Christopher Ferro, CSC Docket No. 2022-3298

BackgroundThe Superior Court of New Jersey, Appellate Division, in In the Matter of Christopher Ferro, Docket No. A-003160-21T1 (App. Div., October 11, 2022), remanded In the Matter of Christopher Ferro (CSC, decided May 18, 2022) to address Ferro’s request for reconsideration. The Civil Service Commission (Commission) is also addressing the Bergen County Sheriff’s Office (BCSO) request for stay in this matter. These matters have been consolidated due to common issues presented.

By way of background, Ferro, a County Correctional Police Officer, on or around November 7, 2018, was subject to a random drug test. On December 28, 2018, the State Laboratory’s (State Lab) Toxicology Report indicated that Ferro’s urine tested positive for 11-Carboxy-THC, a controlled substance. The Toxicology Report contained a note indicating that Ferro claimed to have used CBD oil, but such use “should not be expected to produce a positive result for THC.” Ferro was afforded the opportunity to have the second urine test independently, but he did not accept that opportunity. Ferro’s THC level was found to be 18.9 ng/ml and the cutoff for THC is 15.0 ng/ml. Ferro was removed, and he appealed to the Commission, which transmitted the matter to the Office of Administrative Law (OAL). At the time of the initial toxicology screening, the State Lab did not have the capability to test for CBD and CBD metabolite, and only after Ferro’s appeal was transmitted to the OAL did the State Lab possess such technology. On or about February 17, 2020, the State Lab tested Ferro’s urine specimen for CBD and CBD metabolite, and CBD was not detected above the cutoff level of 5.0 ng/ml, which corroborated the initial report that the purported use of CBD “should not be expected to produce a positive result for THC.” The Administrative Law Judge (ALJ) found that Ferro did not use CBD. However, the ALJ concluded that the initial test, which rendered THC above the cutoff, and the CBD test, which indicated THC under the cutoff, presented equivocal evidence. Therefore, the ALJ found that the BCSO did not meet its burden of proof. On July 21, 2021, the Commission issued a decision remanding the matter back to the ALJ, and the ALJ again concluded that the BCSO did not meet its burden of proof. On October 27, 2021, two Commission members voted for Ferro’s removal and two members voted to adopt the ALJ’s decision. Therefore, since there was a tie, the ALJ’s recommended decision was deemed adopted as the Commission’s final decision. See N.J.S.A. 52:14B-10(c). On November 9, 2021, this agency informed the parties of the Commission’s decision. Ferro was reinstated and returned to BCSO’s payroll, effective December 1, 2021. On December 5, 2021, the BCSO filed an appeal of the Commission’s decision with the Superior Court of New Jersey, Appellate Division. Thereafter, the BCSO filed a request to stay the Commission’s decision awarding back pay and counsel fees pending its appeal to the Appellate Division. On January 19, 2022, the Commission denied BCSO’s request. In response, BCSO filed a request asking the Commission to determine the back pay and counsel fees that Ferro was entitled to as it disputed the amount claimed by Ferro, which was decided on May 18, 2022. Thereafter, Ferro requested reconsideration of that decision to the Commission and requested that the Appellate Division remand the matter to the Commission for its consideration of that request. On October 11, 2022, the court remanded that matter to the Commission and retained jurisdiction.

In the Commission’s May 18, 2022, decision, it noted that the record indicated that Ferro was separated without pay starting January 7, 2019, until the Commission’s October 27, 2021 meeting, when the ALJ’s initial decision recommending reversing the removal was deemed adopted. Further, the record indicated that Ferro was reinstated on December 1, 2021. As such, the Commission found that the applicable period for back pay that was subject to mitigation was January 7, 2019 until October 26, 2021, while the period from October 27, 2021 until November 30, 2021 was not subject to mitigation. See N.J.A.C. 4A:2-2.10(d).

Regarding Ferro’s back pay, in 2019, the Commission found that Ferro was entitled to gross back pay for whatever portion of $120,158.61, which was his undisputed pay during the applicable period, that was earned during the time he started working for Uber in 2019 until the time he stopped working for Uber in 2019 less the $2,947.31 he earned from Uber, less whatever portion of the $600 he earned from FantasyPros and the $9,048 in unemployment benefits that was received during this time. Concerning Ferro’s request for back pay in 2020 and 2021, the Commission found that Ferro failed to make reasonable efforts to mitigate his back pay award in 2020 and between January 1, 2021, through October 26, 2021, and he was not entitled to back pay during this time. See In the Matter of Ryan Marsh (CSC, decided February 17, 2021). However, under N.J.A.C. 4A:2-2.10(d)5, the Commission found that Ferro had no duty to mitigate once the ALJ’s recommendation to reverse the removal was deemed adopted. Therefore, the Commission found that Ferro was entitled to back pay for whatever portion of his $126,977.687 salary was earned from October 27, 2021, to November 30, 2021, less whatever portion of the $600 he earned from FantasyPros and the $36,325 in unemployment benefits that was received during this time. The Commission also awarded Ferro $33,891 for attorney’s fees and $1,800 in expenses.

