Gremier Alemany ; and Lucas Zarate, CSC Docket No. 2018-3600

BackgroundThe appeals of Gremier Alemany and Lucas Zarate, of their disqualification from the examination for Fire Captain (PM1051V), Paterson! for cheating were heard by Acting Director and Chief Administrative Law Judge Barry E. Moscowitz (ALJ), who rendered his initial decision on June 24, 2022. Exceptions were filed on behalf of the respondent agency and replies were filed on the appellants’ behalf.

AnalysisHaving considered the record and the ALJ’s initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions and replies, the Civil Service Commission (Commission), at its meeting on August 3, 2022, accepted and adopted the Findings of Fact and Conclusion as contained in the attached AL.J’s initial decision.

DISCUSSION

Initially, it is noted that Civil Service examination development, scheduling, administration and scoring are functions of the Commission as provided for in Title 11A of the New Jersey Statutes and Title 4A of the New Jersey Administrative Code.2 This matter arises from allegations that the appellants cheated on the Civil Service promotional examination for Fire Captain (PM1051V), Paterson. These allegations were based on observations of irregularities by the examination administration staff. Upon review, it was alleged by staff that the appellants did, indeed, cheat on the examination and they should be disqualified from appearing on the PM1051V eligible list. Upon the appellants’ appeals of their disqualification, the Commission, rather than decide the matter on the written record, granted hearings based on the materially disputed facts in the record. See In the Matter of Gremier Alemany and Lucas Zarate, Fire Captain (PM1051V), Paterson (CSC, decided September 5, 2018).

1 It is noted that the respondent in this matter is the Civil Service Commission, which made the initial determinations to disqualify the appellants and from which determinations the appellants’ appeals stem. Paterson, as the appellants’ employer, had no hand in the determination to disqualify the appellants.

2 These functions are performed by various Divisions in the Commission, all of which are separate from the appeal process and independent of the members of the panel deciding this matter.

Administrative Law JudgeIn his initial decision, the ALJ determined that the credible evidence in the record did not support that the appellants had cheated on the examination. In this regard, the ALJ found the appellants’ explanations of the circumstances as to the events that occurred credible, and coupled with the ALJ’s finding that no other preponderating evidence was presented to establish that the appellants were cheating, he recommended granting the appellants’ appeals. As to remedy, the ALJ ordered that the appellants be restored to the eligible list and be awarded “back pay, seniority, counsel fees, and costs.”3

AnalysisIn its exceptions, the respondent argues that the ALJ shifted the burden of proof from the appellants in making his determination. It also argues that the ALJ’s credibility determinations were in error as he ignored inconsistencies in the appellants’ testimony. It further argues that even if the ALJ’s substantive determination is upheld, the remedies provided were inappropriate.

In reply, the appellants argues that the ALJ’s decision is proper in all respects. They also provides reasons as to why the ALJ’s granting of the remedies of back pay, seniority, counsel fees and costs was correct.

Upon its de novo review of the entire record, including the exceptions filed, which the Commission finds unpersuasive, the Commission adopts the ALJ’s findings and conclusions and agrees that the appellants’ appeals should be granted. The Commission makes the following comments. The ALJ’s determination in this matter is based significantly on his assessment of the credibility of the witnesses’ testimony and his conclusions made therefrom. In this regard, upon its de novo review of the record, the Commission acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). “[T]rial courts’ credibility findings . . . are often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record.” See also, In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. id. at 659 (citing Locurto, supra). The Commission appropriately gives due deference to such determinations. However, in its de novo review of the record, the Commission has the authority to reverse or modify an ALJ’s decision if it is not supported by sufficient credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B-10(c);

3 In In the Matter of Gremier Alemany and Lucas Zarate, supra, the Commission did not specifically authorize the ALJ to provide a remedy upon the appellants’ successful appeals. In this regard, any such remedies are solely to be provided by the Commission under the appropriate statutes and regulations.

Cavaliert u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). In this matter, the exceptions filed are not persuasive in demonstrating that the ALJ’s credibility determinations, or his findings and conclusions based on those determinations and the other evidence in the record, were arbitrary, capricious or unreasonable. As such, the Commission has no reason to question those determinations or the findings and conclusions made therefrom. Further, the argument that the ALJ shifted the burden of proof is misplaced as the ALJ essentially found that the preponderance of the evidence in the record, namely, the appellants’ credible testimony that they had not cheated, satisfied their burden of proof.

However, the Commission disagrees with the ALJ regarding the remedies provided. In this regard, N.J.A.C. 4A:2-1.5(b) provides:

Back pay, benefits and counsel fees may be awarded in disciplinary appeals and where a layoff action has been in bad faith. See N.J.A.C.

4A:2-2.10. In all other appeals, such relief may be granted where the appointing authority has unreasonably failed or delayed to carry out an order of the Civil Service Commission or where the Commission sufficient cause based on the particular case. A finding of sufficient cause may be made where the employee demonstrates that the appointing authority took adverse action against the employee in bad faith or with invidious motivation.

