Frank James, CSC Docket No. 2021-1348

BackgroundThe appeal of Frank James, a County Correctional Police Officer with Essex County, Department of Corrections, of his removal effective March 9, 2020, on charges, was before Administrative Law Judge Barry E. Moscowitz (ALJ), who rendered his initial decision on remand on April 25, 2022. No exceptions were filed.

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 June 15, 2022, accepted and adopted the Findings of Fact and Conclusion as contained in the attached ALJ’s initial decision.

DISCUSSION

The appointing authority removed the appellant on charges of incompetency, inefficiency or failure to perform duties; conduct unbecoming a public employee; neglect of duty; and other sufficient cause. Specifically, it asserted that on January 27, 2020, the appellant entered an unauthorized area and gave contraband, a USB drive containing movies, to an inmate after having initially taken the contraband from the inmate on January 22, 2020. It was also asserted that prior to January 27, 2020, the appellant had failed to do inmate counts; falsified observation reports; fraternized with inmates; failed to properly secure doors; failed to properly supervise meal service; and abandoned his post. Upon the appellant’s appeal, the matter was transmitted to the Office of Administrative Law (OAL) for a hearing as a contested case,

Administrative Law JudgeIn his original February 15, 2022, initial decision, the ALJ recommended dismissing the charges and reversing the removal. Exceptions to that initial decision were filed on behalf of the appointing authority and a reply to exceptions was filed on behalf of the appellant. In its March 23, 2022, decision remanding the matter back to the OAL, the Commission found that the exceptions filed on behalf of the appointing authority cited to testimony which appeared to be completely contrary to what the ALJ summarized in his initial decision. As such, the Commission returned the matter to the ALJ to expand on his recitation of the testimony in light of the contrary positions presented in the exceptions and further expand on, modify, or change his credibility determinations.

In his April 25, 2022, initial decision, the ALJ painstakingly addressed and reconciled each concern regarding the testimony that was in purported conflict and provided reasonable explanations regarding each. As such, he again found that the charges against the appellant were not sustained and he recommended that the removal be reversed. Upon its de novo review of the entire record, including the original and subsequent initial] decision, the Commission is satisfied that the ALJ’s findings and conclusions based on his assessment of the credible testimony in the record are not arbitrary, capricious or unreasonable. Accordingly, the Commission finds that the reversal of the removal is supported by the credible evidence in the record.

AnalysisSince the removal has been reversed, the appellant is entitled to be reinstated with mitigated back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10. The appellant 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, 2008), the Commission's decision will not become final until any outstanding issues concerning back pay or counsel fees 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 reverses that action and grants the appeal of Frank James. The Commission further orders that the appellant be granted back pay, benefits, and seniority from 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./.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. The Commission further orders that counsel fees be awarded to the attorney for the appellant pursuant to N.J.A.C. 4A:2-2.12. An affidavit of services 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.edJ.A.C. 4A:2-2.10 and N.J.A.C. 4A:2-2.12, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay or counsel fees. However, under no circumstances should the appellant’s reinstatement be delayed pending resolution of any potential back pay or counsel fee dispute.

The parties must inform the Commission, in writing, if there is any dispute as to back pay or 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.