On appeal from Merit System Board.
Shebell, Skillman and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.
The Department of Human Services (DHS) appeals from a final determination of the Merit System Board (Board) awarding Frank DelRossi back pay, benefits which would have accrued during his suspension and attorney's fees.
In 1988, DelRossi was a police officer employed by DHS and serving in the provisional title of lieutenant. As a result of the filing of criminal complaints against him in April 1988, charging him with offenses unrelated to his employment, DHS suspended DelRossi without pay. Thereafter, Gloucester County Indictment 612-8-88 was filed charging DelRossi with third degree theft, hindering prosecution and third degree conspiracy to commit theft. DelRossi was permitted to enroll in the county's pretrial intervention program (PTI). N.J.S.A. 2C:43-12 et seq. After he successfully completed the program, the Law Division dismissed the indictment by order dated July 21, 1989.
DHS reinstated DelRossi in his permanent rank of sergeant effective August 1989, but refused to award him back pay and benefits. DelRossi appealed to the Board which "accepted and adopted the findings of fact and Conclusion" contained in an Administrative Law Judge's initial decision and awarded DelRossi back pay from April 26, 1988 as well as "benefits which would have accrued during the period of his suspension" and counsel fees.
N.J.S.A. 11A:2-13 authorizes the suspension of an employee when the employee is charged with a crime of the first, second
or third degree unrelated to his job. The statute provides that the suspension shall continue until a Disposition of the charge and that "[t]he board shall establish, by rule, procedures for hearings and suspensions with or without pay." N.J.A.C. 4A:2-2.5(a)(2) and -2.7, following the statute, authorize the immediate suspension of an employee who is charged with a crime. N.J.A.C. 4A:2-2.4 provides that "[i]n State service, suspension shall be without pay unless directly authorized to be with pay by the department head."
N.J.S.A. 11A:2-22 authorizes an award of back pay. It provides: "The board may award back pay, benefits, seniority and reasonable attorney fees to an employee as provided by rule." The only rules we have found authorizing an award of back pay are N.J.A.C. 4A:2-1.5(b) and N.J.A.C. 4A:2-2.10(a). N.J.A.C. 4A:2-1.5(b) provides in part:
(b) Back pay, benefits and counsel fees may be awarded in disciplinary appeals and where a layoff action has been in bad faith. See N.J.A.C. 4A:2-2.10. In all other appeals, such relief may be granted where the appointing authority has unreasonably failed or delayed to carry out an order of the Commissioner or Board or where the Board finds sufficient cause based on the particular case.
N.J.A.C. 4A:2-2.10(a) provides in part:
[w]here a disciplinary penalty has been reversed, the Board shall award back pay, benefits, seniority or restitution of a fine. Such items may be awarded ...