Salik Wilcher and Billy Grimsley, CSC Docket No. 2021-995, 2021-996

BackgroundThe appeals of Salik Wilcher and Billy Grimsley, Custodial Workers, Newark School District, removals, effective October 23, 2020, on charges were heard by Administrative Law Judge Susana E. Guerrero (ALJ), who rendered her initial decision on April 12, 2022. Exceptions and a reply were filed on behalf of the appellant and exceptions were filed on behalf of the appointing authority.

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 June 15, 2022, accepted and adopted the Findings of Fact and Conclusion as contained in the attached ALJ’s initial decision to modify the removals to 45 working day suspensions.

DISCUSSION

The Commission has thoroughly reviewed the exceptions and reply and finds them unpersuasive and mostly unworthy of comment as the ALJ’s findings and conclusions in dismissing some charges, upholding others and modifying the removals to 45 working day suspension based on her thorough assessment of the record are not arbitrary, capricious or unreasonable. The Commission makes only the following comments. In their exceptions, the appellants argue that they are entitled to counsel fees. In this regard, they argue that both N.J.A.C. 4A:2-2.12 and In the Matter of L.S., Middle Township, Board of Education, Docket No. A-0139-20 (App. Div. March 7, 2022) support the award of counsel fees in this matter. The

Commission disagrees.

For many decades, in nearly all cases where a disciplinary removal has been modified to anything more significant than a suspension or fine greater than a minor discipline (defined as anything less than a six working day suspension per N.d.A.C. 4A:2-3.1), the Commission has denied counsel fees pursuant to N.J.A.C. 4A:2-2.12.1 In this regard, 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). This standard, interpretation and application of N.J.A.C. 4A:2-2.12 was, in fact, affirmed by the Appellate Division in L.S., supra.2, However, while L.S., supra, seems to suggest that an appellant can get a “second bite” at the counsel fees apple by utilizing N.J.A.C, 4A:2-1.5 in a disciplinary appeal, the Commission disagrees.? While that rule pertains to remedies, including counsel fees, it is interpreted by the Commission to only pertain to such remedies for matters that do not arise from a disciplinary appeal. This is a reasonable interpretation of this regulation, as remedies for disciplinary matters are subject to specific rules, such as N.J.A.C. 4A:2-2.10 (back pay) and N.Jd.A.C. 4A:2-2.12.4 Accordingly, it is the Commission’s position that an appellant can only obtain an award of counsel fees for a disciplinary matter via NJAC. 4A:2-2.12. Even assuming, arguendo, that an appellant could utilize N.J.A.C, 4A:2-1.5 in a disciplinary appeal, the Commission cannot fathom where the standard in that rule could be met, where it was otherwise not met in N.J.A.C. 4A:2- 2.12. For example, N.-/.A.C. 4A:2-1.5 states that remedies, such as counsel fees can be granted “where the Commission finds sufficient cause” such as where the appellant “demonstrates that the appointing authority took adverse action against an employee in bad faith or with invidious motivation.” In a disciplinary matter, where an appellant is completely exonerated by the Commission, one reason could be that the

1 In past cases where a removal has been modified to a minor disciplinary action, the Commission has awarded partial counsel fees pursuant to N.J.A.C. 4A:2-2.12 where an appellant has prevailed on the most serious charge leaving only incidental charges, which give rise to a significantly reduced penalty, such as a minor discipline. See Thomas Grill and James Walsh v. City of Newark, Docket No. A-6224-98T3 (App. Div., January 30, 2001); In the Matier of Diane Murphy (MSB, decided June 8, 1999); In the Matter of Joanne Chase (MSB, decided June 24, 1997); In the Matter of James Haldeman (MSB, decided September 7, 1994); In the Matter of Donald Fritze (MSB, decided January 26, 1993).

2 Itis also noted that L.S., supra, has been stayed by the Appellate Division as L.S. has filed a petition for certification with the New Jersey Supreme Court.

3 In Z.S., supra, the Court indicated that the appellant in that matter was properly denied counsel fees under N.f.A.C. 4A:2-2.12.

4 Moreover, N.J.A.C. 4A:2-1.5 is contained in subchapter 1 of Chapter 2 of title 4A. That subchapter is titled “Appeals” and provides for the general rules regarding all forms of appeals to the Commission. Conversely, subchapter 2 of Chapter 2 is titled “Major Discipline” and outlines the specific rules to be utilized in such appeals, including the remedies available.

“adverse action” was in “bad faith or with invidious motivation.” Even where a disciplinary matter is reduced by the Commission from the ultimate disciplinary penalty of removal to what is considered a minor discipline, the above standard could be argued. However, in both examples, those appellants are entitled to full counsel fees in the first instance and would likely be awarded partial counsel fees by the Commission pursuant to N.J.A.C. 4A:2-2.12 in the second instance. However, the Commission would not find, as here, where a disciplinary removal is modified to a major disciplinary action, that the action taken was in bad faith or with invidious motivation sufficient to award any counsel fees under N.J.A.C. 4A:2-1.5. Logically, to make such a showing, an appellant would have to demonstrate that the discipline should have never been pursued, was otherwise invalid, or was a_ gross overestimation of the severity of the misconduct leading to a significantly overinflated penalty imposed originally by the appointing authority. If any of those conditions are true, the appellant would already be entitled to an award of counsel fees under N.J.A.C. 4A:2-2.12 since he or she would have had the action reversed, or modified to such an extent to warrant partial counsel fees. In other words, the Commission is stating that, even if N.J.A.C. 4A:2-1.5 were available in a disciplinary appeal, there would be no circumstance where counsel fees could be awarded outside of the standards already outlined in N.J.A.C, 4A:2-2.12. As such, in the case at hand, while the penalty was modified by the Commission, charges were sustained, and major discipline was imposed. Consequently, as the appellants have failed to meet the standard set forth at N.J.A.C. 4A:2-2.12, counsel fees must be denied.

Since the removal has been modified, the appellants are entitled to be reinstated with mitigated back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10 from 45 working days after the first date of separation until the date of actual reinstatement.

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 appellants to their permanent positions.

5 Of course, in such a circumstance, even if the adverse action was not taken in bad faith or with invidious motivation, the appellant would be entitled to counsel fees pursuant to N./.A.C. 4A:2-2.12. In other words, if an appointing authority does not sustain its burden of proof in proving the charges in a disciplinary matter, no matter the reason for its failure to do so, the successful appellant would be entitled to counsel fees under N.J.A.C. 4A:2-2.12. For example, even in an otherwise meritorious disciplinary matter, charges may not be sustained, and a removal may be reversed since evidence is no longer available, witnesses are unavailable, or for myriad other reasons, none of which would constitute the appointing authority taking the adverse action originally in bad faith or with invidious motivation. Nevertheless, those appellants are still awarded counsel fees under N.d. A.C. 4A:2-2.12, where they would not be under N.-/.A.C. 4A:2-1.5.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellants was not justified. The Commission therefore modifies those actions to 45 working day suspension. The Commission further orders that the appellants be granted back pay, benefits, and seniority from 45 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 appellants 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 appellants’ 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.