Jason Martin City of East Orange, CSC Docket No. 2020-1050

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BackgroundThe appeal of Jason Martin, Police Officer, City of East Orange, Police Department, removal effective September 10, 2019, on charges, was heard by Administrative Law Judge Jude-Anthony Tiscornia (ALJ), who rendered his initial decision on May 5, 2020. No exceptions were filed by the parties.

AnalysisHaving considered the record and the ALJ's initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on September 16, 2020, accepted and adopted the Findings of Fact as contained in the attached ALJ’s initial decision. However, the Commission does not adopt the recommendation to suspend the removal for a one- year period. Rather, the Commission reverses the removal and orders that the appellant be reinstated.

The appellant was removed on charges or inability to perform duties and other sufficient cause. Specifically, the appointing authority alleged that the appellant was unqualified to be a Police Officer since he was dismissed from the Mercer County Police Academy (Academy). The pertinent facts of this matter are discussed in the ALJ’s initial decision. Briefly, the ALJ found that the alleged “contraband” possessed by the appellant was insufficient to support his removal from the Academy. As this matter was a joint case between the Commission and the Police Training Commission (PTC), where the PTC had the predominant interest, the PTC’s August 19, 2020 final decision affirming the ALJ’s recommendation to reverse the appellant’s dismissal from the Academy is attached. Any findings of facts made by the PTC regarding the appellant’s dismissal from the Academy are binding on the Commission. However, the Commission has sole jurisdiction over the appellant’s removal from employment. As his removal from the Academy was the reason for his removal from employment, and that dismissal has been reversed, the Commission finds that the disciplinary charges underlying his removal are dismissed.

Administrative Law JudgeIn his initial decision, the ALJ indicated that the removal should “be suspended for a period of one year from the date of this decision pending Martin’s successful completion of Police Academy training.” The Commission rejects this determination. It is clear that a Police Officer appointed from a Civil Service list who has no yet completed a working test period can only be removed from employment via disciplinary action.! In this case, the appellant was appointed from a list and removed during his Academy training and prior to the completion of his working test period. Accordingly, his removal is governed by N.dJ.A.C. 4A:2-2, et seq., and therefore, he is entitled to any and all remedies provided for in that chapter upon the reversal of that removal. As such, as the charges underlying his removal have been dismissed, the Commission orders that the removal be reversed, and the appellant be reinstated and sent to a new Academy as soon as practicable.

AnalysisAs the removal has been reversed, the appellant is entitled to mitigated back pay, benefits, and seniority and reasonable counsel fees pursuant to N.J.A.C. 4A:2- 2.10 and N.J.A.C. 4A4:2-2.12. However, the appellant is not entitled to receive back pay, benefits and seniority for the entire period from the date of his removal to the date of his reinstatement. In this regard, the Commission notes that the appellant was not yet a permanent employee and, per N.J.A.C. 4A:4-5.2(d)1, had not even begun his working test period when he was removed. Since it cannot be assumed that the appellant would have successfully completed the Academy or his subsequent working test period, he should only receive back pay from September 10, 2019 until the date the Academy he was removed from concluded. See e.g., In the Matter of Justin Miller (MSB, decided June 18, 2014); In the Matter of Terrell Twiggs (MSB, decided May 9, 2007); In the Matter of Jennifer Mortimer (MSB, decided April 26, 2006) and In the Matter of Rosalind Candelaria (MSB, decided November 10, 1998).

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.

1 Per Nid.A.C. 4A:4-5.2(d)1, law enforcement officers who are required by the Police Training Act to complete a police training course shal] not begin their working test period until notification is received by the appointing authority from the PTC of the successful completion of the police training course. However, major disciplinary procedures applicable to employees serving in a working test period (see N.J.A.C. 4A:2-2) shall also be applicable to such officers from the date of appointment until completion of police training. Upon successful completion of the working test period, the date of appointment from the eligible list shall be recorded as the date of regular appointment.

26, 2003), the Commission’s decision will not become final until any outstanding issues concerning back pay or counsel fees are finally resolved. However, under no circumstances should the appellant’s reinstatement be delayed based on any dispute regarding back pay or counsel fees.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore reverses that action. It is further orders that the appellant is entitled to mitigated back pay, seniority and benefits pursuant to N.J.A.C. 4A:2-2.10 from September 10, 2019 until the date the Academy he was removed from concluded. Additionally, the appellant is entitled to reasonable counsel fees pursuant to N.J.A.C. 44:2-2.12. An affidavit of mitigation and 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. However, under no circumstances should the appellant’s reinstatement be delayed based on any dispute regarding back pay or counsel fees.

The parties must inform the Commission, in writing, if there is any dispute as to back pay or counsel 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.