Alberto Aponte Essex County, CSC Docket No. 2019-1614

BackgroundThe appeal of Alberto Aponte, County Correction Sergeant, Essex County, Department of Corrections, removal effective October 23, 2017, on charges, was heard by Administrative Law Judge Irene Jones, who rendered her initial decision on September 24, 2019. Exceptions and a reply to 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 Administrative Law Judge’s initial decision, and having made an independent evaluation of the record, the Civil Service Commission, at its meeting on October 23, 2019, accepted and adopted the Findings of Fact and Conclusion as contained in the attached Administrative Law Judge’s initial decision.

As the removal has been modified, the appellant is entitled to mitigated back pay as set forth in N.J.A.C. 4A:2-2.10. However, the appellant is not entitled to counsel fees. In this regard, 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): In the Matter of Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In the case at hand, although the penalty was modified by the Commission, the charges were sustained. 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.

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 However, in light of the Appellate Division’s decision, Dolores Phillips v. Department of Corrections, unpublished, Docket No. A-5581-01T2F (App. Div. Feb. 26, 2003), the Commission’s decision will not become final until any outstanding issue concerning back pay is resolved. Regardless, under no circumstances should the appeilant’s reinstatement be delayed by any dispute as to the amount of back pay.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore modifies the removal to a six-month suspension, a demotion to County Correction Officer and bi-monthly random drug testing for one year. Accordingly, the appellant is entitled to mitigated back pay from the date after his six-month suspension until the date of his actual reinstatement. The amount of back pay awarded is to be reduced and mitigated as outlined in N.J.A.C. 44:2-2.10. Proof of income earned and an affidavit of mitigation shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision.

Counsel fees are denied pursuant to N.d.A.C. 4A2-2.12.

The parties must inform the Commission, in writing, if there is any dispute as to back pay 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 shall be pursued in the Superior Court of New Jersey, Appellate Division.