On appeal from the Final Administrative Action of the Merit System Board.
Approved for Publication June 20, 1995.
Before Judges Dreier, Wefing and Braithwaite. The opinion of the court was delivered by Braithwaite, J.s.c. (temporarily assigned).
The opinion of the court was delivered by: Braithwaite
BRAITHWAITE, J.S.C. (temporarily assigned).
Plaintiff appeals from the final administrative action of the Merit System Board (Board) determining that he is entitled to back pay, benefits and seniority only from September 18, 1992, until the date he was actually reinstated, April 4, 1994. Plaintiff also appeals the Board's decision denying him counsel fees. We affirm.
Plaintiff was the assistant supervisor of the Plainfield Division of Public Works, where he had been employed for fourteen years. He was arrested on April 14, 1988, at his home after a search, pursuant to a warrant, disclosed cocaine. Defendant was charged with possession of CDS, N.J.S.A. 2C:35-10a; and possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-5b(3). Plaintiff was suspended from his employment indefinitely, and without pay, pending the outcome of the criminal charges.
Plaintiff appealed his indefinite suspension to the Board and requested a hearing. On January 23, 1990, the Board transferred the matter to the Office of Administrative Law (OAL) for a hearing. On June 19, 1990, a hearing was scheduled before then Administrative Law Judge (ALJ) Philip E. Cummis, where the parties agreed to a stipulation of settlement which provided that plaintiff would be reinstated. The ALJ approved the settlement, however, the Board rejected the ALJ's initial decision and remanded the matter for further proceedings because the settlement did not address the issue of back pay.
On remand, the matter was assigned to ALJ Mumtaz Bari-Brown. A pre-hearing conference was held on March 18, 1991. The issue on remand was whether plaintiff was entitled to back pay, and, if so, for what period. Hearings were set for August 14, September 18 and 24, 1991. However, on August 13, the August 14 hearing was adjourned for good cause. On that date, the Judge was informed that the plaintiff had not returned to work pursuant to the terms of the June 1990 stipulation of settlement. Plaintiff asserted that he did not return to work because he did not have child care for his son. Furthermore, at this time, the parties requested that an additional issue be decided: whether the indefinite suspension pending the Disposition of the criminal charges was appropriate. The defendant also stated that it would issue a Preliminary Notice of Disciplinary Action removing the plaintiff from his employment. Plaintiff then requested that the issues of his back pay, his indefinite suspension and his removal from employment be decided on the merits in one proceeding.
Subsequent to August 1991, several hearing dates were scheduled by the ALJ, but plaintiff requested adjournments because his criminal charges were still pending. On January 29, 1992, during a pre-hearing conference, counsel for plaintiff confirmed that plaintiff's criminal charges had been resolved. Plaintiff had pled guilty to the reduced disorderly persons offense of possessing CDS and failing to "voluntarily deliver the substance to the nearest law enforcement officer[.]" N.J.S.A. 2C:35-10c. Plaintiff was sentenced to a probationary term of one year, and to pay a fine. A hearing was then scheduled by the ALJ for February 5, 1992. Plaintiff requested an adjournment because of another pending matter in Middlesex County. His request was denied.
On February 5, 1992, plaintiff failed to appear for the hearing and defendant moved to dismiss plaintiff's appeal. On March 24, 1992, the ALJ granted defendant's motion to dismiss. In the interim, plaintiff was notified that he was terminated from his employment by a final notice of disciplinary action dated March 18, 1992. The basis of the termination was conduct unbecoming a public employee, based on the conduct underlying the criminal charges. Plaintiff filed exceptions to the ALJ's decision of March 24, 1992 on May 29, 1992. Again, the Board remanded the matter to the OAL for a hearing on plaintiff's indefinite suspension pending the Disposition of the criminal charges, and his termination of employment.
The matter was then heard by ALJ Bari-Brown, who rendered an initial decision on September 16, 1993. She determined that the indefinite suspension pending the Disposition of the criminal charges was in the public interest and should be upheld. With regard to the charge of conduct unbecoming a public employee, she concluded that the charge should be sustained and the penalty of removal was appropriate.
In its decision of November 11, 1993, the Board found that the action of defendant in indefinitely suspending plaintiff pending the Disposition of the criminal charges was justified and it affirmed that action. The Board also agreed with the ALJ's finding that plaintiff's conduct was unbecoming a public employee. However, it found that because of certain mitigating factors, removal was too harsh a penalty. The Board concluded that the appropriate disciplinary action was a six month suspension. The six month period of suspension began on March 18, 1992, and ended on September 18, 1992. The Board ordered that plaintiff be granted back pay, benefits and seniority for the period following the suspension to the date of actual reinstatement. The back pay was to be reduced by any income earned by plaintiff from September 18, 1992, until his actual reinstatement.
On December 23, 1993, plaintiff submitted a letter to the Department of Personnel requesting enforcement of the Board's order because as of that date he had not been reinstated. On December 28, 1993, notice of plaintiff's request for enforcement was sent to defendant's attorney, Daniel Williamson, who filed an appeal of the Board's order with this court.
On March 9, 1994, the Board rendered a second decision ordering defendant to reinstate plaintiff to his position as Assistant Supervisor of Public Works. The Board reiterated the Conclusions in its November 11, 1993 decision. It again concluded that plaintiff was only entitled to receive back pay, benefits and seniority for the period following the six month suspension, (September 18, 1992) to the date of actual reinstatement, mitigated by any ...