Juan Cruz Hudson County ; Department of Corrections CSC DKT. NOS 2020-2534, CSC Docket No. 2020-2534

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BackgroundThe appeal of Juan Cruz, County Correctional Police Officer, Hudson County, Department of Correction, 30, 60 and 90 working day, on charges, was heard by Administrative Law Judge Margaret Monaco, who rendered her initial decision on July 19, 2021. 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 September 1, 2021, accepted and adopted the Findings of Fact and Conclusion as contained in the attached Administrative Law Judge’s initial decision as well as her recommendation to uphold the 30 working day suspension, modify the 60 working day suspension to a 30 working day suspension and modify the 90 working day suspension to a 30 working day suspension.

As two of the suspensions have been modified, the appellant is entitled to 90 working days of back pay, benefits and seniority as provided for in N.J.A.C. 4A:2- 2.10 from the period following the three 30 working day suspensions.

N.J.A.C. 4A4:2-2.12(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 Plainfield, 282 Nd. Super,

121,128 (App. Div. 1995): In the Matter of Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In the case at hand, although two of the penalties were modified by the Commission, charges were sustained and major discipline was imposed. Consequently, as appellant has failed to meet the standard set forth at N.d. 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 However, in light of the Appellate Division’s decision, Dolores Phillips v., Department of Corrections, unpublished, Docket No. A-5581-01T2F (App.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.

ORDER

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was justified. The Commission therefore upholds the 30 working day suspension, modifies the 60 working day suspension to a 30 working day suspension and modifies the 90 working day suspension to a 30 working day suspension.

The appellant is entitled to back pay, benefits and seniority for the period following the three 30 working day suspensions. 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 earned 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.

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 R. 2:2-3(a)(2). After such time, any further review of this matter shail be pursued in the Superior Court of New Jersey, Appellate Division.

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