Brian McDevitt, CSC Docket No. 2024-1913

BackgroundThe appeal of Brian McDevitt, Police Officer, Atlantic City, Police Department, removal, effective May 2, 2023, on charges, was before Administrative Law Judge Tama B. Hughes, who rendered her initial summary decision on February 7, 2025. Exceptions were filed on behalf of the appointing authority and a reply was filed on behalf of the appellant.

AnalysisHaving considered the record and the ALJ’s initial decision, including a thorough review of the exceptions and reply, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting of March 19, 2025, accepted and adopted the ALJ’s determination to grant the appellant’s motion for summary decision and reverse the removal.

This matter poses purely legal questions regarding leave entitlements under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) and New Jersey State military leave laws and regulations. In her initial summary decision, the ALJ performed a thorough and insightful analysis of the subject leave entitlement issue in light of the laws. She considered both the appointing authority's and the appellant’s legal positions in that regard, and ultimately concluded that:

{Bly its own terms, USERRA does not preempt state statutes that provide for greater “rights and benefits” of employment than USERRA does. Under the broad federal definition of “rights and benefits” of employment, unpaid leave as provided for in N.J.S.A. 38A:4-4 and

N.J.S.A. 38:23-1 should be construed as a right or benefit not preempted by USERRA.

Administrative Law JudgeAccordingly, I CONCLUDE that N.J.S.A. 38A:4-4 and N.Jd.S.A.

Analysis38:23-1 are not preempted by USERRA and that appellant’s leave was protected.

Based upon the undisputed facts of this case and the relevant

Administrative Law JudgeState and Federal laws set forth above, I CONCLUDE that the respondent has failed to meet its burden of proof on all counts of the

Analysis[Final Notice of Disciplinary Action] based upon its misinterpretation of the plain and unambiguous language of both New Jersey military leave laws and the USERRA... and further CONCLUDE that appellant’s motion for summary decision should be GRANTED and that at all times, his military leave was protected under applicable New Jersey laws and regulations.

As indicated above, the Commission has thoroughly reviewed the exceptions filed by the appointing authority in this matter and finds them unpersuasive. In this regard, the arguments made in the exceptions have already been addressed sufficiently by the ALJ. Moreover, upon its de nove review, the Commission agrees with the ALJ’s legal analysis and conclusions.! Accordingly, the Commission upholds the ALJ’s recommendation granting the appellant’s motion for summary decision and reverses the removal.

Since the removal has been reversed, the appellant is entitled to be reinstated with mitigated back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10 from the first date of disciplinary separation without pay until the date of actual reinstatement. However, this award is subject to any period of active military duty past the 90 day threshold for paid military leave per year from the appellant’s first date of disciplinary separation without pay to the actual date of reinstatement. Any period of active military duty after those 90 days in any given year would be considered approved leaves of absence without pay. See N.J.A.C. 4A:6-1.11(e). Further, as the appellant has prevailed, he is entitled to reasonable counsel fees pursuant to 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, per 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, if it has not already done so, upon receipt of this decision, the appointing authority shall immediately reinstate the appellant to his permanent position.

1 Moreover, Civil Service rules support the ALJ's analysis. Namely, N.J.A.C. 4A:6-1.11(e) regarding military leave explicitly states that an “employee is entitled to a leave of absence without pay for such other military duty not covered by (b)... above.” This rule does not impose a limitation on the amount of unpaid leave. Section (b) indicates a National Guard member is entitled to 90 days of paid leave in a calendar year for federal active duty.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore reverses the removal and grants the appeal of Brian McDevitt.

The Commission orders that the appellant be granted back pay, benefits, and seniority, subject to any period of active military duty past the 90 day threshold for paid military leave per year from the appellant’s first date of disciplinary separation without pay to the actual date of reinstatement. The amount of back pay awarded is to be reduced and mitigated as provided for in N.eJ.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 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.J.A.C. 4A:2-2.10 and N.J.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.