June 23, 2010
IN THE MATTER OF JAMES FLAGG, NEWARK.
On appeal from a Final Decision of the New Jersey Civil Service Commission, CSC Docket No. 2009-305.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 3, 2010
Before Judges Cuff and Waugh.
James Flagg appeals from the December 8, 2008 final order of the Civil Service Commission*fn1 denying him back pay and counsel fees. This order was entered following our July 15, 2008 remand for entry of an appropriate back pay award and consideration of Flagg's application for attorney's fees. We affirm in part and reverse in part.
The facts underlying the removal of Flagg from his employment and the protracted procedural course this matter has experienced is fully set forth in two prior opinions: Flagg v. Essex County Prosecutor, 171 N.J. 561 (2002), and In re James Flagg, No. A-0788-05 (App. Div. July 15, 2008). As related in our most recent opinion,
Appellant James Flagg worked for the City of Newark as a truck driver. He worked at night and held a job with a private employer during the day. Appellant's City job, the night position, was his primary job as it provided his health and pension benefits. Flagg lost his public employment in 1996, when convicted of a criminal offense for onthe-job actions, but was reinstated in 2002.... [Flagg, supra, A-0788-05 (slip op. at 2).]
We noted that the Merit System Board (Board) had modified Flagg's sanction from removal to a six-month suspension but denied back pay. Ibid. We further noted that the issue was limited to Flagg's back pay claim. Ibid.
The Board denied back pay to Flagg because he failed to mitigate his lost pay for part of the time between his removal and reinstatement. As to the second segment of time, the Board deducted earnings from his second job from the back pay owed to him. The Board found support for the latter ruling in N.J.A.C. 4A:2-2.10(d)3. On appeal, we affirmed the Board's finding that Flagg failed to establish that he made diligent efforts to obtain substitute employment between March 7, 1997 and December 31, 2000, and was not entitled to back pay for that period. Id. at 7-8.
On the other hand, we reversed the Board's application of N.J.A.C. 4A:2-2.10(d)3 to bar back pay for the period between January 1, 2001 and May 6, 2002. We held as a matter of law that N.J.A.C. 4A:2-2.10(d)3 did not bar back pay to Flagg. We said:
We do not read N.J.A.C. 4A:2-2.10(d)3 to bar a disciplined employee who is entitled to back pay from changing his secondary job during the period of removal or suspension. The regulation allows earnings from a secondary job to mitigate a back pay obligation when the new or substituted secondary job has duties or hours incompatible with the public position. Neither the hours nor duties of Flagg's City employment were incompatible with Manella or Basso. The income earned from these positions should not have been set-off against his back pay award. [Id. at 12-13.]
We, therefore, reversed and remanded "for entry of the appropriate back pay award. In its [September 9, 2005] final decision, the Board calculated the back pay award owed to Flagg from January 1, 2001 to May 6, 2002, as $45,366.95." Id. at 13. We also directed the Board to consider Flagg's application for counsel fees. Ibid.
In its December 8, 2008 decision, the Commission remarked that "neither Flagg nor Newark presented any arguments regarding the amount of back pay owed to Flagg from January 1, 2001 to May 6, 2002." It then proceeded to find that Flagg failed to present any evidence that he had mitigated his lost pay from January 1, 2001 to May 6, 2002, and proceeded to hold that Flagg was not entitled to any back pay.
We are at a loss to understand this ruling. The Board had previously found that Flagg had presented evidence of mitigation for that period. The only issue before this court was whether N.J.A.C. 4A:2-2.10(d)3 barred the otherwise due and owing back pay award. Our prior ruling was clear. Our remand was limited to entry of a back pay award in the amount of $45,366.95 and to consider Flagg's application for counsel fees. Our ruling was not an opportunity or invitation to revisit the mitigation issue. We assume the Commission simply misapprehended the prior rulings of the Board and this court rather than acted in defiance of our mandate. We, therefore, reverse the December 8, 2009 order on remand to the extent that it bars any back pay to Flagg. Respondent City of Newark will pay to Flagg the back pay which he is due for the period between January 1, 2001 and May 6, 2002, i.e., $45,366.95, and any interest he is entitled as a matter of law.
On the other hand, we affirm that portion of the December 8, 2008 order denying Flagg's application for counsel fees. As noted by the Commission, the primary issue in any disciplinary appeal is the merits of the charges not the penalty imposed. Here, the disciplinary charge was well founded. We, therefore, find no error in the decision to deny counsel fees.
Affirmed in part; reversed in part.