Robert Dodson, CSC Docket No. 2023-758

BackgroundThe appeal of Robert Dodson, Police Officer, Atlantic City, Police Department, removal, effective October 2, 2022, on charges, was heard by Administrative Law Judge Kathleen M. Calemmo (ALJ), who rendered her initial decision on March 14, 2024, reversing the removal. No exceptions were filed.

AnalysisHaving considered the record and the attached ALJ’s initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on April 10, 2024, adopted the ALJ’s Findings of Facts and Conclusions and her recommendation to reverse the removal.

The Commission makes only the following comments. The appellant’s expert witness provided uncontradicted testimony, to a reasonable degree of scientific certainty, that the appellant’s disclosed use of the over-the-counter supplement was the most logical source of his positive drug test. The ALJ also determined that the labeling would not have made it clear to the appellant that the supplement would metabolize to a prohibited substance. Accordingly, the Commission agrees with the ALJ’s determinations regarding the charges and that the appellant’s removal should be reversed.

Since the removal has been reversed, the appellant is entitled to be reinstated. Normally, the appellant would also be entitled to mitigated back pay, benefits, and seniority pursuant to N..J.A.C. 4A:2-2.10 from the initial date of separation without pay until the date of actual reinstatement. However, in the initial decision, the ALJ indicated that the appellant had been returned to pay status on or before August 24, 2023, pursuant to N.J.S.A. 40A:14-201. The appellant, therefore, will have already received any pay that he would be entitled to from that date forward until his reinstatement, and, as he was in pay status, he should also receive any concomitant benefits and seniority for that timeframe. See also, N.d.A.C. 4A:2-2.10(d)5. For any period from the date of first separation that he was not in pay status, he is entitled to mitigated back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10. Additionally, as he has prevailed in this matter, he is entitled to reasonable counsel fees per 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 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 or counsel fees are finally resolved. In the interim, as the court states in Phillips, supra, upon receipt of this decision, the appointing authority shall immediately reinstate the appellant.

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 appellant’s appeal.

The Commission orders that the appellant be immediately reinstated to his permanent position and receive back pay, benefits, and seniority from the first date of separation for any period he was not in pay status pursuant to N.J/.S.A. 40A:14- 201. 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 for any period he was not in pay status 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.d.A.C, 4A:2-2.10 and N.d.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.