically found that a 15 working day suspension was appropriate. Additionally, the Commission notes that N.J.A.C. 4A:2-2.2(c) provides that the length of a suspension in a FNDA, a Commission decision, or a settlement, when expressed in “days,” shall mean working days, unless otherwise stated. Further, the Commission considers a working day to be an 8-hour day. In the instant matter, the appointing authority indicates that it adjusted the suspension the petitioner had served to comply with a 15 working day suspension and it reimbursed the petitioner GO hours to account for the difference between 12 hour employees and 8 hour employees. Accordingly, based on the foregoing, the petitioner has not presented any persuasive evidence or arguments that the Commission erred in its prior decision and her request for reconsideration is denied.

ORDER

Therefore, it is ordered that the request for reconsideration be denied.

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