Appellant's argumentIn its request for a stay, the BCSO, represented by Brian M. Hak, Esq., presents that on June 15, 2022, it filed an appeal from the Commission’s decision to the Appellate Division. The BCSO argues that it has a clear likelihood of success on the merits as, under the Attorney General’s Drug Policy (Drug Policy), it was required to terminate a law enforcement officer who tested positive for an illegal drug. It reiterates its previous arguments as to why the drug test should be considered valid. The BCSO highlights that two of the four Commission members voted for Ferro’s removal, which it asserts favors the Appellate Division weighing in on this matter before it is required to pay back pay and counsel fees.

Even if the removal is upheld at the Appellate Division, the BCSO argues that the Commission erred in determining the back pay award. It argues that the start of the back pay award should not be January 7, 2019, the date of Ferro’s removal, but February 17, 2020, which is the date of the second “CBD” test, which indicated a level of THC that was below the cutoff at the time that it was performed, as this is consistent with the ALJ’ finding that if the initial testing in November 2018 was the only evidence in this case, this would have been enough to support the BCSO’s case for removal. Additionally, the BCSO provides that Ferro admitted that he declined an offer from United Parcel Service (UPS) because he claimed that he was making more money from Uber. However, he never identified how much UPS would have paid. Therefore, it argues that the Commission, at minimum, should have required Ferro to submit this information, but it did not. Further, it argues that the UPS income should have been imputed to him. The BCSO also contends that it is implausible that he would have made more money from Uber than UPS as he only earned $3,974.18 from Uber in five months. It also argues that the Commission erred by not requiring Ferro to provide his 2019 federal and State tax returns as there is no other way to determine Ferro’s true income and uncertified statements from Uber are insufficient. Moreover, the BCSO argues that Ferro’s back pay award must be offset by the childcare savings he received by choosing to care for children as he should not be unjustly enriched. It notes that childcare can be at least $1,100 per month per child, which for two children can be upwards of $26,400 per year. Also, the BCSO presents that in 2019, his gross income during the five months he worked for Uber was $3,974.18 as he only worked in July ($493.47), August ($8.40), October ($571.14), November ($1,088.17), and December ($1,812.75). Therefore, it asserts that Ferro should not be given mitigation credit in August 2019 where he barely worked and earned less than $10. The BCSO believes that it would be immediately and irreparably harmed if it was required to pay Ferro back pay now as it is very unlikely that it would get this money back if it were to win its appeal. It notes that after its appeal, if Ferro wins on all issues, he will receive back pay at that time. Therefore, since Ferro has been reinstated, it believes that a stay is appropriate to maintain the status quo. It argues that it is in the public interest to grant the stay since Ferro’s termination was required under the Drug Policy and public law enforcement agencies should not be exposed to liability when it follows mandates.

In response, Ferro, represented by David J. Altieri, Esq., asserts that the BCSO previously requested a stay, which the Commission denied, and this request is essentially the same argument. He attaches his argument that he submitted for the previous stay request. Ferro indicates that the BCSO was ordered to pay $33,891 in counsel fees and $1,800 in expenses within 30 days of the Commission’s decision that was issued on May 23, 2022, but it has failed to do so. Additionally, he presents that the Commission ordered the BCSO to submit payment of back pay within 30 days of the receipt of certain documentation, which he provided on June 3, 2022, but it failed to do so. Therefore, Ferro requests that the BCSO be ordered to comply with the Commission’s May 18, 2022 decision.

