Zaire Bailey, CSC Docket No. 2024-956

BackgroundThe appeal of Zaire Bailey, Supervising Juvenile Detention Officer, Middlesex County, Department of Adult Corrections, removal, effective May 6, 2023, on charges, was heard by Administrative Law Judge Sarah G. Crowley (ALJ), who rendered her initial decision on July 31, 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 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 October 16, 2024 adopted the ALJ’s Findings of Facts and Conclusions of Law and her recommendation to reverse the removal.

As indicated above, the Commission has reviewed the appointing authority’s exceptions in this matter and finds them wholly unpersuasive. It makes the following comment. The burden of proof in a disciplinary matter is on the appointing authority to show by a preponderance of the credible evidence in the record that the proffered charges are sustainable. For all the reasons expressed by the ALJ in her initial decision, the Commission agrees that the appointing authority has fallen short of this burden in this matter.

In this regard, the Commission agrees with the ALJ’s determinations regarding the charges, which were substantially based on her assessment of the credibility of the 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.J. 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 Siate 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).

Administrative Law JudgeIn her initial decision, the ALJ specifically found both appointing authority's witnesses’ testimony not credible. In this regard, as to Superintendent David Chippendale’s testimony, the ALJ found:

Having had an opportunity to carefully observe the demeanor of the witnesses, it is my view that the testimony of Chippendale was not credible and was not consistent with the facts and the documentation in this matter. Moreover, he contradicted himself several times in his testimony. . .

AnalysisThe testimony from Chippendale regarding the May 5, 2023, incident was likewise not credible, and not supported by any documentary evidence... .

Administrative Law JudgeThe ALJ similarly found the witness, nurse Nancy Giles, not credible, stating “the nurse seemed more concerned about getting the appellant in trouble than addressing the issue at hand, which was to get the resident reevaluated. The nurse was unclear on policies and protocols and her dislike for the appellant was clear by her demeanor and her description of him as ‘cocky.’ ”

AnalysisWhile the exceptions challenge these credibility determinations, the Commission finds no persuasive evidence in the record to demonstrate that the ALJ’s credibility determinations, or her findings and conclusions based on those determinations, were arbitrary, capricious, unreasonable or otherwise in error. Accordingly, the Commission finds nothing in the record to question those determinations or the findings and conclusions made therefrom.

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 separation without pay until the date of reinstatement. Moreover, as the removal has been reversed, the appellant is entitled to reasonable counsel fees pursuant to N.JdA.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 position.

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 appeal of Zaire Bailey. The Commission further orders that the appellant be granted back pay, benefits, and seniority from the first date of separation without pay until the date of reinstatement. 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 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.dJ.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.