Robert Brown, CSC Docket No. 2019-2355

BackgroundThe appeal of Robert Brown, Police Officer, Salem City, Police Department, of the bypass of his name from the eligible list for Police Sergeant (PM0622N), was heard by Administrative Law Judge Joseph A. Ascione (ALJ), who rendered his initial decision on February 25, 2022. 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, including a thorough review of the exceptions and reply, the Civil Service Commission (Commission), at its meeting on April 6, 2022, accepted and adopted the Findings of Fact and Conclusion as contained in the attached Administrative Law Judge’s initial decision.

DISCUSSION

There is a long history to this matter. Rather than rehash that information, the prior history of this matter can be obtained by reviewing In the Matter of Robert Brown (CSC, decided July 13, 2017) (Where the Commission originally upheld Brown’s bypass from the PL160952 certification of the PM0622N eligible list); Matter of Brown, 458 N.J. Super. 284 (2019) (Where the Appellate Division remanded the matter to the Commission based on factual dispute in the record); and In the Matter of Robert Brown (CSC, decided March 27, 2019) (Where the Commission transmitted the matter to the Office of Administrative Law pursuant to the Appellate Division’s decision),

Administrative Law JudgeIn his initial decision, the ALJ found that Brown’s bypass was improper as Brown provided a prima facie case that the bypass was based on retaliatory motives and the appointing authority did not refute that showing by providing otherwise legitimate business reasons for the promotion. Of note in this regard, the ALJ found the Police Chiefs testimony not credible as to the reasoning behind Brown’s bypass. After its independent review of the record, the Commission agrees with the ALJ and finds that Brown has sustained his burden of proof in establishing that his bypass was improper.

AnalysisIn its exceptions, the appointing authority argues that the ALJ improperly found the Police Chiefs testimony not credible, as he proffered legitimate business reasons for Brown’s bypass. If further argues that Brown did not establish a nexus between his bypass and any purported retaliatory motive.

In response, Brown argues that the appointing authority failed to show that the officers promoted were more qualified than him and that he had established disparate and retaliatory treatment,

The Commission is unpersuaded by the appointing authority’s exceptions. In this regard, 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 NJ. 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); Cavalieri v. Public Employees Retirement System, 368 N.dJ. Super. 527 (App. Div. 2004). In this matter, there is no evidence in the record to demonstrate that the ALJ’s finding the Police Chief's testimony regarding the reasons for Brown’s bypass not credible, in light of the other credible evidence in the record, was arbitrary, capricious and unreasonable. As such, the Commission affirms the ALJ’s determination that the bypass was improper.

RuleRegarding the remedy, 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.

Analysis4A: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 to carry out a Commission order. Thus, back pay and counsel fees may only be awarded if the Commission finds sufficient cause. In past bypass appeals, the Commission has granted the successful appellant the next available appointment to the title in question with a retroactive appointment date, “front” and back differential pay, and counsel fees. See e.g., In the Matter of Michael Kudrick v. City of Perth Amboy, Docket No. A-4007-97T2 (App. Div. April 15, 1999). In this case, the Commission finds no reason to deviate from that remedy. In this regard, the Commission has the authority to order the displacement of the lowest-ranked eligible appointed below the appellant. However, and consistent with Kudrick, supra., it finds that would be an mequitable application of its authority. A review of the record indicates that two lower-ranked employees were appointed on December 5, 2016, and continue to serve as Police Sergeant.) It would not be useful or equitable to displace the lowest-ranked appointee given his long and continued tenure as a Police Sergeant. Rather, the proper remedy for Brown would be to be awarded the next available Police Sergeant position with a retroactive appointment date of December 5, 2016,2 and, based on the appointing authority’s bad faith, differential back pay from that date, along with “front” pay from the date of this determination, until his actual Police Sergeant appointment.

The Commission also awards reasonable counsel fees to the attorney for the appellant. With regard to counsel fees, as the appointing authority improperly bypassed appellant on the subject certification, it improperly deprived him of a promotion to Police Sergeant. The appointing authority’s bad faith constitutes sufficient cause to assess it for the cost of the appellant’s representation in this matter. See Kudrick, supra. However, the appellant is not entitled to counsel fees for any proceedings related to this matter before the Appellate Division or any other

1 It is noted that the appointing authority has also appointed two additional Police Sergeants from a subsequent list. However, for the same reasons expressed, the Commission declines to order the displacement of either of those employees. The remedy provided by the Commission in this matter will serve to make the appellant “whole.” 2 This will only constitute his permanent appointment date as a Police Sergeant after the appellant successfully completes his working test period. If he does not successfully complete it, he will not receive a permanent appointment as a Police Sergeant. Rather, his record would then reflect that his appointment as a Police Sergeant, effective December 5, 2016, would be considered a provisional appointment and would be discontinued the date of his return to his Police Officer title after the working test period. In either circumstance, Brown is entitled to the back and front pay awarded in this decision, forum as any time expended litigating related matters in other forums is not reimbursable by the Commission. See N.dJ.S.A. 11A:2-22; N.J.A.C. 4A:2-2.12(f). See also, In the Matter of Rachel Ann Burris, 338 N.J. Super. 493 (App. Div. 2001); Tooker v. Hartford Accident and Indemnity Co., 186 N.J. Super. 572, 578 (App. Div. 1975), cert, dented, 70 N.eJ. 137 (1976).

This decision resolves the merits of the dispute between the parties. 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 are finally resolved.

ORDER

The Civil Service Commission finds that the action of the appointing authority in bypassing Robert Brown from the PL160952 certification of the PM0622N Police Officer, Salem City eligible list was not justified and grants Brown’s appeal in that regard.

The Commission further orders that Brown receive the next available Police Sergeant position with a retroactive appointment date of December 5, 2016, and differential back pay from that date, along with “front” pay from the date of this determination, until his actual Police Sergeant appointment.

Counsel fees are awarded to the attorney for the appellant pursuant to N.J.A.C. 4A:2-1.5(b) and subject to N.J.A.C, 4A:2-2.12(f). An affidavit of services in support of reasonable counsel fees shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision. Pursuant to N.J.A.C. 4A:2-2.10 and N.eJA.C. 4A:2-2.12, the parties shall make a good faith effort to resolve any dispute as to the amount or back pay and counsel fees.

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