Ferro also requests reconsideration of the Commission’s May 18, 2022, decision. He presents new evidence regarding his employment with Uber, which he states would have changed the outcome of the Commission’s decision regarding his mitigation efforts, if presented at the original proceeding. Ferro explains that this information was not presented at the original proceeding as the information was not in his possession at the time. He submits documentation that shows during his employment with Uber, he completed 24 trips in July 2019, 1 trip in August 2019, 34 trips in October 2019, 63 trips in November 2019, 108 trips in December 2019, 117 completed trips in January 2020 for a gross income of $1,864.65, 72 trips in February 2020 for a gross income of $1,242.40, 38 completed trips in March 2020 for a gross income of $675.19, nine completed trips in December 2020 for a gross income of $63.71, and two completed trips in January 2021 for a gross income of $15.91. Ferro argues that the Commission erred when it did not properly account for the impact of the pandemic. He indicates that he stopped driving for Uber because it was unsafe, the pandemic limited, if not eviscerated employment opportunities, and the pandemic necessitated his role as a stay-at-home father as schools and daycares closed, only to switch to remote instruction. Ferro believes that the Commission did not account for his job skill limitation given his longevity in the field of law enforcement and did not give adequate weight in considering the months that he spent writing fantasy sports articles for FantasyPros. He maintains that the jobs that the Commission indicated that were available ”Amazon, supermarkets, restaurants offering take-out and delivery, work at-home jobs, physical labor and/or other employment” in its decision were not available to him because no one would have been left to care for his two young children. Ferro emphasizes that his unlawful termination put his family in an impossible situation as he had no choice to care for his children because his family would not have been able to afford childcare if he took one of the jobs that the Commission suggested. He states he could not perform a work-at-home job because it still would not have allowed him to care for his children and he also has a limited skill set. Ferro contends that the Commission’s decision creates an alarming precedent with respect to the status of stay-at-home parents.

In reply, the BCSO asserts that Ferro does not meet the standards for reconsideration. It presents that Ferro claims to have suddenly found additional income information regarding his employment with Uber. However, the BCSO provides that Ferro certified and swore under oath that he only worked for Uber in 2019. Further, it indicates that after the Commission’s May 18, 2022, decision, Ferro only provided information that indicated that he worked in July, August, October, November and December 2019 which is consistent with his original sworn Affidavit of Mitigation. The BCSO states that Ferro is now submitting information to show that he worked for Uber in January, February, March, and December 2020, and in January 2021. However, it emphasizes that Ferro has not provided any justifiable reasons why this information was not submitted at the original proceeding as required under the reconsideration standards. The BCSO argues that it is not credible that his employment information with Uber was not available at the time of the original proceeding. It also contends that this “new” information does not meet the standard for reconsideration as it does not change the outcome of the case. The BCSO presents that Ferro purportedly grossed $63.71 with Uber in December 2020 and $15.91 in January 2021, which only further demonstrates that he did little to mitigate his damages. It argues that Ferro has not met the second standard for reconsideration by claiming that the Commission erred as he rehashes the same arguments regarding the purported limited job opportunities during the pandemic, his allegedly limited skill set, and his determination to be a stay-at-home parent were all extensively argued and considered by the Commission.

The BCSO claims that Ferro’s motion supports its request for a stay as there are inconsistencies between the information that Ferro presented in his sworn Affidavit of Mitigation, the information he provided after the Commission’s May 18, 2022, decision, and the current matter. It argues that these inconsistencies, coupled with his refusal to provide his tax returns, place his potential income subject to mitigation in doubt, which indicates that it is only appropriate to stay the BCSO’s obligation to pay back pay until the issues can be resolved by the Appellate Division.

In further response, Ferro presents that in the ALJ’s May 21, 2021 initial decision, the ALJ ordered that charges be dismissed, and his termination be reversed and back pay, benefits, and seniority be restored pending the Commission’s final decision. In the interim, the ALJ ordered the BCSO to begin paying Ferro immediately, including providing medical benefits, pending the Commission’s final decision. Therefore, Ferro argues that the Commission should not have deemed his reinstatement date December 1, 20211, as the date from which back pay and mitigation should have been considered, but rather May 21, 2021, when the ALJ’s order was entered and ignored by the BCSO. He claims that he expected to receive his salary and back pay after the ALJ’s order, and, therefore, he had no reason to continue to mitigate any back pay award at that point. Ferro states that BCSO has received a benefit by ignoring a court order.

