Marquise Montanez, CSC Docket No. 2020-1917

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BackgroundThe appeal of Marquise Montanez, Building Maintenance Worker, Hudson County, Department of Roads and Public Property, 90 working day suspension, on charges, was heard by Administrative Law Judge Ernest M. Bongiovanni, who rendered his initial decision on November 30, 2020. No exceptions were filed.

AnalysisHaving considered the record and the Administrative Law Judge’s initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on January 20, 2021, accepted and adopted the Findings of Fact and Conclusion as contained in the attached Administrative Law Judge’s initial decision to modify the 90 working day suspension to a 60 working day suspension.

Since the penalty has been modified, the appellant is entitled to 30 working days of back pay, benefits, and seniority, pursuant to 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), the 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. March 18, 2004); In the Maiter of Robert Dean (MSB, decided January 12, 1993); In the Matier of Ralph Cozzino (MSB, decided September 21, 1989). In the case at hand, although the penalty was modified by the Commission, charges were sustained and major discipline was imposed. Thus, the appellant has not prevailed on all 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.

ORDER

The Civil Service Commission finds that the action of the appointing authority in disciplinmg the appellant was justified. The Commission therefore modifies the 90 working day suspension to a 60 working day suspension. The Commission further orders that appellant be granted 30 days of back pay, benefits, and seniority. The amount of back pay awarded is to be reduced and mitigated as provided for in N.J.A.C. 4A:2-2.10. Proof of income carned 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.

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

The parties must inform the Commission, in writing, if there is any dispute as to back pay within GO 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. 2:2-8{a)(2). After such time, any further review of this matter should be pursucd in the Superior Court of New Jersey, Appellate Division.