Rudolph Beu, CSC Docket No. 2023-939

BackgroundThe appeal of Rudolph Beu, Police Chief, Vineland, Police Department, removal, effective November 15, 2021, on charges, was heard by Administrative Law Judge Kathleen M. Calemmo (ALJ), who rendered her initial decision on December 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, the Civil Service Commission (Commission), at its meeting on January 17, 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 initial decision as well as the entire record, including the exceptions and replies filed by the parties, most of which do not require extensive comment, the Commission agrees with the ALJ’s determinations regarding the charges, as they were predominantly based on the ALJ’s credibility determinations of testimony of the witnesses. In this regard, 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.-f. 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 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 Commission 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.J.S.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 AL.J’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.

Among the appointing authority’s exceptions, it argues that the initial decision cannot be adopted as it was issued outside the 45-day period proscribed in N,<J.S.A. 52:14B-10 and N.J.A.C. 1:1-18.1(e). The Commission rejects this contention. The initial decision clearly states that the record closed on October 26, 2023, making its December 8, 2023, issue date timely. Even assuming, arguendo, that the record closed when the appointing authority contends, October 21, 2023, making it untimely, would not persuade the Commission that it cannot be considered. Initially, the appointing authority has presented no evidence that the alleged untimely issuance prejudiced it in any way. Moreover, pursuant to N.J.A.C. 1:1-18.8(a) and (c), ALJs may request extensions to issue an initial decision. Such an extension would have certainly been granted by the Commission if it were needed in this case. To find otherwise would be the epitome of placing form over substance.

The appointing authority also argues that the ALJ’s dismissal of certain charges during the hearing was improper. The Commission disagrees. In this regard, the Commission finds that the ALJ’s April 17, 2023, Order regarding that issue to be thorough, comprehensive and firmly based on her assessment of the credible evidence in the record. The Commission finds nothing in the record or the appellant’s exceptions to indicate that the determination made by the ALJ in that Order should be overturned.

Additionally, the appointing authority states that it should not have been required to provide pay to the appellant pursuant to N.J.S.A. 40A:14-201, arguing, in essence, that it is in violation of the New Jersey Constitution. The Commission rejects this contention. N.J.S.A. 40A:14-201 was passed by the legislature and signed into law by the sitting Governor. The subsequent enabling regulations found in Title 1 and Title 4A of the New Jersey Administrative Code were properly promulgated under the Administrative Procedures Act. Any argument that the appointing authority has as to the constitutionality of these provisions is not properly raised before the Commission, and therefore, will not be considered.

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, there is information in the record indicating that the appellant was reinstated to pay status on April 30, 2023, pursuant to N.J.S.A. 40A: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.J.S.A. 40A:14- 201. The amount of back pay awarded is to be reduced and mitigated as provided for in N.d.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.J.A.C. 4A:2-2.10 and N.dA.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.