SID SE, CSC Docket No. 2023-977

BackgroundThe appeal of Ss oO County Correctional Police Officer, Mercer County Correction Center, release at the end of the working test period (WTP), effective October 27, 2022, was before Administrative Law Judge Dean J. Buono (ALJ), who rendered his initial decision on September 11, 2024. No exceptions were filed.

AnalysisHaving considered the record and the ALJ’s initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on October 16, 2024, adopted the ALJ’s decision granting the appellant’s motion for summary decision.

The Commission makes the following comments. The ALJ correctly indicated that since the basis for the appellant’s release at the end of the working test period involved allegations of misconduct subject to disciplinary action that had not been adjudicated prior to the expiration of the WTP, the release of the appellant at the end of that period could not stand. In this regard, unsatisfactory job performance is the standard for a release at the end of the WTP, Where, as here, the alleged unsatisfactory performance is based on misconduct subject to disciplinary action and that disciplinary action has not yet been substantiated after the employee’s due process rights are afforded, such alleged misconduct cannot be relied upon. However, given that the release was, in essence, procedurally deficient, it cannot be stated that the appointing authority acted in bad faith. Rather, it appears that its actions stemmed from its misunderstanding of the relationship between disciplinary actions and the standards for a release at the end the working test period. Therefore, while the Commission finds the release should be reversed, the appropriate remedy in this matter is not a grant of permanent status, especially since there are still outstanding allegations of misconduct related to job performance. Rather, the appropriate remedy is that the appellant undergo a new WTP. During the new WTP, the appointing authority shall, as appropriate, go forward with any pending disciplinary actions and afford the appellant his full due process rights in that regard. Should any or all of those actions be sustained at the departmental level, the appointing authority should impose appropriate disciplinary penalties, and, if none result in disciplinary removal before the completion of the new WTP, it may thereafter rely on those actions in determining whether the appellant successfully completed his new WTP. If any of those disciplinary actions result in the appellant's disciplinary removal before the end of the new WTP, the appellant will then have the ability to appeal that removal to the Commission.

In non-disciplinary appeals, such as an appeal of a release at the end of the working test period, the standard for determining whether an appellant is entitled to back pay or counsel fees is governed by N.dJ.A.C. 4A:2-4.3(c) and N.eJ.A.C. 4A:2-1.5(b). N.d.A.C. 4A:2-1.5(b) provides, in pertinent part, that back pay and counsel fees for appeals that are not based on disciplinary action or the challenge of the good faith of a layoff “may be granted .. . where the Commission finds sufficient cause based on the particular case.” In this case, it was found that the appellant is not entitled to a permanent appointment since the appointing authority’s release was based on its misapplication of the controlling regulatory standards, and was not made in bad faith. Therefore, sufficient cause has not been demonstrated in this matter to award back pay or counsel fees. See e.g., In the Matter of Melvin Robinson (MSB, decided December 21, 2005), In the Matter of Rocky Rembert (MSB, decided December 3, 2003). :

ORDER

The Civil Service Commission finds that the action of the appointing authority in releasing the appellant at the end of the working test period was not justified. The Commission therefore reverses that action and grants the appeal of Gia HE. The Commission further orders that the appellant be granted a new working test period.

Back pay and counsel fees are denied.

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