Anthony Graves, CSC Docket No. 2019-3361

BackgroundAnthony Graves, a Fire Captain with Newark, represented by Tisha N. Adams, Esq., requests that the Civil Service Commission (Commission) enforce its prior decision, Jn the Matter of Anthony Graves (CSC, decided April 17, 2019).

By way of background, on April 6, 2016, Graves was indefinitely suspended without pay due to pending criminal charges. On January 17, 2019, Graves was found not guilty and on January 22 and 23, 2019, Graves sent the appointing authority letters advising that his criminal matter had been resolved and requesting that he be reinstated and be awarded back pay, benefits and sentority. Thereafter, Graves requested interim relief to the Commission indicating that the appointing authority refused to reinstate him and award him back pay despite being notified that the criminal charges against him were adjudicated in his favor. In Graves, supra, the Commission ordered that Graves receive back pay from January 22, 2019 until he was either reinstated or issued a new Preliminary Notice of Disciplinary Action (PNDA). Further, it ordered that should he be reinstated ov not ultimately removed from employment, he would be entitled to back pay, benefits and seniority pursuant to N.e/.A.C. 4A:2-2.10(c)2. His request for counsel fees was denied.

Appellant's argumentIn his request for enforcement, Graves submits an April 25, 2019 letter to the appointing authority’s counsel asking if the appointing authority was going to reinstate him. Additionally, the letter requested an itemized accounting of the back pay due Graves from January 22, 2019, and when payment would be made, as well

DPF.139 * Revised 7/95 as an itemized accounting of back pay, benefits and seniority from April 6. 2016 to the present and when his health benefits were going to be reinstated, Graves indicated that he did not receive a response to the letter and he has not received back pay nor was he reinstated or served a new PNDA.

In response, the appointing authority, represented by John J. Zidziunias, Esq., indicates that Graves received back pay from January 22, 2019 through the present and is continuing to receive back pay while it finalizes its PNDA against him. Specifically, it indicates that Graves received $16,327.78 in back pay to date. which it asserts should be considered sufficient to forestall any fines or penaltics.

In reply, Graves presents that he remains indefinitely suspended as his employment status was changed to a suspension with pay. He emphasizes that the appointing authority was ordered to either immediately reinstate him or issue a new PNDA and neither was done. Therefore, he argues that he should receive interest and counsel fees as he asserts that the appointing authority has acted in bad faith. Additionally, Graves indicates that the appointing authority has failed to articulate how the lump sum back pay payment of $42,816.04 was calculated nor has it calculated across the board adjustments, provided vacation benefits, sick leave credits, seniority benefits, pension benefits or healthcare benefits. Additionally, he represents that he and his children remain without health insurance. Further, Graves argues that deductions for union dues, in the amount of $605.79, were taken without authorization and in violation of law. He reiterates the Commission’s prior decision states that the record indicated that the appointing authority had enough information to issue a new PNDA. Instead, Graves received a May 24, 2019 letter from internal affairs indicating that he was under investigation. However, the letter was vague and did not provide a basis for his suspension. Graves asserts that the appointing authority's actions have heen taken in bad faith and invidious motivation due to a civil suit that he filed against 11. Therefore, he requests an order enforcing the Commission's prior decision awarding benefits and seniority from January 22, 2019 to the present as well as requiring specific calculation regarding the appointing authority's award of back pay. benefits, and seniority. Additionally, Graves requests an order to immediately reinstate him with back pay, benefits and seniority from April 6, 2016 to January 21, 2019, or a full plenary hearing at the Office of Administrative Law regarding the administrative charges issued on April 6, 2016.

In further response, the appointing authority argues that Graves’ request demanding a PNDA be rushed is against the procedures of the appointing authority and the safety of Newark’s residents. Additionally, the Commission already denied his request for interest and counsel fees and he acknowledged that. he has received back pay. The appointing authority argues that it is in compliance with the Commission’s prior order.

CONCLUSION

RuleNvdA.C. 4A:2-2.4(a) provides that no suspension or fine shall exceed six months except for suspensions pending criminal complaint or indictment.

AnalysisNid. A.C. 4A:2-2.4(b) provides in local service, the appointing authority may provide that a suspension be with or without pay.

Nid. A.C, 4A:2-2.5(a) provides, in pertinent part, that an emplovmee must be served with a PNDA setting forth the charges and statement of facts supporting the charges (specifications), and afforded the opportunity for a hearing prior to imposition of major discipline.

