Dominic Caldwell, CSC Docket No. 2022-2222

BackgroundThe appeal of Dominic Caldwell, Electrician, South Woods State Prison, Department of Corrections, 10 working day suspension, on charges, was heard by Administrative Law Judge Tama B. Hughes (ALJ), who rendered her initial decision on November 15, 2023. Exceptions were filed on behalf of the appointing authority and a reply was filed on behalf of the appellant.

AnalysisHaving considered the record and the ALu’s initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions and reply filed by the parties, the Civil Service Commission (Commission), at its meeting on December 20, 2023, adopted the ALJ’s Findings of Fact and Conclusions and her recommendation to reverse the 10 working day suspension.

As mentioned above, the Commission has thoroughly reviewed the exceptions filed in this matter and finds them unpersuasive in all respects. The Commission makes the following comments. Among other things, the appointing authority argues that the ALJ improperly excluded a report from a witness who did not testify. The Commission rejects this contention. In this regard, the Commission, upon its de novo review, agrees with the ALJ’s assessment, that based on the evidence in the record, the appointing authority did not present sufficient witness testimony establishing that the report in question was a “business record,” and thus, it was not admissible as evidence in this matter. Further, even if the report was admitted as direct evidence, and assuming it was adverse to the appellant, it would likely not be persuasive in this matter. In this regard, the ALJ found both the appellant and an eyewitness credibly testified about the incident in question. Based on those findings, the ALJ determined that the underlying charges could not be sustained. The Commission notes that it is the appointing authority’s burden of proof, and it was not precluded from presenting the individual who authored the report, the other eyewitness to the incident, to directly testify Such testimony then could have been assessed for credibility and compared to the credibility of the appellant and the other eyewitness.

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.eJ. 644 (1999) (quoting State v. Locurto, 157 N.d. 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 her 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.

Since the 10 working day suspension has been reversed, the appellant is entitled to 10 working days of back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10. He is also entitled to reasonable counsel fees pursuant to N.J.A.C. 4A:2- 2.12.

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

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 10 working days of back pay, benefits, and seniority. The amount of back pay awarded is to be reduced as provided for in N.J.A.C. 4A:2-2.10(d)3. The Commission also orders reasonable counsel fees pursuant to N.J.A.C. 4A:2-2.12(a). 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(b), the parties shall make a good faith effort to resolve any dispute as to the amount of counsel fees.

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.