Vitaly Smirnov Department of the Treasury, CSC Docket No. 2019-3335

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BackgroundThe appeal of Vitaly Smirnov, Senior Investment Analyst, Department of the Treasury, Division of Investment, removal effective May 10, 2019, on charges, was heard by Administrative Law Judge Elia A. Pelios, who rendered his initial decision on October 18, 2021. Exceptions were filed on behalf of the appellant and a reply to exceptions was filed on behalf of the appointing authority.

AnalysisHaving considered the record and the ALd’s initial decision, and having made an independent evaluation of the record, including a thorough review of the submissions of the parties, the Civil Service Commission (Commission), at its meeting of November 17, 2021, accepted and adopted the Findings of Fact and Conclusion as contained in the attached ALJ’s initial decision. However, the Commission did not adopt the recommendation to uphold the removal. Rather, the Commission imposed a six-month suspension.

DISCUSSION

The appellant was served with a Final Notice of Disciplinary Action removing him from employment, effective May 10, 2019, on charges of conduct unbecoming a public employee, chronic or excessive absenteeism or lateness and other sufficient cause. Specifically, the appointing authority asserted that the appellant falsified his timesheets when, over 98 instances, he arrived late or left early from work but reported that he actually worked at those times, totaling 185 hours. Upon the appellant’s appeal to the Commission, the matter was transmitted to the Office of Administrative Law for a hearing as a contested case.

Administrative Law JudgeIn his initial decision, the ALJ found no real dispute regarding the facts underlying the appellant's misconduct. Accordingly, the ALJ recommended upholding the charges.! Regarding the penalty, the ALJ did not find that the appellant's “heart-wrenching” circumstances nor his 20 years of prior service with no formal discipline mitigated against his removal. Rather, the ALJ determined that removal was appropriate since the appellant’s falsification of his timesheets and improper payment violated the public trust.

AnalysisIn his exceptions, the appellant contends, inter alia, that the appointing authority did not meet its burden of proof and violated his due process rights. He also argues that the ALJ improperly excluded evidence regarding other employees who were disciplined for similar misconduct and contends that, even if he were guilty, that removal was too harsh a penalty. He further contends that the appointing authority imposed an improper fine as he worked all of his required hours.

In reply, the appointing authority argues that the evidence in the record clearly supported the charges and that the ALd properly determined that the charges supported the appellant’s removal from employment.

Upon its de novo review of the record, including the exceptions and reply,2 the Commission agrees with the ALJ regarding the charges; however, it does not agree that the proper penalty is removal. In determining the proper penalty, the Commission’s review is also de novo. In addition to its consideration of the seriousness of the underlying incident in determining the proper penalty, the Commission also utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). In assessing the penalty in relation to the employee’s conduct, it is important to emphasize that the nature of the offense must be balanced against mitigating circumstances, including any prior disciplinary history. However, it is well established that where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual’s disciplinary history. See Henry v. Rahway State Prison, 81 N.J. 571 (1980). It is settled that the theory of progressive discipline is not a “fixed and immutable rule to be followed without question.” Rather, it is recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. See Carter v. Bordeniown, 191 N.J. 474 (2007).

1 Although the ALJ declined to uphold the allegations of “theft.”

2 As the Commission does not find any of the appellant's exceptions to have merit, no discussion is required. However, the Commission notes that the appellant's argument regarding the fine imposed by the appointing authority is misplaced. In this regard, as the Commission has upheld the charges regarding his receipt of improper payment, his reimbursement as a form of restitution was appropriate.

said, the Commission is in no way minimizing the appellant’s highly improper conduct. Certainly, his actions in falsifying his timesheets and receiving improper payment for services cannot be condoned and absent any mitigating factors would be worthy of removal from employment. However, the Commission cannot ignore that the appellant was a 20-year employee with no formal disciplinary history, who had apparently performed commendably during that time. Moreover, the extreme circumstances detailed in the initial decision, described as “heart-wrenching” by the ALJ, cannot be ignored. In fact, the evidence in the record indicated that the appellant was actually suffering from “clinical stress” during this time. While this does not excuse the misconduct, it does provide context and coupled with the appellant's prior history, provide reasons to impose a penalty less than removal. In that regard, it would appear that absent the circumstances, the appellant would likely not have engaged in the misconduct, and thus, is unlikely to engage in future misconduct. As such, he is deserving of the opportunity to maintain his employment. Accordingly, the Commission finds that a six-month suspension is the proper penalty. The Commission notes that the six-month suspension is the most severe sanction, absent removal, that can be imposed. This penalty should serve as a warning to the appellant that any future infractions could lead to a more severe disciplinary sanction, including removal from employment.

Since the penalty has been modified, the appellant is entitled to back pay, benefits and seniority six months from the first date of his separation to the actual date of his reinstatement. See N.J.A.C. 4A:2-2.10. However, the appellant is not entitled to counsel fees. Pursuant to N.J.A.C. 4A:2-2,12(a), an award of counsel fees is appropriate 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 any disciplinary appeal is the merits of the charges, not whether the penalty imposed was appropriate. See Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121, 128 (App. Div. 1995); James L. Smith v. Department of Personnel, Docket No. A-1489-02T2 (App. Div. Mar. 18, 2004); In the Matter of Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In this case, the Commission has sustained charges and imposed major discipline. Therefore, the appellant has not prevailed on ail or substantially all of the primary issues of the appeal. Consequently, as the appellant has failed to meet the standard set forth at N.J.A.C. 4A:2-2.12(a), 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. In light of the Appellate Division’s decision in Dolores Phillips v. Department of Corrections, Docket No. A-5581-01T2F (App. Div. February 26, 2003), the Commission’s decision will not become final until any outstanding issues concerning back pay are finally resolved. However, under no circumstances should the appellant’s reinstatement be delayed pending 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. The Commission further orders that the appellant be granted back pay, benefits and seniority as specified above. The amount of back pay awarded is to be reduced and mitigated as provided for in N.JA.C. 4A: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. Pursuant to N.J.A.C. 4A:2-2.10, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay. However, under no circumstances should the appellant’s reinstatement be delayed pending any dispute as to the amount of back pay.

Counsel fees are denied pursuant to N.J.A.C. 4A:2-2.12.

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 should be pursued in the Superior Court of New Jersey, Appellate Division.