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November 29, 2010


On appeal from a Final Administrative Decision of the Civil Service Commission, CSC Docket No. 2009-2331.

Per curiam.


Submitted October 6, 2010 - Decided Before Judges Lihotz and J. N. Harris.

Appellant Richard Holland was hired as a groundskeeper for Rowan University (Rowan). During his four-month trial period, Holland was removed from employment, effective November 7, 1997, for conduct unbecoming a public employee when Rowan learned he previously had been indicted and charged with drug offenses relating to his possession of over fifty grams of marijuana in a school zone. Holland successfully appealed his subsequent criminal conviction, which was overturned by the Supreme Court on appeal. State v. Holland, 176 N.J. 344, 363-65 (2003). The prosecutor declined to pursue the matter further and the indictment was dismissed. Additionally, Holland successfully appealed his disciplinary termination, which was also reversed in our unpublished opinion, In re Richard Holland, No. A-0338-05 (App. Div. September 7, 2007), certif. denied, 194 N.J. 267 (2008). Holland was reinstated as a groundskeeper at Rowan, but was released for unsatisfactory performance at the conclusion of his four-month working test period.

This matter reviews Holland's appeal from a final decision of the Civil Service Commission (CSC) issued on October 22, 2009, denying his application for back pay from June 12, 1997 until reinstatement on March 13, 2008, and limiting awarded counsel fees and costs. Following our review of the arguments on appeal, in light of the record and applicable law, we affirm.

We briefly recite the factual background leading to the administrative determination under review. On August 19, 1995, Holland was arrested for possession of a controlled substance in a school zone, N.J.S.A. 2C:35-7; possession with intent to distribute, N.J.S.A. 2C:35-5; and operation of a controlled dangerous substance manufacturing facility, N.J.S.A. 2C:35-4.

Holland, supra, slip op. at 2. Thereafter he submitted an application for employment and was hired by Rowan as a groundskeeper, subject to a four-month trial period. Ibid. When Rowan learned of Holland's pending criminal matter, it issued a Preliminary Notice of Disciplinary Action, temporarily suspending him from employment. Ibid. Following Holland's conviction, Rowan issued a Final Notice of Disciplinary Action, terminating Holland's employment because he was convicted of a crime, N.J.A.C. 4A:2-2.3(a)(5), and had engaged in conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6). Id. at 3.

Holland separately appealed the termination of employment and the criminal conviction. Ibid. The administrative matter was stayed pending appeal of the judgment of conviction. Almost five years later, the Supreme Court reversed Holland's criminal conviction.

Agency review of his termination resumed and an initial decision recommending reinstatement was issued by an Administrative Law Judge (ALJ). The ALJ noted the basis of dismissal could not be supported as Holland's conviction had been overturned and the conduct occurred prior to his public employment. The final agency decision rejected the ALJ's recommendation and upheld Holland's termination. He appealed.

In our review, we determined the plain meaning of N.J.A.C. 4A:2-2.3(a)(6) required the cited unbecoming conduct to have occurred while employed by the public entity and we reversed the agency's contrary interpretation. Holland, supra, slip op. at 9.

On March 13, 2008, Holland was reinstated and began a new working test period. Holland submitted a request for back pay and counsel fees incurred during the litigation. See N.J.A.C. 4A:2-2.10 and N.J.A.C. 4A:2-2.12. Specifically, Holland sought $250,698.73 in back pay for the period June 13, 1997 through March 13, 2008, and counsel fees incurred throughout the administrative proceedings as well as during appellate review totaling $52,175. Holland was required to file an affidavit of monies he earned from alternative employment during this period, his attorney fee engagement letter and a certification of the professional services rendered. Further, Holland responded to interrogatories propounded by Rowan regarding his employment since termination.

On October 22, 2009, the CSC denied Holland's request for back pay, stating it could not be assumed Holland would have been awarded full-time employment after the four-month trial period, so his claim was limited to the test period. The CSC also determined Holland had failed to mitigate his loss by securing alternative available employment and was denied back pay. N.J.A.C. 4A:2-2.10(d)(4). The CSC awarded $5,220 in counsel fees to the law firm who had represented Holland in the initial appeal before the CSC's predecessor agency, the Merit System Board (MSB).*fn1 This appeal ensued.

