Mark Griffith, CSC Docket No. 2021-1717

BackgroundThe appeals of Mark Griffin, County Correctional Police Officer, Mercer County Correction Center, of his 10, 15 and 20 working day suspensions, on charges, were heard! by Administrative Law Judge William T. Cooper, III (ALJ), who rendered his initial decision on January 27, 2023. 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 March 15, 2023, adopted the ALJ’s Findings of Fact and Conclusions and his recommendation to uphold the 10 working day suspension, reverse the 15 working day suspension, and modify the 20 working day suspension to a 15 working day suspension.

The Commission makes the following comment. In his initial decision, the ALJ refers to the appointing authority’s penalty schedule. The Commission notes that it is not bound by the appointing authority's penalty schedule in determining the proper penalty. See In the Matter of Gregory McDaniel, Docket No. A-5583-02T2 (App. Div. May 24, 2004); In the Matter of Leonard Wilson (MSB, decided April 6, 2005); In the Matter of Patricia Everingham (MSB, decided March 13, 2003); In the Matter of George Roskilly (MSB, decided November 20, 2002). Nevertheless, in its de novo review of the penalties imposed, it agrees with the ALJ regarding the suspensions levied. These suspensions reflect the fact that the appellant has repeatedly violated the appointing authority’s policies and serve as sufficient warning to the appellant that any future infractions may lead to increasingly higher disciplinary penalties, including removal.

Administrative Law Judge1 The ALJ noted that these appeals were not consolidated, but rather, “heard together.”

AnalysisSince the 15 working day suspension has been reversed, the appellant is entitled to 15 working days of back pay, benefits, and seniority pursuant to N.d.A.C. 4A:2-2.10(d)3. He is also entitled to reasonable counsel fees for the reversed suspension pursuant to N.edJ.A.C, 44:2-2.12. The Commission notes, however, under no circumstances should counsel fees exceed 33% of the total counsel fees for all three matters.

Regarding the 20 working day suspension modified to a 15 working day suspension, the appellant is entitled to five working days of back pay, benefits, and seniority pursuant to N.dJ.A.C. 4A:2-2.10(d)3. However, the appellant is not entitled to counsel fees for this matter. N./.A.C. 4A:2-2.12(a), which 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). While 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.J.A.C. 4A:2-2.12, counsel fees must be denied for that matter.

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 counsel fees are finally resolved.

ORDER

10 Working Day Suspension

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was justified and affirms the 10 working day suspension.

15 Working Day Suspension

The Civil Service Commission finds that the action of the appointing authority in suspending the appellant was not justified and reverses that action. The Commission further orders that the appellant be granted 15 days of back pay, benefits, and seniority. The amount of back pay awarded is to be reduced and mitigated as provided for in N..-/.A.C. 4A4:2-2.10(d)3. Proof of income earned shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision.

The Commission also orders reasonable counsel fees pursuant to Nid.A.C. 4A:2-2.12(a). However, under no circumstances should counsel fees for this matter exceed 33% of the total counsel fees for all three matters.

Proof of income earned, and an affidavit 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.J.A.C. 4A:2-2.12, the parties shall make a good faith effort to resolve any dispute as to the amount of counsel fees.

20 Working Day Suspension

The Commission finds that the action of the appointing authority in suspending the appellant was justified and modifies the 20 working day suspension to a 15 working day suspension. The Commission further orders that the appellant be granted five days of back pay, benefits, and seniority.

The amount of back pay awarded is to be reduced and mitigated as provided for in N.d.A.C. 4A:2-2.10(d)3. Proof of income earned 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 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.