On certification to the Superior Court, Appellate Division, whose opinion is reported at 193 N.J. Super. 629 (1984).
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler and Pollock. For reversal -- Justices O'Hern and Garibaldi. O'Hern and Garibaldi, JJ., dissenting.
The Appellate Division reversed the decision of the Civil Service Commission (Commission) that denied back pay to respondent, John Steinel, for the period following the expiration of his six-months' suspension. 193 N.J. Super. 629 (1984). In reversing, the Appellate Division determined that Steinel "is entitled to back pay after six months' suspension subject to reduction and mitigation for income earned or income which could have been earned after the six months' period in accordance with N.J.A.C. 4:1-5.17." Id. at 637. Accordingly, the Appellate Division remanded the matter to the Commission to redetermine the award. We affirm substantially for the reasons set forth in the opinion of the Appellate Division.
The Appellate Division based its decision on N.J.S.A. 11:15-6, which provides:
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.
Read literally, the statute prohibits a denial of more than six months' back pay to a suspended employee. That reading is supported by one of two lines of Appellate Division decisions. The first line of cases, followed by the Appellate Division here, holds that, absent special circumstances or equitable considerations such as delay caused by the employee, he or she is entitled to back pay following a six months' suspension. See Belleville v. Coppla, 187 N.J. Super. 147 (1982); Millan v. Morris View, 177 N.J. Super. 620 (1981). A second line of cases, beginning with Feldman v. Town of Irvington Fire Dep't, 162 N.J. Super. 177, 183 (1978), holds that the Commission not only has the authority to suspend an employee for six months, but also to withhold his or her pay beyond that period. The most recent case in this line is Cliff v. Morris County Bd. of Social Servs., 197 N.J. Super. 307 (1984), which we are this day reversing and remanding to the Commission in light of this opinion.
The clear language of N.J.S.A. 11:15-6 precludes suspension without back pay for more than six months. Consequently, we approve the adoption by the Appellate Division in the present case of the Millan and Belleville decisions and disapprove the Feldman and Cliff decisions. Our dissenting colleagues argue that the better public policy would be to give the Commission the authority to deny back pay beyond the period of a six months' suspension. Whatever merit inheres in that suggestion, it is our function to follow the legislative will. State v. Fearick, 69 N.J. 32, 37 (1976). Thus, we agree with the Appellate Division's observation that "[i]f our result is unfair it is within the power of the Legislature to change the law so as
to authorize the decision reached by the commission." 193 N.J. Super. at 637. When the Legislature has created so pervasive a statutory scheme, as it has with respect to Civil Service, and has spoken so clearly, as it has in N.J.S.A. 11:15-6, we believe ...