Pavel Butrim, CSC Docket No. 2021-1514

BackgroundThe appeal of Pavel Butrim, County Correctional Police Officer, Hudson County, Department of Corrections, 60 working day suspension on charges, was heard by Administrative Law Judge Ernest M. Bongiovanni (ALJ), who rendered his initial decision on July 6, 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 August 24, 2022, accepted and adopted the Findings of Fact and Conclusion as contained in the attached AL.J’s initial decision.

Since the 60 working day suspension has been modified to a 30 working day suspension, the appellant is entitled to 30 days of mitigated back pay, benefits and seniority pursuant to N.d.A.C. 4A:2-2.10. However, he is not entitled to counsel fees. N.J.A.C. 44:2-2.12(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.dJA.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, 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 and modifies the 60 working day suspension to a 30 working day suspension. 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 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.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 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 shall be pursued in the Superior Court of New Jersey, Appellate Division.