BackgroundFerro certifies that he did not attach his 2020 and 2021 records from his employment at Uber during the period he was suspended because he was unaware of their existence. He explains that when he retrieved tax records, Uber only provided records for 2019 and, thus, it appeared that Uber would not provide additional information. Additionally, Ferro attaches his documentation for the work he did as a writer for FantasyPros. He states that these records were only made available this month. Ferro presents that the documentation shows that out of 132 writers, he was the 14th most productive, producing 867 news items. He believes that the Commission did not gave his work with FantasyPros adequate consideration regarding his mitigation efforts. Ferro indicates that in his Affidavit of Mitigation, he provided medical records showing that he had been hospitalized twice in 2019 and the Commission’s decision did not appear to account for his hospitalization and recovery where he was unable to work. He believes that the Commission did consider that he could no longer drive for Uber once the pandemic hit in March 2020, since he had two very young children at home, including a daughter who was less than two months old, and he could not risk bringing COVID-19 home from driving Uber passengers potentially causing catastrophic health issues in his family.

CONCLUSION

RuleN.J.A.C. 4A:2-1.6(b) provides that a petition for reconsideration shall be in writing signed by the petitioner or his or her representative and must show the following:

1. The new evidence or additional information not presented at the original proceeding, which would change the outcome and the reasons that such evidence was not presented at the original proceeding; or

Analysis2. That a clear material error has occurred.

Pursuant to N.J.A.C. 4A:2-1.2(c), the standards to be considered regarding a petition for a stay are:

1 It is noted that the Commission’s May 18, 2022, decision indicates that Ferro had no duty to mitigate starting October 27, 2021, the date the Commission adopted the ALJ’s initial decision, and not December 1, 2021, as Ferro suggests.

1. Clear likelihood of success on the merits by the petitioner;

2. Danger of immediate or irreparable harm if the request is not granted;

3. Absence of substantial injury to other parties if the request is granted;

and

4. The public interest.

RuleN.J.A.C. 4A:2-1.2(f) provides that following a final administrative decision by the Commission, and upon the filing of an appeal from that decision to the Appellate Division, a party to the appeal may petition the Commission for a stay or other relief pending a decision by the Court.

N.J.A.C. 4A:2-1.1(d) provides that except where a hearing is required by law, this chapter of N.J.A.C. 4A:8, or where the Commission finds that a material and controlling dispute of fact exists that can only be resolved by a hearing, an appeal will be reviewed on a written record.

N.J.A.C. 4A:2-2.10(a) provides that where a disciplinary penalty has been reversed, the Commission shall award back pay, benefits, seniority or restitution of a fine. Such items may be awarded when a disciplinary penalty is modified.

N.J.A.C. 4A:2-2.10(d) provides that back pay shall include unpaid salary, including regular wages, overlap shift time, increments and across-the-board adjustments. Benefits shall include vacation and sick leave credits and additional amounts expended by the employee to maintain his or her health insurance coverage during the period of improper suspension or removal.

Analysis1. Back pay shall not include items such as overtime pay, holiday premium pay and retroactive clothing, uniform or equipment allowances for periods in which the employee was not working.

2. The award of back pay shall be reduced by the amount of taxes, social security payments, dues, pension payments, and any other sums normally withheld.

3. Where a removal or suspension has been reversed or modified, an indefinite suspension pending the disposition of criminal charges has been reversed, the award of back pay shall be reduced by the amount of money that was actually earned during the period of separation, including any unemployment insurance benefits received, subject to any applicable limitations set forth in (d)4 below.

4. Where a removal or a suspension for more than 30 working days has been reversed or modified or an indefinite suspension pending the disposition of criminal charges has been reversed, and the employee has been unemployed or underemployed for all or a part of the period of separation, and the employee has failed to make reasonable efforts to find suitable employment during the period of separation, the employee shall not be eligible for back pay for any period during which the employee failed to make such reasonable efforts.

i. "Underemployed" shall mean employment during a period of separation from the employee's public employment that does not constitute suitable employment.

ii. "Reasonable efforts" may include, but not be limited to, reviewing classified advertisements in newspapers or trade publications;

reviewing Internet or on-line job listings or services; applying for suitable positions; attending job fairs; visiting employment agencies;

networking with other people; and distributing resumes.

iii. "Suitable employment" or "suitable position" shall mean employment that is comparable to the employee's permanent career service position with respect to job duties, responsibilities, functions, location, and salary.

iv. The determination as to whether the employee has made reasonable efforts to find suitable employment shall be based upon the totality of the circumstances, including, but not limited to, the nature of the disciplinary action taken against the employee; the nature of the employee's public employment; the employee's skills, education, and experience; the job market; the existence of advertised, suitable employment opportunities; the manner in which the type of employment involved is commonly sought; and any other circumstances deemed relevant based upon the particular facts of the matter.

v. The burden of proof shall be on the employer to establish that the employee has not made reasonable efforts to find suitable employment.

