On appeal from the Department of Personnel, Merit System Board, No. 2007-2128.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and C.L. Miniman.
In this appeal, we reject appellant Kerry Martin's contention that the back pay due him from the County of Union was settled prior to the Merit System Board's adjudication of the issue. The parties negotiated and even stipulated to salary figures and computations but never reached a binding agreement.
However, because the County's submission to the Board could have reasonably led Martin to believe otherwise, we remand to provide Martin with an opportunity to provide additional evidence on that point.
Many relevant facts are not in dispute. Martin was charged with chronic or excessive absenteeism or lateness, in violation of a November 2002 stipulation of settlement and N.J.A.C. 4A:2-2.3(a)(4), and removed from his employment as a mechanic with the County on May 2, 2003. Martin requested a hearing and the matter was assigned to an administrative law judge, who found that Martin should be reinstated and awarded mitigated back pay, benefits and seniority from the effective date of his removal to the date of actual reinstatement, as well as counsel fees. The Board adopted this determination.
Later, the parties discussed settlement of the amount of back pay due Martin, and they exchanged financial information and salary calculations. On June 16, 2005, the County's counsel wrote to Martin's counsel, indicating that the gross amount of back pay for the period in question was $88,698; counsel indicated that this included 23 vacation days, which could not be carried over, and required deductions for unemployment benefits and other salary collected by Martin during the interim, which reduced the gross amount to $63,769. The County's counsel asserted that the "remaining issue" concerned the County's right to deduct "any salary which Mr. Martin did or could have earned during his hiatus, from a back pay award." Counsel concluded by indicating that "[t]o avoid litigating that issue, the County proposes to settle the back pay matter in the amount of $58,000.00."
A few months later, on September 8, 2005, Martin's counsel wrote to the County's counsel to "confirm our understanding that your office will prepare a settlement document regarding the above-referenced matter, which will memorialize the terms of settlement, as previously agreed upon." A few months after that, on November 17, 2005, Martin's counsel wrote to confirm that the County's counsel had "sent [his] recommendation to the County Manager to pay Mr. Martin the amount owed to him." Martin's counsel requested that he be informed "when Mr. Martin's monies have been approved."
The record next reveals that, on January 17, 2006, Martin's counsel wrote to the Board requesting a hearing; he complained that "[a]s of this date, the County has failed to pay any back pay, [c]counsel fees or benefits." No mention was made of a settlement agreement nor did Martin's counsel demand enforcement of a settlement agreement on any or all of the pending issues counsel referred to in his letter demanding a hearing.
On January 24, 2006, the Board responded that "[it would] decide the amount of back pay due pursuant to the standards set forth in N.J.A.C. 4A:2-2.10." The Board then outlined the materials that the parties were expected to submit.
On February 15, 2006, Martin's counsel wrote to the Board outlining his client's position. He referred to the financial information the parties' had exchanged, and asserted that, according to the County's computations, "the entire amount of back pay is $88,698.00, which includes vacation days unable to be carried over or used," but that Martin was also entitled to fifty-two sick days, thirty-eight vacation days, and three personal days. Martin's brief also outlined the unemployment benefits and other income he received during the interim and concluded that, with appropriate reductions and credits, "the total amount of back pay owed to him would equal to [sic] $63,790.00." Although Martin argued that the employer "verif[ied]" in its counsel's June 16, 2005 letter that Martin was owed $63,769 -- a mischaracterization of that letter*fn1 -- he also acknowledged that the County only "propos[ed] to . . . settle the matter in the amount of $58,000.00." Nowhere in his submission to the Board did Martin argue that he and the County had settled any or all of the disputed issues. Indeed, Martin was content to advocate for a larger award.
The County responded on June 23, 2006, arguing that:
The parties are in agreement as to the amount of . . . back pay which accumulated during the period he was terminated, which includes payment for 23 vacation days. The parties are also in agreement as to the amount of income received by Mr. Martin while ...