On appeal from a Final Decision of the Civil Service Commission, Docket No. 2008-3787. Mark W. Catanzaro, attorney for appellant Luzetta Golden.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 20, 2010
Before Judges Cuff and Fasciale.
Appellant Luzetta Golden is a corrections officer at the Burlington County Jail. Effective September 5, 2006, Golden was removed from this position. She contested the removal and the Merit System Board upheld the charges but reduced the penalty from removal to a ninety-day suspension.
Having been reinstated, Golden sought back pay. The parties contested the amount due to Golden. The Civil Service Commission (CSC)*fn1 resolved the dispute on the papers submitted by Golden and her employer. In its Final Administrative Action dated April 17, 2009, the CSC ordered the appointing authority to pay Golden $12,615.89 in back pay. In its order, the CSC explained that it reduced the back pay due to Golden for the period between August 5, 2006 and January 13, 2008, because she failed to make reasonable efforts to find suitable employment during this period.
On appeal, Golden argues that the CSC decision violated express and implied legislative policies of the Civil Service Act. She further contends that the application of N.J.A.C. 4A:2-2.10(d) requires a remand to allow her to establish the efforts she made to gain employment.
Having reviewed the record in its entirety, we hold that the facts found by the CSC are supported by substantial credible evidence in the record, Rule 2:11-3(e)(1)(D), and the legal issues presented by Golden in this appeal are without sufficient merit to warrant discussion in an written opinion, Rule 2:11-3(e)(1)(E). We add the following brief comment.
Golden was removed from her employment in 2005. In 2003, this court held that proof of the reinstated employee's efforts, or lack of effort, to obtain suitable employment during their separation from public employment was a prerequisite for an award of back pay. O'Lone v. Dep't of Human Servs., 357 N.J. Super. 170, 181 (App. Div. 2003). We also addressed the burden of proof each party bore to establish the existence of suitable jobs and the employee's efforts to obtain a position. Ibid. The rule announced in O'Lone governed all applications for back pay until the agency adopted a regulation to effectuate this ruling. We also anticipated that the agency could address the issue by rule and also address by rule the respective burden of proof of the employee and appointing authority. Ibid. Furthermore, any changes in the law, whether articulated in case law, statute, or rule, may be applied to ongoing disputes pursuant to the "time of decision" rule. S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 485 (App. Div. 2002).