Our role in reviewing a final decision reached by an administrative agency is limited. University Cottage v. Dept. of Envtl. Protection, 191 N.J. 38, 48 (2007); In re Taylor, 158 N.J. 644, 656 (1999). We must give deference to a final agency decision, unless it is arbitrary, capricious, unsupported by substantial credible evidence in the record, or in violation of express or implicit legislative policy. In re Herrmann, 192 N.J. 19, 27-28 (2007); Taylor, supra, 158 N.J. at 656-57; Karins v. City of Atl. City, 152 N.J. 532, 540 (1998); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

We defer to the agency's findings if they could reasonably have been reached on sufficient credible evidence in the record, "considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge [] their credibility." Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

Moreover, "courts afford substantial deference to an agency's interpretation of a statute that it is charged with enforcing." R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999). We, however, are "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Taylor, supra, 158 N.J. at 658 (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). An agency decision that is manifestly erroneous is not entitled to judicial deference and must be set aside. L.M. v. State, Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). Finally, we have no power to act independently as an administrative tribunal or to substitute our judgment for that of the agency, but we will reverse "when necessary to bring the agency's action into conformity with its delegated authority." In re Polk, 90 N.J. 550, 578 (1982).

Holland argues that because neither the legislature nor the courts have limited back pay awards, upon reinstatement, to the working test period, the CSC's determination must be reversed. He also maintains he sufficiently mitigated his damages entitling him to back pay and full reimbursement of counsel fees and costs.

Pursuant to N.J.S.A. 11A:2-22, the CSC is given the authority to award back pay and benefits to reinstated employees. The CSC has adopted regulations implementing this authority, specifically to award back pay to those employees who have had a disciplinary-based termination reversed by the agency or courts. N.J.A.C. 4A:2-2.10 to -2.12. In particular, N.J.A.C. 4A:2-2.10 states in relevant part:

(a) Where a disciplinary penalty has been reversed, the Commission shall award back pay, benefits, seniority or restitution of a fine. Such items may be awarded when a disciplinary penalty is modified.

(e) Unless otherwise ordered, an award of back pay, benefits and seniority shall be calculated from the effective date of the appointing authority's improper action to the date of the employee's actual reinstatement to the payroll.

When reinstating an employee who had been terminated during an initial work period, past MSB decisions have limited its back pay award to the test period. We need not consider the applicability of these decisions to the present matter. Our review of the CSC's denial of a back pay award determines it was based on Holland's failure to engage reasonable efforts to mitigate damages by seeking suitable alternate employment during the separation period.

The applicable regulations provide that any back pay grant awarded under N.J.A.C. 4A:2-2.10(a) must be reduced by any monies earned. N.J.A.C. 4A:2-2.10(d)(3). Additionally, obligations are imposed on employees seeking back pay to affirmatively act.

Where a removal or a suspension for more than 30 working days has been reversed or modified or an indefinite suspension pending the disposition of criminal charges has been reversed, and the employee has been unemployed or underemployed for all or a part of thee period of separation, and the employee has failed to make reasonable efforts to find suitable employment during the period of separation, the employee shall not be eligible for back pay for any period during which the employee failed to make such reasonable efforts. [N.J.A.C. 4A:2-2.10(d)(4).]

"Reasonable efforts," defined by N.J.A.C. 4A:2-2.10(d)(4)(ii), may include, but not be limited to, reviewing classified advertisements in newspapers or trade publications; reviewing Internet or on-line job listings or services; applying for suitable positions; attending job fairs; visiting employment agencies; networking with other people; and distributing resumes.

Understanding these requirements, we examine the facts regarding Holland's employment efforts when first terminated from Rowan.

In his answers to interrogatories, Holland states that for various periods of time he was turned down for jobs, although he was actively seeking and available for work. Holland asserted his search for gainful employment was hampered because of the "pending indictable criminal case and with the stigma of disclosing on all applications that he was terminated for conduct unbecoming a public employee." He offers no information regarding work efforts from 1995 through 1997, other than his social security record reflecting gross wages of $3,574, $6,726, and $1,763. In 1998, he worked as a truck driver for J.G. Morris in Philadelphia, earning $450 per week. Although employed in 1999, Holland recites no details regarding that job, stating only that he suffered a disabling injury and received worker's compensation benefits from 1999 to 2001. Thereafter, Holland suggests he was actively seeking work while staying home to care for his girlfriend's disabled child.

