Janeen McNally, CSC Docket No. 2023-741

BackgroundThe appeal of Janeen McNally, County Correctional Police Officer, Bergen County, Sheriffs Office, 10 working day suspension, on charges was heard by Administrative Law Judge Nanci G. Stokes (ALJ), whe rendered her initial decision on June 8, 2023. Exceptions were filed on behalf of the appointing authority and a reply to exceptions was filed on behalf of the appellant.

AnalysisHaving considered the record and the ALJ’s initial decision, and having made an independent evaluation of the record, including a thorough review of the exceptions and reply filed by the parties, the Civil Service Commission (Commission), at its meeting on August 2, 2023, adopted the ALJ’s Findings of Fact and Conclusions and her recommendation to modify the 10 working day suspension to a written reprimand.!

As mentioned above, the Commission has thoroughly reviewed the exceptions filed in this matter and finds them unpersuasive in all respects. The exceptions contend that the ALJ misinterpreted its policy by ascribing the progressive disciplinary schedule in its General Order GO-10-1.83 to the current situation. The Commission rejects this assertion. In this regard, whether the ALJ relied on the progressive discipline penalty schedule, the Commission’s review of the proper penalty in a disciplinary matter is de novo. As such, the Commission is not bound by the appointing authority’s penalty schedule in determining the proper penalty. See In the Matter of Gregory McDaniel, Docket No. A-5583-02T2 (App. Div. May 24, 2004);

Administrative Law Judge1 The ALJ indicates the penalty as a “written warning” in the initial decision. However, the minimum penalty that is considered disciplinary in nature under Civil Service law and rules is a written reprimand. See N.d.A.C. 4A:2-3.1(a).

AnalysisIn the Matter of Leonard Wilson (MSB, decided April 6, 2005); In the Matter of Patricia Everingham (MSB, decided March 13, 2003); In the Matter of George Roskilly (MSB, decided November 20, 2002). In this matter, based on the reasoning presented by the ALJ and the mitigating factors presented, the Commission finds that a written reprimand is the proper penalty.

Since the suspension has been modified, the appellant is entitled to 10 working days of back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10. However, she 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, charges were sustained, and 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.

ORDER

The Civil Service Commission finds that the action of the appointing authority in disciplining the appellant was justified. The Commission therefore modifies the 10 working day suspension to a written reprimand. The Commission further orders that the appellant be granted 10 working days of back pay, benefits and seniority. The amount of back pay awarded is to be reduced as provided for in N.J.A.C. 4A:2- 2.10{d)3. Proof of income earned shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision.

Counsel fees are denied pursuant to N.d.A.C. 4A:2-2.12.

ClosingThis is the final administrative determination in these matters. Any further review should be pursued in a judicial forum.