5. An employee shall not be required to mitigate back pay for any period between the issue date of a Commission decision reversing or modifying a removal or reversing an indefinite suspension and the date of actual reinstatement. The award of back pay for this time period shall be reduced only by the amount of money that was actually earned during that period, including any unemployment insurance benefits received.

RuleN.J.A.C. 4A:2-2.10(e) provides that unless otherwise ordered, an award of back pay, benefits and seniority shall be calculated from the effective date of the appointing authority's improper action to the date of the employee's actual reinstatement to the payroll.

N.J.A.C. 4A:2-2.10(g) provides that if settlement on an amount cannot be reach, either party may request, in writing, Commission review of the outstanding issue. In a Commission review:

1. The appointing authority shall submit information on the salary the employee was earning at the time of the adverse action, plus increments and across-the-board adjustments that the employee would have received during the separation period; and

Analysis2. The employee shall submit an affidavit setting forth all income received during the separation.

In this matter, the record indicates that Ferro has not met the standard for reconsideration. In the original proceeding regarding back pay, Ferro indicated that he worked for Uber in 2019. Ferro is now claiming that he also mitigated his back pay by working for Uber in 2020 and 2021 and he provides documentation to support this claim. He asserts that he did not submit this information at the original proceeding because it was unavailable. However, it is unclear why such information would not have been available at that time. Regardless, Ferro’s argument is unpersuasive as the knowledge that he worked for Uber was available to him at all times. At minimum, Ferro should have indicated that he worked for Uber in 2020 and 2021, but was having an issue obtaining the information regarding his work. If he is claiming the he forgot, that is not a justifiable reason. Therefore, his evidence regarding his work for Uber in 2020 and 2021 does not meet the standard for reconsideration under N.J.A.C. 4A:2-1.6(b)1, as he has not provided a valid reason why such evidence was not presented at the original proceeding. It is also noted that even if was included, his nine trips for Uber in December 2020 for a total of $63.71, and his two trips in January 2021 for a total of $15.90, would not have changed the outcome for those months as they do not indicate that he made a suitable effort to mitigate his back pay as required under N.J.A.C. 4A:2-2.10(d)4iv.

Ferro is also claiming that the Commission erred by not providing more weight to his mitigation efforts based on his work as a writer for FantasyPros. He submits documentation to show that he was the 14th most productive writer out of 132 writers, producing 867 new items. However, the Commission finds that it did not commit error by not crediting him with sufficient mitigation based on his FantasyPros writing. In the original proceeding, the record simply indicated that he earned $600 for this work. He did not present when he earned this money and other details as to why this work should be considered a “suitable position” as required under N.J.A.C. 4A:2-2.10(d)4iii. As such, he has not persuasively argued as to why more details about this work were not provided in the original proceeding and this new evidence does not meet the standard for reconsideration under N.J.A.C. 4A:2-1.6(b). Moreover, even considering this new evidence, there is no basis to find that his employment in this position would be considered a suitable effort for mitigation. N.J.A.C. 4A:2- 2.10(d)4iv provides that the determination as to whether the employee has made reasonable efforts to find suitable employment shall be based upon the totality of the circumstances, including, but not limited to, the nature of the disciplinary action taken against the employee; the nature of the employee's public employment; the employee's skills, education, and experience; the job market; the existence of advertised, suitable employment opportunities; the manner in which the type of employment involved is commonly sought; and any other circumstances deemed relevant based upon the particular facts of the matter. Ferro has presented nothing in his background, either at the original proceeding or now upon reconsideration, that he, as a County Correctional Police Officer, could have reasonably expected to make a suitable mitigation effort by pursuing writing about fantasy sports. To the contrary, the fact that Ferro was so prolific, producing 867 new items and being the 14 th most productive out of 132 writers while only making only $600 over some unknown time, only demonstrates that pursuing this instead of other potential employment opportunities was not a “suitable effort” under the totality of the circumstances. While there are no actual minimum earnings that one is required to earn, or even an absolute requirement that one must be employed, to demonstrate a “suitable effort,” when there was no reasonable expectation based on the “totality of the circumstances” that this effort could have led to anything more than a trivial mitigation of the back pay award, such an effort cannot be found to be “suitable” for the purposes of fulling one’s obligation to mitigate a back pay award.

