IN THE MATTER OF EDWARD ANDERSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2324-04T22324-04T2

IN THE MATTER OF

EDWARD ANDERSON.

 

Submitted: January 11, 2006 - Decided:

Before Judges Fall and Grall.

On appeal from the final decision of the Merit System Board, DOP Docket Number 2005-1229.

Casale, Popp & Panzer, attorneys for appellant Edward Anderson (Lawrence E. Popp, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent Merit System Board (Michael J. Haas, Assistant Attorney General, of counsel; Pamela N. Ullman, Deputy Attorney General, on the brief).

PER CURIAM

Edward Anderson, a Senior Correction Officer at Mid-State Correctional Facility, appeals from a final administrative decision issued by the Merit System Board on December 16, 2004, partially granting and partially denying his application for back pay. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

As a result of criminal charges filed against him, resulting in administrative disciplinary proceedings, appellant was suspended from his position by the Department of Corrections (DOC) from May 18, 2001, through September 15, 2004. He returned to work on September 16, 2004.

The first suspension was the result of a criminal complaint filed against appellant on May 7, 2001, charging him with third-degree terroristic threats, N.J.S.A. 2C:12-3b. Administrative disciplinary charges were filed against him by the DOC, and appellant was indefinitely suspended, effective May 18, 2001, pending resolution of those charges. That criminal charge was ultimately dismissed on June 6, 2003, and, on June 11, 2004, the DOC withdrew all administrative disciplinary charges that had been filed against him relating to that incident.

However, while that criminal charge was still pending, on April 26, 2002, appellant was charged in Mercer County Indictment Number 02-04-0592 with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (counts one and two), and two counts of sexual assault, N.J.S.A. 2C:14-2b (counts three and four). Those offenses allegedly occurred between January 1, 2001, and July 11, 2001. As a result of those charges, the DOC filed corresponding administrative disciplinary charges against appellant and indefinitely suspended him, effective May 13, 2002, pending resolution of the charges.

On January 20, 2004, the aggravated sexual assault charges contained in counts one and two of Indictment Number 02-04-0592 were dismissed on the basis there was "insufficient evidence upon which to predicate successful prosecution of these charges."

On May 17, 2004, appellant was charged with the petty disorderly persons charge of harassment by offensive touching, N.J.S.A. 2C:33-4b, allegedly occurring between January 1, 2001, and July 11, 2001, involving the same victim and the same time period set forth in Indictment Number 02-04-0592. Appellant pled guilty to that charge on May 18, 2004, and on that same date the sexual assault charges contained in counts three and four of Indictment Number 02-04-0592 were dismissed on the basis that appellant "has pled and been sentenced on other charges. No useful purpose would be served by further prosecution of these charges."

As a result of his guilty plea to the harassment charge, on June 11, 2004, the DOC served appellant with a preliminary notice of disciplinary action based on administrative charge of conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)6. After a hearing was conducted thereon on August 4, 2004, and August 25, 2004, the DOC issued a final notice of disciplinary action dated September 9, 2004, suspending appellant for thirty working days.

On June 11, 2004, two final notices of disciplinary action were issued by the DOC. One withdrew the administrative disciplinary charges contained in the May 14, 2001 preliminary notice of disciplinary action, that had been based upon the May 7, 2001 terroristic threats complaint. The second one withdrew the administrative disciplinary charges contained in the May 2, 2002 preliminary notice of disciplinary action, that had been based upon the charges contained in Indictment Number 02-04-0592.

Thereafter, the parties had a dispute concerning the extent of appellant's entitlement to back pay. Appellant contended he was entitled to back pay for the entire period of suspension between May 18, 2001, and September 15, 2004, less the thirty working days suspension contained in the September 9, 2004 final notice of disciplinary action. Appellant claimed the sum of $200,473.27 was due to him, less any sums earned by him from other work during that period. The DOC agreed that appellant was entitled to back pay for the periods from May 18, 2001 to May 12, 2002, and from May 18, 2004 to September 15, 2004, but contended appellant was not entitled to back pay for the period from May 13, 2002 to May 17, 2004, because his guilty plea to the harassment complaint was based on the same allegations of improper conduct underlying the April 26, 2002 indictment. This dispute was submitted to the Merit System Board for resolution.

