Theresa McKinney- Wardrick, CSC Docket No. 2020-1914

BackgroundThe appeal of Theresa McKinney-Wardrick, Senior Cook, Newark School District, 30 working day suspension, on charges, was heard by Administrative Law Judge Jude-Anthony Tiscornia (ALJ), who rendered his initial decision on January 18, 2023. Exceptions were filed on behalf of the appellant and appointing authority.

AnalysisHaving considered the record and the ALJ’s initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions, the Civil Service Commission (Commission), at its meeting on February 22, 2023, adopted the ALJ’s Findings of Fact and conclusions and _ his recommendation to reverse the 30 working day suspension.

As indicated above, the Commission thoroughly reviewed the exceptions filed in this matter. Upon that review, it does not find anything persuasive to overturn the ALJ’s recommendations regarding the reversal of the 30 working day suspension. The ALJ's initial decision was well-reasoned and his findings and conclusions were based mainly on his assessment of the credibility of the witnesses. In this regard, upon its de novo review of the record, the Commission acknowledges that the Ald, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 Nig. 108 (1997). “[T]rial courts’ credibility findings .. . are often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record.” See also, In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Id. at 659 (citing Locurto, supra). The Commission appropriately gives due deference to such determinations. However, in its de novo review of the record, the Commission has the authority to reverse or modify an ALJ’s decision if 1t is not supported by sufficient credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B-10(c); Cavalieri u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). In this matter, the exceptions filed by the appointing authority are not persuasive in demonstrating that the ALJ's credibility determinations, or his findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. As such, the Commission has no reason to question those determinations or the findings and conclusions made therefrom.

Further, the Commission rejects the argument that the appellant was guilty of the current alleged infraction by admittedly not previously reporting any unauthorized entrance into the kitchen. In this regard, the appellant was not charged with that purported infraction and thus, it cannot be imposed now. Moreover, past alleged misconduct cannot be utilized to prove current infractions. Additionally, the Commission is not persuaded by the appointing authority’s argument that other staff did not have access to the kitchen. In this regard, it acknowledges that staff apparently had access, but were “prohibited” from “breaching the security of the locked kitchen.” As such, the ALJ’s crediting the appellant’s testimony that she left the kitchen clean and that others must have created the issue was not arbitrary, capricious or unreasonable.

Since the 30 working day suspension has been reversed, the appellant is entitled to 30 working days of back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10. She is also entitled to reasonable counsel fees pursuant to N.J.A.C. 4A:2- 2.12.

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, Docket No. A-5581-01T2F (App. Div. Feb. 26, 2003), the Commission’s decision will not become final until any outstanding issues concerning counsel fees are finally resolved.

ORDER

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was not justified and reverses that action. The Commission further orders that the appellant be granted 30 days of back pay, benefits, and seniority. The amount of back pay awarded is to be reduced as provided for in N.cdJ.A.C. 4A:2-2.10(d)3. The Commission also orders reasonable counsel fees pursuant to N.J.A.C. 4A:2-2.12(a). Proof of income earned, and an affidavit 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.

Pursuant to N.d.A.C. 4A:2-2.12(b), the parties shall make a good faith effort to resolve any dispute as to the amount of counsel fees.

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