Glenn Nolen, CSC Docket No. 2021-488

BackgroundThe appeal of Glenn Nolen, Laborer 1, Roselle, Department of Public Works, of his removal, effective October 21, 2020, on charges, was heard by Administrative Law Judge Barry E. Moscowitz (ALJ), who rendered his initial decision on April 7, 2022. Exceptions and a reply 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 May 18, 2022, accepted and adopted the Findings of Fact and Conclusion as contained in the attached ALJ’s initial decision. However, it did not adopt his recommendation to modify the removal to a three working day suspension.! Rather, the Commission imposed a six working day suspension.

DISCUSSION

The Commission makes the following comments regarding the exceptions. The thrust of the appointing authority’s exceptions is that the ALJ either ignored or mischaracterized the testimony of one witness, and thus, his conclusions therefrom were in error. The Commission disagrees. The ALJ’s initial decision was predominately based on his assessment of the credibility of the witnesses. In this regard, upon its de novo review of the record, the Commission acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). “[T]rial courts’ credibility findings .. . are often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record.” See also, In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 NJ. 463, 474 (1999)). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Id. at 659 (citing Locurto, supra). The Commission appropriately gives due deference to such determinations. However, in its de novo review of the record, the Commission has the authority to reverse or modify an ALJ’s decision if it is not supported by sufficient credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B-10(c); Cavalieri u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). In this matter, the exceptions filed by the appointing authority are not persuasive in demonstrating that the ALJ’s credibility determinations, or his findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. As such, the Commission has no reason to question those determinations or the findings and conclusions made therefrom.

Administrative Law Judge1 In this regard, in the body of his decision, the ALJ indicates the reduction in penalty should be to a two working day suspension, but in the Order, he indicates a three working day suspension. Regardless, in this decision, the Commission is determining that the appropriate penalty is a six working day suspension.

AnalysisRegarding the penalty, the Commission’s review is also de novo. In this regard, while the Commission agrees that the upheld charges against the appellant merit a significantly reduced penalty, it does not agree that the proper penalty is a minor discipline. Rather, it believes the sustained misconduct is worthy of a major discipline. See N.Jj.A.C. 4A:2-2.2(a). Accordingly, the Commission imposes a six working day suspension, which should be sufficient warning to the appellant that any similar misconduct in the future may subject him to more severe penalties, including 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. 4A:2-2.10 from six working days after the first date of separation until the date of actual reinstatement. However, he is not entitled to counsel fees. N.J.A.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.J.A.C. 4A:2-2.12, counsel fees must be denied.2

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. 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 working day suspension. The Commission further orders that the appellant be granted back pay, benefits, and seniority from six working days 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.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. 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.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.

2 It is noted that the record in this matter shows that the appellant represented himself, pro se, during this entire matter while at the Office of Administrative Law. It was only after the ALJJ’s initial decision was rendered, and the appointing authority filed exceptions, did the appellant retain counsel, who filed a reply to the appointing authority’s exceptions. As such, even if the appellant was entitled to counsel fees, it would have only been for his attorney’s work on that reply.