On December 16, 2004, the Board issued a final administrative decision, ordering the DOC to pay appellant the gross amount of $53,902.28 in back pay. In doing so, the Board stated, in pertinent part:

N.J.A.C. 4A:2-2.10(c) provides that:

[W]here an employee, other than a municipal police officer, has been suspended based on a pending criminal complaint or indictment, following disposition of the charges the employee shall receive back pay, benefits and seniority if the employee is found not guilty at trial, the complaint or indictment is dismissed, or the prosecution is terminated.

1. Such items shall not be awarded when the complaint or indictment is disposed of through Conditional Discharge, N.J.S.A. 2C:36A-1, or Pre-Trial Intervention (PTI), N.J.S.A. 2C:43-12 et seq.

Initially, the Board notes that the parties do not dispute that the appellant is entitled to back pay from May 18, 2002 and from May 18, 2004 through September 15, 2004, less a 30 working day suspension. In the instant matter, the appellant claims that he is also entitled to back pay from May 13, 2002 through May 17, 2004, since all the criminal charges originally lodged against him in the April 26, 2002 indictment were dismissed. The Board does not agree. The Board addressed a similar situation in In the Matter of Zachary Odumes (MSB decided March 13, 2003). In Odumes the Board agreed with the ALJ's determination that it would be inconsistent with Merit System rules and case law to award back pay to an employee who actually pled guilty to a lesser offense, when employees who resolve criminal charges through PTI or conditional discharge without actually entering a plea of guilty cannot receive back pay, benefits and seniority for the period of the indefinite suspension. . . . Moreover, it must be noted that the criminal charges against the appellant, which led to his indefinite suspension, were dismissed based on his guilty plea to a lesser offense. . . . Accordingly, the appellant has not provided any basis to conclude that he is entitled to back pay from May 13, 2002 through May 17, 2004.

Finally, there is no dispute in the record that appellant is entitled to a back pay award of $60,687.76 for the period of May 18, 2001 through May 12, 2002 and from May 18, 2004 through August 4, 2004. Pursuant to N.J.A.C. 4A:2-2.10(d)3, this amount is to be reduced by the amount of income earned by the appellant during the period of his separation from employment, $6,785.48. Accordingly, the appellant is entitled to a gross back pay award of $53,902.28.

[Other citations omitted.]

On appeal, appellant presents the following argument for our consideration:

POINT I

THE ADMINISTRATIVE DENIAL OF BACK PAY REPRESENTS AN ARBITRARY AND CAPRICIOUS FAILURE TO PROPERLY APPLY THE LAW AND FACTS, RESULTING IN AN INJUSTICE TO THE APPELLANT.

After analyzing the record in the light of the arguments advanced by the parties, we conclude that the issue presented by appellant is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(D) and (E), and we affirm substantially for the reasons set forth in the final administrative decision issued by the Merit System Board on December 16, 2004.

We add that to accept appellant's argument would be to permit the form of disposition elected by the prosecutor in a criminal matter, short of outright dismissal, to impact an award of back pay, contrary to the clear intent of N.J.A.C. 4A:2-2.10(c). We find nothing arbitrary, capricious or unreasonable in the decision rendered by the Board. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001); Burris v. Police Dep't, Township of West Orange, 338 N.J. Super. 493, 496 (App. Div. 2001); In re Hall, 335 N.J. Super. 45, 48 (App. Div. 2000), certif. denied, 167 N.J. 629 (2001).

Affirmed.

 

Apparently there was no appeal from this final notice of disciplinary action.

(continued)

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A-2324-04T2

February 2, 2006