John Joseph Mulholland, CSC Docket No. 2023-200

BackgroundThe appeal of John Joseph Mulholland, Senior Public Works Repairer, Ringwood, Department of Public Works, removal, effective July 12, 2022, was heard by Administrative Law Judge Julio C. Morejon, who rendered his initial decision on October 29, 2024. 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 ALJ’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 November 27, 2024, accepted and adopted the Findings of Fact and Conclusions as contained in the attached ALJ’s initial decision and his recommendation to reverse the removal.

As indicated above, the Commission has thoroughly reviewed the exceptions filed by the appointing authority in this matter and finds them unpersuasive. In this regard, the ALJ’s determinations are predominantly based on his assessment of the credibility of the witnesses. In his initial decision, the ALJ stated:

Administrative Law JudgeI FIND Stout’s testimony not credible in characterizing

AnalysisMulholland’s behavior on June 16 and 17, as “belligerent”,

“argumentative” and “loud”, to justify a termination of Mulholland because he violated the Last Chance Agreement. For example, Stout conceded on cross-examination that Mulholland’s conduct on both dates was “not threatening” to him or the employees, but “loud”. Another example was Stout’s description of Mulholland’s conduct as “belligerent” or “insubordinate’” is also not credible, inasmuch as Stout’s testimony on cross examination regarding the report he prepared on June 16 regarding the dangling chain (Exhibit S) revealed he did not deem

Mulholland’s conduct to be belligerent or threatening.

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.J. 644 (1999) (quoting State uv. Locurto, 157 N.eJ. 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 ALd’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.d. Super. 527 (App. Div. 2004). In this matter, the exceptions filed are not persuasive in demonstrating that the ALJ’s credibility determinations, or his 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. Moreover, as the ALJ and Commission agree the charges underlying the alleged misconduct were not proven, any assertion that the appellant violated the Last Change Agreement must also fail.

The Commission also rejects the appointing authority's argument that since the appellant had previous disciplinary action for conduct similar to the alleged current misconduct, that he should be similarly found guilty. Clearly, past disciplinary action or misconduct cannot be used to prove current alleged misconduct. In this matter, both the ALJ and Commission have found that the appointing authority has not sustained its burden of proving the current charges based on the credible evidence in the record. The Commission notes that an employee’s past disciplinary record is properly used as a factor in determining the proper penalty for a current disciplinary action, where, unlike in this matter, charges are sustained.

Additionally, the appointing authority argues that the ALJ improperly used the enhanced standard of “clear and convincing evidence” when finding that it had not satisfied its burden of proof. While the ALJ does use that language at the end his “Legal Analysis and Conclusion” section of the initial decision, based on his credibility and other findings, it is clear that the appointing authority did not sustain its burden of proving the charges under the proper standard of a “preponderance of the evidence.” In fact, the ALJ referred to that proper standard several times earlier in the same section. As such, the Commission finds any reference to the “clear and convincing” standard to be a de minimis typographical error, and at most, an error that does not change the outcome as the Commission has found, in its de novo review, that the credible evidence in the record does not support that the appointing authority sustained its burden of proof by a preponderance of the evidence.

The Commission similarly rejects the appointing authority’s allegation that since the ALJ’s initial decision was issued more than a year from when it perceived the record to be closed, and it did not “agree” to such a delay, that the decision should be invalidated, or any award of back pay should be limited. Initially, per the ALJ’s determination, the record in this matter closed on October 16, 2024, and the initial decision was rendered on October 29, 2024. The Commission finds no reason in the record to discredit this recitation. Moreover, even if the record closed in November 2023 when the appointing authority contends, extensions to file an initial decision are not subject to “agreement” of the parties. Rather, requests for extensions to file an initial decision are properly initially filed by an ALJ with the Director of OAL, and subject to the ultimate approval of the transmitting agency. See N.J,A.C. 1:1-18.8(c). As such, if such extensions were required, they would have been properly made as per above and ultimately approved by the Chairperson of the Commission. Regardless, failure by an ALd to secure such extensions does not invalidate an initial decision. Moreover, even assuming, arguendo, that extensions were not properly secured, the Commission would decline to limit any potential award of back pay, as back pay is subject to mitigation under N.e.A.C. 4A:2-2.10.

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 actual reinstatement. Further, as the appellant has prevailed, he is entitled to reasonable counsel fees pursuant to N.d.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, per 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 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 reverses the removal and grants the appeal of John Joseph Mulholland.

The Commission orders that the appellant be granted back pay, benefits, and seniority from the appellant’s first date of separation without pay to the actual 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.d.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..J.A.C. 4A:2-2,10 and N.J.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.