Omar Polanco, CSC Docket No. 2023-1988

BackgroundThe appeal of Omar Polanco, Police Officer, Jersey City Police Department, removal, effective March 1, 2023, on charges, was before by Administrative Law Judge Joann LaSala Candido (ALJ), who rendered her initial decision on August 18, 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 ALdJ’s initial decision, including a thorough review of the exceptions and reply, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting of September 20, 2023, accepted and adopted the Findings of Fact and Conclusion as contained in the attached ALJ’s initial decision and her recommendation to grant the appellant’s motion for summary decision and reverse the removal.

The Commission makes the following comments. As indicated above, the Commission thoroughly reviewed the exceptions filed by the appointing authority in this matter. In that regard, the Commission finds them unpersuasive as the ALJ’s findings and conclusions in reversing the removal was based on her thorough assessment of the record and are not arbitrary, capricious, unreasonable or legally incorrect.

The Commission notes that the ALJ’s decision was based on her determination that there were no material issues of fact in this matter in dispute. In this regard, the ALJ concluded that the removal was properly reversed under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). She further found that federal law did not preempt CREAMMA. In this regard, the ALJ relied in part on the Commission’s decision in In the Matter of

Norhan Mansour (CSC, decided August 2, 2023). In that matter, which is essentially factually identical to this matter, the Commission adopted that ALJ’s granting of summary decision reversing Mansour’s removal. In that case, the Commission agreed with the ALJ that federal law does not preempt CREAMMA; that Mansour could carry a service weapon without violating federal law; and that the facts of that matter demonstrate that the appellant’s termination violated CREAMMA. As the ALJ’s analysis in this matter comports with Mansour, supra, the Commission, in its de novo review, again finds that federal law does not preempt CREAMMA,; that Polanco could carry a service weapon without violating federal law; and that the facts of this matter demonstrates that the appellant’s termination violated CREAMMA.

Since the removal has been reversed, 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 the first date of separation without pay until the date of reinstatement. Moreover, as the removal has been reversed, the appellant is 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 hght 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 or counsel fees 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 her position.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore reverses that action and grants the appeal of Omar Polanco. The Commission further orders that the appellant be granted back pay, benefits, and seniority from the first date of separation without pay until the 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 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. 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..J.A.C. 44:2.12, 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.