Carmine Santa, CSC Docket No. 2022-26

BackgroundThe appeal of Carmine Santa, Mechanic, Parsippany-Troy Hills, Department of Public Works, removal, effective June 7, 2021, on charges, was heard by Administrative Law Judge Ernest M. Bongiovanni (ALJ), who rendered his initial decision on March 6, 2024. No exceptions were filed.

AnalysisHaving considered the record and the attached Administrative Law Judge’s initial decisions, including the exceptions filed by the appointing authority to the original initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on April 10, 2024, accepted and adopted the Findings of Fact and Conclusions as contained in the Administrative Law Judge’s initial decisions and his recommendation to modify the removal to a six-month suspension.

The Commission makes only the following comments. As set forth in the Commission’s attached prior decision in In the Matter of Carmine Santa (CSC, decided October 11, 2023), the Commission indicated that the issue in real controversy in this matter was the penalty. Thus, the Commission remanded the matter to the ALJ to address the issue of the penalty and how the appointing authority disciplined other similarly situated individuals. On remand, the sole witness for the appointing authority was its personnel director who testified that there were no other similarly situated employees like the appellant who had been employed as a mechanic working at the shop who lost their commercial driver's license (CDL) for driving while intoxicated. Further, the witness addressed the three other employees who had lost their CDL but were accommodated and not disciplined, indicating that their circumstances had not been mischaracterized in the ALJ’s original initial decision. Thus, in its de nove review, the Commission agrees with the

ALJ’s assessment of the charges and the modification of the penalty to a six-month suspension.

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 months 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, 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. Depariment 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-month suspension.

The Commission orders that the appellant be granted back pay, benefits, and seniority from six months 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.d.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.d.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.eJ.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.