Vincent Fiscella, CSC Docket No. 2019-2748

BackgroundThe Appellate Division, Superior Court of New Jersey, reversed and remanded the attached determination of the Civil Service Commission (Commission), In the Matter of Vincent Fiscella, Township of Belleville, Department of Public Works (CSC, decided October 19, 2016), which denied the appellant's request for reconsideration and his request for additional counsel fees. Additionally, the Appellate Division affirmed and remanded the attached determination of the Commission, In the Matter of Vincent Fiscella, Township of Belleville, Department of Public Works (CSC, decided March 27, 2018), where the Commission determined the hourly rates and the number of hours that were billable for the counsel fee award.

By way of background, Vincent Fiscella, Jr.. a former Laborer 1 with Belleville, was removed on charges of insubordination and other sufficient cause. Specifically, Belleville asserted that Fiscella was working in another position at the voting polls while out on sick leave and he failed to attend a scheduled Workers’ Compensation appointment. In its final decision, the Commission sustained one of the disciplinary charges but modified the removal to an official written reprimand and awarded back pay and counsel fees in the amount of 50 percent of services. The Commission also denied Fiscella’s request for reconsideration regarding the sustained charge. Subsequently, Belleville appealed the Commission's decision to the Superior Court of New Jersey, Appellate Division, complaining that the 50 percent reduction in the counsel fee award was not sufficient due to the “unreasonably high” attorney bills received from Fiscella’s attorney. Fiscella also appealed the Commission’s determination to the Appellate Division regarding the penalty and the 50 percent award of counsel fees, At the Commission’s request, the Appellate Division ordered that both appeals be remanded to the Commission. On remand, the Commission found that Fiscella was to be awarded counsel fees for his law firm’s partner's time at the rate of $200 and not $400 per hour as this case lacked the legal complexity and unique legal experience to justify the hourly rate requested. Additionally, it awarded counsel fees for his law firm’s associates’ time at the rate of $150 per hour. Moreover, the Commission rejected Belleville’s argument that the number of hours that the law firm spent on this matter was unnecessary and duplicated. Accordingly, the Commission awarded Fiscella counsel fees based on all of his attorneys’ certified time at the aforementioned rates, which was then reduced by 50 percent.

Thereafter, Fiscella appealed the Commission’s decision denying him reconsideration to the Appellate Division. He challenged the finding that he was insubordinate for failing to attend a medical appointment and argued that the amount of the counsel fee award was inadequate. The Appellate Division held that the Commission “did not evaluate Fiscella’s conduct in the context of the elements of insubordination.” It noted that no superior ordered Fiscella to attend the medical appointment. Therefore, in In the Matter of Vincent Fiscella, Jr.. Township of Belleville, Depariment of Public Works, Docket Nos. A-1403-16T2 and A-3953-17T2 (App. Div., March 29, 2019), the Appellate Division reversed the Commission's decision regarding the charges. As none of the disciplinary charges were sustained, the court remanded the matter to the Commission for further consideration of counsel fees. However, the court rejected Belleville’s argument that Fiscella’s counsel fees were “so unreasonable that a further reduction is warranted.”

CONCLUSION

The Civil Service Commission finds that the charges against the appellant were not justified and therefore, reverses that action and upholds the appeal of Vincent Fiscella, Jr. N.f.S.A, 11A:2-22 provides that reasonable counsel fees may be awarded to an employee as provided by rule. N./.A.C, 4A:2-2,12(a) indicates that the Commission shall award partial or full reasonable counsel fees incurred in proceedings before it and incurred in major disciplinary proceedings at the departmental level where an employee has prevailed on all] or substantially all of the primary issues in an appeal of major disciplinary action before the Commission. As Fiscella completely prevailed on all matters, the Commission determines that he is entitled to the amount of 100 percent of services rendered. The Appellate Division affirmed the Commission’s prior determination that Fiscella is entitled to counsel fees of 362.2 hours billed at an hourly rate of $200 and 294.05 hours billed at an hourly rate of $150. Therefore, Fiscella is entitled to $116,547.50 in counsel fees. Additionally, Belleville shail reimburse Fiscella $1,806.90 for his costs as previously determined.!

ORDER

Therefore, it is order that Belleville pay Vincent Fiscella, Jr. $116,547.50 in counsel fees and $1,806.90 for costs within 30 days of receipt of this decision.

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