Immanuel Jones, CSC Docket No. 2023-1444

BackgroundThe appeal of Immanuel Jones, Laborer 1, Township of Union, Department of Buildings and Grounds, removal, effective October 14, 2022, on charges, was heard by Administrative Law Judge Andrew M. Baron (ALJ), who rendered his initial decision on March 8, 2024. Exceptions were filed by both parties and a reply to exceptions was filed on behalf of the appointing authority.

AnalysisHaving considered the record and the attached ALJ’s initial decision, and having made an independent evaluation of the record, including a thorough review of the exception and reply, the Civil Service Commission (Commission), at its meeting on April 10, 2024, adopted the ALJ’s Findings of Facts and Conclusions and his recommendation to modify the removal to a four working day suspension.

As indicated above, the Commission thoroughly reviewed the exceptions and reply filed in this matter. Upon that review, it does not find anything persuasive to overturn the ALJ’s recommendations regarding the substantive finding on the charges. Regarding the penalty, the Commission’s review is de novo. In addition to its consideration of the seriousness of the underlying incident in determining the proper penalty, the Commission also utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). In determining the propriety of the penalty, several factors must be considered, including the nature of the appellant’s offense, the concept of progressive discipline, and the employee’s prior record. George v. North Princeton Developmental Center, 96 N.J.A.R. 2d (CSV) 463. However, it is well established that where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual’s disciplinary history. See Henry v. Rahway State Prison, 81 N.J. 571 (1980). It is settled that the theory of progressive discipline is not a “fixed and immutable rule to be followed without question.” Rather, it is recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. See Carter v. Bordentown, 191 N.. 474 (2007).

In this matter, the Commission agrees with the ALJ’s recommendation to modify the removal to a four working day suspension. The ALJ determined that a penalty of removal was too severe for the appellant’s infractions. The ALJ outlined that the appointing authority did not follow the tenets of progressive discipline in this matter as the appellant had no prior disciplinary history. Further, the appellant’s actions were not egregious enough to warrant removal. Accordingly, the Commission finds that removal was too severe a penalty and that the minor disciplinary action of a four working day suspension is the appropriate penalty.

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

RuleMoreover, N.dJ.A.C. 4A:2-2.12 provides for the award of counsel fees only when an employee has prevailed on all or substantially all of the primary issues in an appeal. The primary issue in any disciplinary appeal is the merits of the charges, not whether the penalty imposed was appropriate. See Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121, 128 (App. Div. 1995); James L. Smith v. Department of Personnel, Docket No, A-1489-02T2 (App. Div. March 18, 2004); In the Matter of ° Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). It is also noted that a reduction in penalty may lead to an award of partial counsel fees, but only under circumstances 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 Matter 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). In the instant matter, the charges against the appellant were upheld. However, the Commission has found that the penalty of removal imposed by the appointing authority was clearly too severe given the infraction and that a minor disciplinary action was appropriate. Therefore, the Commission determines that since the imposition of a removal was a clearly excessive penalty being sought, the awarding of counsel fees of 75 percent of the services charged to the appellant, in accordance with N./.A.C. 4A:2.12, is appropriate.

AnalysisThis 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 and/or counsel fees are finally resolved. In the interim, as the court states in Phillips, supra, 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. Therefore, the Commission modifies the removal to a four working day suspension. The Commission further orders that the appellant be granted back pay, benefits and seniority for the period after the imposition of the four working day suspension through the date of his actual 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.

The Commission further orders that counsel fees be awarded to the attorney for the appellant pursuant to N.J.A.C. 4A:2-2.12 in the amount of 75 percent of the services charged. An affidavit of services 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.d.A.C. 4A:2-2.10 and N.S A.C. 4A:2.12, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay and counsel fees. However, under no circumstances should the appellant’s reinstatement be delayed pending resolution of any potential back pay or counsel fee dispute.

The parties must inform the Commission, in writing, if there is any dispute as to back pay or 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.