Adam Austino, CSC Docket No. 2023-932

BackgroundThe appeal of Adam Austino, Police Captain. Vineland. Police Departinent, removal, effective November 15, 2021. on charges. was heard by Administrative Law Judge Catherine A. Tuchy (ALJ), who rendered her initial decision on February 4. 2024. 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 mile an independent evaluation of the record, including a thorough review of the exceptions and reply, the Civil Service Commission (Commission). at its meeting on March 20, 2024, adopted the ALJ’s Findings of Facts and Conclusions of Law and her recommendation to reverse the removal.

Upon its de novo review of the ALJ’s thorough and well-reasoned iiitial decision as well as the entire record, including the exceptions and reply filed by the parties, which do not require extensive comment, the Commission agrecs with the ALJ’s determinations regarding the charges, as they were predominantly based on the ALJ’s credibility determinations of the testimony of the witnesses. While thu appointing authority, in its exceptions, attempts to argue that it was justified to take disciplinary action based on the facts in the record, it has not demonstrated 1 anv way that the ALJ’s eminently detailed findings and conclusions were arbitears capricious, unreasonable or not based on the credible evidence in the record. In this regard, the Commission acknowledges that the ALJ, who has the benefit of herring and seeing the witnesses, is generally in a better position to determine the credibiltes and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997), “|/F]mial courts’ credibility findings ... are often influenced by matters such as observations of the character and demeanor of the witnesses and common human expericnee that are not transmitted by the record.” See also, In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 N.J. 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 Comonssion has the authority to reverse or modify an ALJ's decision if it is not supported by sufficient credible evidence or was otherwise arbitrary. See N.JS.A. 52:14B-10(c): Cavalieri u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div 2004). In this matter, the exceptions filed are not persuasive in demonstrating that the ALJ’s credibility determinations, or her 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.

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 withoul pay until the date of actual reinstatement. However, there is information in the record indicating that the appellant was reinstated to pay status on May 2. 2023. pursuant to N.d.S.A. 404:14-201. Assuming the accuracy of this information. 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.J.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.dJ.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/.S oA. £04: 14- 201. The amount of back pay awarded is to be reduced and mitigated as provided for in N.SLA.C. 4A:2-2.10. Proof of income earned, and an affidavit of mitigation shall he 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.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.S.A.C. 4A:2-2.10 and N.J.A.C. 4A4:2.12, 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 delaved 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 admintstrative 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.