Keith Harkcom, CSC Docket No. 2020-1077

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BackgroundThe appeal of Keith Harkcom, Senior Correctional Police Officer, South Woods State Prison, Department of Corrections, removal effective October 8, 2019, on charges, was heard by Administrative Law Judge Dorothy Incarvito-Garrabrant (ALJ), who rendered her initial decision on April 13, 2020. 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 ALJ's initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on May 20, 2020, accepted and adopted the Findings of Fact and Conclusion as contained in the attached ALJ's initial decision to modify the removal to a four-month day suspension. In this regard, while the exceptions filed by the appointing authority argue that removal is the appropriate penalty in this matter, the Commission is unpersuaded. The ALJ gave several reasonable and supportable reasons for her reduction in penalty. The exceptions have not substantively rebutted those reasons and the Commission, therefore, finds that the reduction, based on the ALJ’s professed reasons, is supportable.

Since the removal has been modified, the appellant is entitled to be reinstated to his position with back pay, benefits and seniority following his suspension until the date of his reinstatement pursuant to N.J.A.C. 4A:2-2.10.

RuleRegarding counsel fees, N.J.A.C. 4A:2-2.12(a) provides for the award of counsel fees 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 the disciplinary appeal is the merits of the charges. See Johnny Walcott v. City of

AnalysisPlainfield, 282 N.J. Super. 121,128 (App. Div. 1995); James L. Smith v. Department of Personnel, Docket No. A-1489-02T2 (App. Div. March 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 matter, while the penalty was modified, charges were sustained and major discipline was imposed. Therefore, the appellant has not prevailed on all or substantially all of the primary issues of the appeal. Consequently, as appellant has failed to meet the standard set forth at Nd. A.C, 4A:2-2.12, 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. However, in light of the Appellate Division’s decision, Dolores Phillips v. Department of Corrections, unpublished, 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 are finally resolved. However, under no circumstances should the appellant’s reinstatement be delayed based on any dispute regarding back pay.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. Accordingly, the Commission modifies the removal to a four-month suspension. Pursuant to N.Jj.A.C. 4A:2-2.10, the appellant is entitled to receive mitigated back pay, benefits and seniority from the conclusion of the four-month suspension until the actual date of reinstatement. 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 are encouraged to make a good faith effort to resolve any dispute as to back pay. However, under no circumstances should the appellant's reinstatement be delayed based on any dispute regarding 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 A. 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.