Ferro argues that the Commission committed error as it did not consider that in his Affidavit of Mitigation, he provided medical records showing that he had been hospitalized twice in 2019 and did not account for his time in the hospital and recovery. However, the Commission did not commit error as Ferro is not entitled to any back pay award during such a period as N.J.A.C. 4A:2-2.10(d)9 provides that a back pay award is subject to reduction for any period of time during which the employee was disabled from working.

Additionally, Ferro rehashes his arguments from the original proceeding that he could not continue working for Uber since it was unsafe for himself and his family due to COVID-19, he could not work because he had to care for his two young children while they were home during the pandemic, and he could not afford childcare if he worked during the pandemic. The Commission already denied such claims previously and finds no reason here to alter those determinations. Regarding Ferro’s comment that the Commission’s decision “creates an alarming precedent with respect to the status of stay-at-home parents,” the Commission, while sympathetic to such claims, is unpersuaded in his case.2 If Ferro had argued that he could not work during the school day because of childcare concerns, but had presented “suitable efforts” regarding his attempts to seek employment at nights and/or the weekends, other than certain times during 2019, it is possible that the Commission could have found that his met his obligation under the “totality of the circumstances.” As referenced above and noted in a footnote in the original proceeding, Ferro was not even required to secure employment to establish mitigation, but only to seek employment. However, as Ferro acknowledges that he was not seeking employment, he clearly did not satisfy this requirement during 2020 and 2021. Moreover, if Ferro is arguing that he could not seek employment from March 2020 through the time he was no longer required to mitigate because employment was unsafe and a risk to his family due to COVID- 19, it is noted that as a County Correctional Police Officer, if Ferro had been employed, his risk of exposure to COVID-19 would have been as great, or maybe greater, than most employment opportunities. As such, his argument that it was too dangerous to work in other employment during this time is specious, at best.

2 And, of course, Commission decisions are not precedential, and each is decided on the particular facts and circumstances presented as compared to the statutory and regulatory guidelines.

Referencing Ferro’s argument that his obligation to mitigate should have ended at the time of the ALJ’s May 21, 2022, initial decision, it is noted that an ALJ’s decision is only a recommendation until and unless it is adopted by the Commission. Further, a review of the ALJ’s initial decision clearly indicates that the decision was “pending issuance of a final decision by the Civil Service Commission.” As such, Ferro had no reasonable expectation that he no longer had a duty to mitigate as the ALJ’s initial decision clearly indicated that the decision was subject to the Commission’s decision. Further, N.J.A.C. 4A:2-2.10(d)5 provides that an employee shall not be required to mitigate back pay for any period between the issue date of a Commission decision reversing or modifying a removal or reversing an indefinite suspension and the date of actual reinstatement. Accordingly, this rule clearly indicates that Ferro’s duty to no longer mitigate began October 27, 2021, the date the Commission adopted the ALJ’s decision.

Concerning BCSO’s requests regarding Ferro’s back pay, it rehashes its arguments regarding when back should start, that potential income from UPS should be imputed to him, that he should be required to submit tax returns, and childcare savings should offset his back pay award. The Commission denies these requests for the reasons stated it May 18, 2022, decision. However, the record regarding Ferro’s employment with Uber during 2019 has been clarified. In the original proceeding, the record indicated that Ferro worked for Uber for some part of 2019. In this proceeding, the record indicates that he completed 24 trips in July 2019, 1 trip in August 2019, 34 trips in October 2019, 63 trips in November 2019, and 108 trips in December 2019. Therefore, the Commission finds that Ferro sufficiently mitigated his back pay in July, October, November, and December 2019 and is not entitled to back pay in any other months in 2019 where he did not work for Uber or in August 2019, where he only made one trip, as his underemployment during this month is not considered a “suitable employment” as required N.J.A.C. 4A:2-2.10(d). Therefore, the Commission clarifies that Ferro is entitled to gross back pay for whatever portion of the $120,158.61 that was earned during July, October, November, and December 2019, less whatever he earned from Uber and FantasyPros in these months, and less whatever portion of unemployment benefits that was received during these months. All other aspects of the Commission’s May 18, 2022, decision remain in effect.

Finally, the BCSO’s request for a stay is denied for the reasons as stated in the Commission’s January 19, 2022, decision

ORDER

Therefore, it is ordered that Christopher Ferro’s request for reconsideration and the Bergen County Sheriff Office’s request for a stay are denied. The Civil Service Commission clarifies its back pay award as provided for in this decision. All other aspects of the Commission’s May 18, 2022, decision remain in effect. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.

This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.