On appeal from a Final Determination of the Civil Service Commission.
Dreier and Shebell. The opinion of the court was delivered by Dreier, J.A.D.
Shirley Williams has appealed from so much of the final order of the Civil Service Commission dated December 29, 1983 as denied her back pay from March 17, 1983, when she had been dismissed as a Sheriff's Officer. The same order directed that she be retroactively rehired as a Correction Officer.*fn1 The Sheriff's Office and the Civil Service Commission admit that the discharge of appellant, rather than a reinstatement to her former Correction Officer status, had been in error. See N.J.A.C. 4:3-83.
The decision to deny back pay had been based upon a common-law principle that the State or its subdivisions may not pay for work not actually performed and Ms. Williams, therefore, was deemed relegated to an action against the State for her back pay pursuant to the Tort Claims Act. Taylor v. Dept. of Civil Service, 159 N.J. Super. 119, 122 (App.Div.1978). The Commission acknowledged its authority "to award back pay in termination matters arising from disciplinary proceedings or layoff actions where bad faith has been found" under the Taylor case. In the case before us, however, the Commission found that the termination resulted "from the lack of understanding of the requirements of the relevant laws and the relationship between them, as opposed to an intended disciplinary action or bad faith on the part of the appointing authority."
Under the common-law "no work-no pay" rule in New Jersey even a wrongful act of the public employer provided an insufficient foundation for the award of back pay. "It was doubtless the seeming unjustice of this rule that provoked legislative action." Tp. of Springfield v. Pedersen, 73 N.J. 1, 6 (1977). Statutory abridgements of the common-law rule, therefore, were enacted applying to "any municipal officer or employee" (N.J.S.A. 40A:9-172), "any member or officer of a paid or part-paid fire department or force" (N.J.S.A. 40A:14-23), and "any member or officer of a municipal police department or force" (N.J.S.A. 40A:14-151). The only statutory provision which might be applicable to the county employment of Ms. Williams is N.J.S.A. 11:15-6, ostensibly limited to disciplinary proceedings, and so determined in Taylor. The statute reads:
The commission shall, within fifteen days after the completion of the investigation, inquiry or hearing, and sooner if practicable, render a decision to be forthwith certified to the appointing authority who shall forthwith enforce the same.
The decision shall state whether the removal of the employee is approved, or whether he is to be restored to his position without loss of pay, transferred to another position in the same class, fined, demoted, suspended without pay or with reduced pay, for a period not exceeding six months, or to be reprimanded or otherwise dealt with.
The commission may, when in its judgment the facts warrant it, modify or amend the penalty imposed by the appointing authority or substitute another penalty for that imposed, except that removal from the service shall not be substituted for a lesser penalty. [Emphasis Added].
In recent years, however, there have been dicta in New Jersey Supreme Court cases from which we may determine that N.J.S.A. 11:15-6 need not be limited to disciplinary matters. In Heath v. Bd. of Managers of the Jersey City Medical Center, 92 N.J. 1 (1983), the court reviewed a decision applying N.J.S.A. 11:15-6 to a non-disciplinary case. The plaintiff there lost her title as Director of Nursing after a merger of two hospitals. The plaintiff argued that her loss of title had been a "mode of disciplinary action," and the appellate division agreed that the loss of title was similar to a demotion after formal disciplinary charges and awarded back pay. The Supreme Court reversed on the basis that there had been no demotion and in dictum
discussed whether there was a need to cast the case in the mold of a "disciplinary" action to be afforded protection under N.J.S.A. 11:15-6. After discussing that section, as well as 11:15-1 authorizing suspensions with or without pay, the court noted:
To be sure, the nomenclature used in these enactments bears the stamp of a disciplinary proceeding. However, when read in the context of N.J.S.A. 11:2A-1, it is by no means clear that 11:15-6 is so restricted, as claimed ...