On appeal from a Final Administrative Decision of the Civil Service Commission, CSC Docket No. 2009-2331.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 Additionally, Holland successfully appealed his disciplinary termination, which was also reversed in our unpublished opinion, In re Richard Holland, No. A-0338-05 (App.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 ...