Douglas Burkholder South Woods State Prison, CSC Docket No. 2021-879

BackgroundThe appeal of Douglas Burkholder, Senior Correctional Police Officer, South Woods State Prison, Department of Corrections, removal effective December 11, 2020, on charges, was heard by Administrative Law Judge Kathleen M. Calemmo, who rendered her initial decision on May 25, 2021. 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 Administrative Law Judge's initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions and replies, the Civil Service Commission (Commission), at its meeting on June 30, 2021, accepted and adopted the Findings of Fact and Conclusion as contained in the attached Administrative Law Judge's initial decision, including her order that the appellant undergo training and a psychological evaluation prior to his return to work.

As the removal has been modified, the appellant is entitled to mitigated back pay, benefits and seniority pursuant to N./.A.C. 4A:2-2.10 from the date six months after his initial separation from employment until the date of actual reinstatement. 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, the 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.

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 However, in light of the Appellate Division’s decision, Dolores Phillips v. Department of Corrections, unpublished, Docket No. A-5581-01T2F (App.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. However, under no circumstances shall the appellant’s reinstatement be delayed pending any back pay dispute.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore modified the removal to a six-month suspension. The Commission further orders that the appellant undergo diversity training and a psychological examination prior to his return to work. Should he be found unfit for duty based on the results of that examination, new disciplinary charges should be filed at that time.

Pursuant to N.J.A.C. 4A:2-2.10, the appellant is entitled to mitigated back pay from the date six months after his initial separation from employment until the date of actual reinstatement or subsequent removal based on the results of the psychological examination. 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.

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 GO 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. Under no circumstances shall the appellant’s reinstatement be delayed pending any back pay dispute