RuleNJAC. 4A:2-2.7(a)2 provides, in pertinent part, that an appointing authority may impose an indefinite suspension to extend beyond six months where an employee is subject to criminal charges, but not beyond the disposition of the criminal complaint or indictment.

N.AAC, 4A:2-2.10(c) provides that where an employee, other than a municipal police officer, has been suspended based on a pending criminal complaint or indictment, following disposition of the charges the emplovee shall receive hack pay, benefits and seniority if the employee is found not guilty at trial, the complaint or indictment is dismissed, or the prosecution is terminated. NJAC. TA:2-2.10(e)2 states, in pertinent part, that where disciplinary action is taken following the disposition of the complaint or indictment, such items shall not he awarded in the case of removal.

AnalysisNAC, 44:2-2.11(a) provides, in pertinent part. that when the Commission awards back pay, it may also award interest when an appointing authority has unreasonably delayed compliance with an order of the Commission or where the Commission finds sufficient cause based on the particular case.

RuleN.J.A.C. 4A:2-1.5(b) provides, in pertinent part, that back pav. benefits and counsel fees may be granted where the appointing authority has unreasonably failed or delayed to carry out an order of the Commission or where the Commission finds 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.

AnalysisN.J.A.C. 44:10-2.1, states, in pertinent part, that where there is evidence of a violation of or noncompliance with Title 11A, New Jersey Statutes. or Title 4A, N.d.A.C., the Commission may assess costs, charges and fines not to exceed $10,000.

In this matter, the Commission finds that the appointing authority is in non- compliance with the Commission’s prior decision and Civil Service rules. Specifically, under N.J.A.C, 4A:2-2.4(a) and 4A:2-2.7(a)2, no suspension can exceed six months except for suspensions pending criminal complaint or indictment Accordingly, in In the Matter of Anthony Graves (CSC, decided April 17, 2019). as Graves had been suspended over six months and his pending criminal matter was adjudicated in his favor, the Commission ordered that he receive back pay from January 22, 2019 until he was either reinstated or issued a new PNDA. However instead of either reinstating him or issuing a new PNDA as ordered. the appointing authority converted his suspension without pay to a suspension with pay. While a suspension with pay is allowed in local service, a suspension with pay is still a suspension. As such, Graves’ continued suspension over six months without pending criminal charges, even with pay, is in violation of Civil Service rules. As indicated in the prior decision, to determine otherwise would be contrary to N.J_A.C, 4A:2-2.7(a)2, which purpose is to keep public employees from being held in limbo indefinitely even after being exonerated in a criminal proceeding. Specifically, Graves is being kept in limbo without forthcoming administrative charges.

Therefore, the Commission orders that within 20 days of the issuance date of this decision, the appointing authority shall either issue a new PNDA seiting forth administrative charges against Graves or reinstate him. Additionally. the Commission warns the appointing authority that if it fails to issue a new PNDA or reinstate him within this time, upon the Commission finding that the appointing authority has not complied with this order upon receipt of another request for enforcement, the Commission shall order his reinstatement and award mitigated back pay to the date of his initial indefinite suspension without pay. Moreover, the Commission will fine the appointing authority up to $10,000 and order interest and counsel fees! upon a further finding of non-compliance. Finally, the Commission orders that the appointing authority provide a detailed accounting to Graves explaining how it calculated any payments awarded, seniority, and bencfits.

ORDER

Therefore, it is ordered that Anthony Graves’ request for enforcement ts granted in part. Within 20 days of the issuance of this decision, the appointing authority shall either issue a new PNDA setting forth the administrative charges against him or reinstate him. Upon a finding that the appointing authority has not complied with this order, the Commission will order his reinstatement with back pay to the date of his initial indefinite suspension without pay. Additionally. the appointing authority shall be subject to fines of up to $10,000, interest and counsel fees. Further, the Commission orders the appointing authority provide a detailed accounting to Graves explaining how it calculated any payments awarded. seniority, and benefits.

1 There does not. appear to be a basis to award counsel fees al this juncture. While the appointing authority is in non-compliance, it has indicated that it is still investigating this matter, While the Comniission is unclear as to why such investigation has taken such a lengthy amount of time, it will not award counsel] fees absent a clear showing of bad faith or invidious motivation. In this regard. the appointing authority has at least atlempted to comply with some portions of the Commission's prior order. However, should it not comply with the current order, counsel fees will be awarded.

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