In support of its position that Holland had failed to make reasonable efforts to mitigate, Rowan submitted a Vocational Economic Evaluation Report prepared by Gary A. Young, a vocational expert, who identified available employment suitable for Holland's medical history, age, vocational skills and education offered during the relevant period. Young examined published statistics and employment opportunities advertised in local newspapers from 1995 through 2008, representing "realistic choices" for employment available to Holland, understanding his past work experiences as a landscaper, farm laborer, delivery driver, equipment operator and chemical facility employee. Young opined these opportunities posed jobs paying a higher wage than that received while working for Rowan, which was between $395 to $421 per week. Young concluded, [a]ccording to the statistical analysis and calculation provided above, Mr. Holland could have earned a total of $285,010 in gross wages during the period 1997 through 2007, had he sought and obtained suitable available employment in the Philadelphia Metropolitan area. Holland's earnings from such employment would have fully offset his loss of earnings as a ground worker at Rowan University during the same ten year period.

The CSC examined the evidence and the totality of the circumstances, N.J.A.C. 4A:2-2.10(d)(4)(iv), placing the burden of proof upon Rowan. N.J.A.C. 4A:2-2.10(d)(4)(v). The CSC credited Young's report, finding it adequately demonstrated there were ample employment opportunities offered within the geographic area, representing "suitable employment" commensurate with Holland's skills, paying wages of at least $400 per week.*fn2 The CSC also noted Holland failed to "present any specific information" to support his contention that his termination limited his employment prospects or, otherwise, document his actual efforts to seek employment. Thus, the CSC found Rowan had satisfactorily proven jobs were available and Holland had not properly sought them. The CSC concluded mitigation had not occurred, precluding an award of back pay.

We reject Holland's challenge to the CSC's conclusion. We disagree with the contention that the CSC ignored his proofs showing an inability to obtain suitable employment.

In examining a similar claim that despite diligent efforts the wrongfully terminated employee was unable to find suitable employment, we observed

[t]he considerations that [appellant] says make him unemployable are hardly unique among discharged State employees seeking reinstatement. Every employee in that situation must explain the reasons for his termination. Every employee in that situation is seeking reinstatement. If those considerations were enough to obtain full back pay, with no mitigation, the doctrine would become irrelevant in the Merit System area. [O'Lone v. Dep't of Human Servs., 357 N.J. Super. 170, 175-76 (App. Div. 2003).]

Holland's generalized testimony expressing his unsuccessful attempts is insufficient and does not show diligence to overcome the established proofs of job availability. Our review of this record discerns the CSC's determination, that Rowan had sustained its burden of proof presenting suitable substitute employment at an equal or higher rate of pay was available but Holland had not made reasonable efforts to become employed, was not arbitrary, capricious, or unsupported by the substantial credible evidence in the record. Herrmann, supra, 192 N.J. at 27-28. We have no basis to interfere with the agency's decision. Taylor, supra, 158 N.J. at 656-57.

Holland additionally objects to the amount of the attorney's fees award, arguing fees charged by appellate counsel should be paid because he prevailed on all issues. We disagree.

Counsel fees incurred for representation during the administrative proceedings may be awarded by the CSC. N.J.A.C. 4A:2-2.12(a). However, N.J.A.C. 4A:2-2.12(f) explicitly prohibits any award for legal services rendered "on appeal or [] incurred in furtherance of appellate court review[.]" See also Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 497 (App. Div. 2001). In keeping with its authority, the CSC awarded attorney's fees, at a rate prescribed in N.J.A.C. 4A:2-2.12(c) and (e), for work relevant to the administrative proceedings.

Holland's suggestion that fees should have been awarded for the appellate proceedings because our reversal required a return to the MSB, lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(E)(1)(e).

As to the fees applicable to the proceeding then under review by the CSC, it noted Holland's fee agreement with counsel gave Holland a choice: he could elect to pay a contingency fee representing one-third of any back pay awarded or, actually pay for services at an hourly rate. The CSC correctly found "no indication in the record that Holland selected this [latter] option[,]" eliminating any fee award. See N.J.A.C. 4A:2-2.12(d) (limiting fee awards by the terms of counsel's fee agreement).

Finally, Holland provides no basis to relax the limitation period stated in Rule 2:11-4, requiring fee applications be submitted within ten days following our determination on appeal. See Burris, supra, 338 N.J. Super. at 497-98 (relaxing the limitations period in the interest of justice as a result of extenuating circumstances presented). The claimed entitlement to file a late fee request is rejected.


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