Lorenzo Thompson, CSC Docket No. 2020-616

BackgroundThe appeal of Lorenzo Thompson, Laborer 1, Hillside, Department of Public Works, removal effective June 25, 2019, on charges, was heard by Administrative Law Judge Leslie Z. Celentano (ALJ), who rendered her initial decision on March 30, 2022. 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, including a thorough review of the exceptions and reply, the Civil Service Commission (Commission), at its meeting of June 15, 2022, accepted and adopted the Findings of Fact and Conclusion as contained in the attached ALJ’s initial] decision.

DISCUSSION

As indicated above, the Commission thoroughly reviewed the exceptions filed by the appointing authority in this matter. In that regard, the Commission finds them unpersuasive and mostly unworthy of comment as the AL.J’s findings and conclusions in dismissing some charges, upholding others and modifying the removal to a six-month suspension based on her thorough assessment of the record are not arbitrary, capricious or unreasonable. Nevertheless, the Commission makes the following comments. The ALJ’s determination to reduce the removal to a six-month suspension was predicated on her assessment as to the gravity of the misconduct as well as the appellant’s past record of only minor discipline. Along with its review of the charges, in determining the penalty, the Commission’s review is de novo. Upon its review, the Commission agrees that the upheld charges against the appellant merit a significantly penalty. It also agrees that based on the nature of the infractions, and the appellant’s history of only minor discipline, that removal is not warranted. Accordingly, the Commission agrees with the ALJ that a six-month suspension, the longest suspension permitted, should serve as sufficient warning to the appellant that any similar misconduct in the future may subject him to removal from employment.

Since the removal has been modified, the appellant is entitled to be reinstated with mitigated back pay, benefits, and seniority pursuant to N.J.A.C. 4A4:2-2.10 from six months after the first date of separation until the date of actual reinstatement. However, he is not entitled to counsel fees. N.dA.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 Plainfield, 282 N.J. 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 the penalty was 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.ef.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, Delores 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 back pay are finally resolved. In the interim, as the court states in Phillips, supra, if it has not already done so, upon receipt of this decision, the appointing authority shall immediately reinstate the appellant to his permanent position.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore modifies that action to a six-month suspension. The Commission further orders that the appellant be granted back pay, benefits, and seniority from six months after the first date of separation to the actual date of reinstatement. 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. Pursuant to N./.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. However, under no circumstances should the appellant’s reinstatement be delayed pending resolution of any potential back pay dispute.

Counsel fees are denied pursuant to N.JA.C. 4A4:2-2.12.

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 shall be pursued in the Superior Court of New Jersey, Appellate Division.