On appeal from a Final Administration Action of the Civil Service Commission, CSC Docket No. 2008-3389.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Simonelli.
Appellant Bruce Cornish appeals from the March 13, 2009 final decision of respondent Civil Service Commission denying an award of back pay for the period of his suspension from his employment as a police officer with the City of Millville Police Department. We affirm.
Appellant has been employed by the City as a police officer since 1992. On July 26, 2005, his now ex-wife obtained a domestic violence temporary restraining order against him. On August 4, 2005, after a non-jury trial the court entered a final restraining order (FRO) against appellant. As a result, appellant was prohibited from carrying a firearm pursuant to N.J.S.A. 2C:25-17 to -35 and Attorney General directives Nos. 2000-3 and -4.
Appellant had four disciplinary actions pending against him at the time the FRO was entered. He faced charges of failing to properly notify a superior officer of a Superior Court complaint; making inappropriate phone calls to a third party while on duty using a department phone; attempting to undermine the credibility of a supervisor; unsafe and insubordinate conduct toward a firing range supervisor; leaving the firing line without clearance from a supervisor; and failing to obey the commands of a supervisor.
Based on the FRO, which prohibited appellant from possessing a firearm and thus prevented him from performing his duties as a police officer, the City instituted a fifth disciplinary action on August 24, 2005, charging him pursuant to N.J.A.C. 4A:2-2.3(a)(3), (6) and (11) with inability to perform duties, conduct unbecoming a public employee, and other sufficient cause-unfit for duty. The City sought appellant's termination and suspended him without pay pending a departmental hearing, which it scheduled for September 15, 2005. Because appellant had appealed the FRO, he requested that the hearing be postponed pending resolution of the appeal.
The City's attorney agreed to resolve all pending disciplinary actions except those stemming from the FRO. In a December 8, 2005 letter to appellant's attorney, the City's attorney confirmed the parties' agreement to postpone the disciplinary hearing in that action pending appellant's appeal of the FRO, stating as follows:
It is my understanding that the domestic violence order is currently pending in the Appellate Court. I agree that it should not be the subject of a disciplinary action for termination until there is a final disposition, of course with the proviso that as long as [appellant] can not carry a weapon, he will be suspended without pay.
Appellant pled guilty to the pending disciplinary charges, and received various periods of suspension. As to the charges stemming from the FRO, in a December 9, 2005 letter to appellant's attorney, the City's attorney confirmed that
The remaining termination charge for which the employee is currently suspended without pay relates to a Superior Court Judge's finding of a violation of the domestic violence laws whereby a final order of restraint was entered prohibiting the employee from carrying a weapon. That finding is currently pending in the Appellate Court and will be dispositive as relates to the termination issue. Since the employee is suspended pending the Appellate Court decision without pay, the cumulative days of suspension will act retroactively and concurrent with the employee's suspension currently without pay.
On September 26, 2006, we reversed and vacated the FRO. In a September 27, 2006 letter to the City's attorney, appellant's attorney stated as follows:
As you may recall, last December we agreed to hold off addressing the termination disciplinary matter that was pending for [appellant] while the Appellate Division was considering his appeal of the [FRO]. The decision in that matter was issued yesterday and the FRO was dismissed and the case was reversed on the merits. . . . As such, it is ...