The instant matter is not a disciplinary appeal, nor is it one where the appointing authority has failed or delayed carrying out a Commission order. Thus, back pay and counsel fees may only be awarded if the Commission finds sufficient cause. No such cause is present in these matters. Initially, as the appellants were merely candidates for appointment to Fire Captain and were removed from a promotional list, they cannot be awarded back pay as no such pay was initially lost. Moreover, individuals whose names merely appear on a list do not have a vested right to appointment. See In re Crowley, 193 N.J. Super. 197 (App. Div. 1984), Schroder v. Kiss, 74 N.d. Super. 229 (App. Div. 1962). The only interest that results from placement on an eligible list is that the candidate will be considered for an applicable position so long as the eligible list remains in force. See Nunan v. Department of Personnel, 244 N.J. Super. 494 (App. Div. 1990).

Moreover, there is no entitlement to counsel fees or costs in this matter. In this case, the allegations were that the appellants, Civil Service employees, cheated on a Civil Service examination. If proven true, not only would that conduct warrant disqualification from the list, but likely disciplinary action up to and including removal from employment by their employer. Such allegations must be taken seriously as the integrity of the Civil Service examination system and the tenet that appointments are being made based on actual merit must be protected. The fact that the appellants ultimately were found not to have cheated does not entitle them to counsel fees under the above rule. Further, it is clear that the initial actions taken by this agency in investigating the matter and bringing forth the disqualifications were done in good faith and based on the best information it had at that time. There can be no question that the sole goal of bringing forth the disqualifications was to protect the efficacy of the Civil Service system. As such, there is not sufficient cause in this particular case to award counsel fees.4

However, appropriate remedies must be provided. The record indicates that based on his score on the examination, Gremier Alemany would have been ranked ninth on the PM1051V list. Additionally, he has Civil Service veterans preference. See N.J.A.C. 4A:5-1.1. A review of the certifications of the list indicate that he would have been the number one ranked veteran eligible on the May 21, 2019, PL190702 certification of the list. Absent a reason for his removal from the list, as the highest ranked eligible, his appointment from that certification would have been required at that time.5 See N.J.A.C. 4A:4-4,.8(a)ii and N.J.A.C. 4A:5-2.2. Accordingly, the Commission orders that Alemany receive an appointment from that certification, effective June 11, 2019, the date of the other appointments from that certification, which date shall be conferred upon his successful completion of a working test period. This appointment is for salary step placement and seniority-based programs only.®

Lucas Zarate is a non-veteran and the record indicates that based on his examination score he would have been ranked 26TH on the PM1051V list. As a non- veteran he was not entitled under any regulation to an appointment and a review of all of the certifications of the list indicate that his name could have been bypassed for appointment on all of those certifications pursuant to the “Rule of Three.” See N.J.A.C, 4A:4-4.8(a)3. Accordingly, the Commission orders that Zarate’s name be restored to the list and reflected as bypassed on all those certifications. However, Zarate’s name is to be certified until the expiration of the PM1051V list. That list is set to expire on January 16, 2023. As such, if it is not certified prior to its expiration, the Commission orders that it be revived at the time of the first certification of the new eligible list,? so that his name can be certified on that first certification only, for prospective employment opportunity.§

4 The Commission notes that if it had granted counsel fees, it would be this agency’s responsibility to provide those fees, as it was the respondent. Paterson, as the appellants’ employers, would have no liability for such fees. 5 The Commission sees no major discipline in the appellant's official personnel record. In most circumstances, such discipline would be the most likely reason for the removal of a veteran from a promotional list. Absent such discipline, the Commission finds no other reasons that he would have been removed from the certification by the appointing authority. § There is still no entitlement to back pay based on this appointment as the appellant never served in the Fire Captain title and this remedy is consistent with other Commission cases where a veteran is restored to a list and his appointment is mandated. See e.g., In the Matter of Ali Dismuke (CSC, decided February 12, 2014). 7 The Fire Captain (PM2342C), Paterson list has not yet promulgated. 8 As the 26TH ranked candidate, he will be listed first on any subsequent certification of the PM1501V list, or on the first certification of the PM2342C list. However, as a non-veteran, his appointment is not mandated,

ORDER

Therefore, it is ordered that the appeals of Gremier Alemany and Lucas Zarate be granted. It is further ordered that their names be restored to the Fire Captain (PM1501V), Paterson eligible list.

Additionally, it is ordered that Alemany receive a retroactive appointment, effective, June 11, 2019, which date shall be conferred upon his successful completion of a working test period. This appointment is for salary step placement and seniority- based programs only.

Finally, it is ordered that Zarate’s name is to be certified until the expiration of the PM1051V list. Ifit is not certified prior to its expiration, the Commission orders that it be revived at the time of the first certification of the PM2342C eligible list, so that his name can be certified on that first certification only, for prospective employment opportunity.

The Civil Service Commission awards no additional remedies.

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