In the Matter of Dumis Barreau, Judiciary, Vicinage 5, Essex County CSC Docket No (Civil Service Commission, decided February 24, 2010)

Transcription

1 In the Matter of Dumis Barreau, Judiciary, Vicinage 5, Essex County CSC Docket No (Civil Service Commission, decided February 24, 2010) Dumis Barreau, a Senior Probation Officer with the Judiciary, Vicinage 5, Essex County, represented by Nora R. Locke, Esq., requests back pay for the period of his indefinite suspension, commencing on July 3, By way of background, the appellant was served with a Notice of Immediate Suspension Criminal on July 3, 2007, which advised that he was being indefinitely suspended from employment pending the disposition of criminal charges against him. The suspension was based on the appellant s June 26, 2007 arrest on charges of tampering with a witness and hindering the apprehension of a criminal in violation of N.J.S.A. 2C:28-5(a)2 and N.J.S.A. 2C:29-3(a)3, respectively. Specifically, it was charged that, following a shooting in which the appellant s brother was a suspect, the appellant visited the victim and the victim s mother in an attempt to dissuade the victim from identifying his brother as the perpetrator. 1 On July 5, 2007, the appellant was served with a Preliminary Notice of Disciplinary Action (PNDA). A departmental hearing regarding the propriety of the appellant s indefinite suspension was conducted on August 30, Following the hearing, the appellant was served with a Final Notice of Disciplinary Action (FNDA), dated September 28, 2007, upholding the indefinite suspension. On November 13, 2007, the criminal charges against the appellant were dismissed, and on November 27, 2007, he was reinstated to his position. On March 20, 2008, the appellant was served with a PNDA, charging him with conduct unbecoming a public employee, other sufficient cause, and violations of departmental regulations, based on the conduct underlying his arrest. An FNDA dated October 10, 2008 upheld the charges and imposed a 60-day suspension, which was reflected as served from August 28, 2007 to November 26, The appellant s appeal of his 60-day suspension is currently pending at the Office of Administrative Law. In the instant request, the appellant seeks back pay for the period of his indefinite suspension that exceeded his 60-day suspension. The appellant contends that, pursuant to N.J.A.C. 4A:2-2.10(c), he is entitled to back pay since the criminal complaint against him was dismissed. The appellant asserts that he currently supports his wife, his two children, his 1 It is noted that the victim died on August 31, 2007, and his mother passed away on September 23, 2007.

2 mother, and his 18-year old brother, and he claims that the appointing authority s failure to provide him with his back pay award has caused him to miss mortgage payments. As a result, the multi-family dwelling where his family resides is currently in foreclosure, and he owes upwards of $18,000 in order to keep the family home. The appellant also seeks an award of interest and counsel fees due to the appointing authority s blatant disregard of their acknowledged obligation to pay back pay. In addition, the appellant submits numerous pieces of correspondence with the appointing authority wherein he sought to resolve the back pay issue. Specifically, in a letter dated November 30, 2007, just after his reinstatement, the appellant requested back pay and benefits for the period of his indefinite suspension in light of the dismissal of the criminal charges against him. He renewed his request via on January 11, Shortly thereafter, the appointing authority verbally made a settlement offer to the appellant on January 25, 2008, which the appellant rejected. The record reflects that the appellant again spoke to the appointing authority on February 29, 2008, and he followed up that conversation with an on March 7, 2008, reiterating his position that he would not accept the appointing authority s settlement offer. The appellant again renewed his request for back pay by letter dated October 8, 2008, following his departmental hearing on the administrative disciplinary charges. The appellant also supplies correspondence dated July 7 and July 21, 2009, wherein he continued to assert his entitlement to back pay. In response, the appointing authority, represented by Thomas Russo, Esq., initially argues that the appellant s request is untimely pursuant to N.J.A.C. 4A:2-1.1(b), which provides that an appeal must be filed within 20 days after either the appellant knew or should reasonably have known of the decision, situation, or action being appealed. Specifically, it asserts that the criminal charges against the appellant were dismissed on November 13, 2007, and he was reinstated to employment on November 27, However, he failed to file the instant petition seeking back pay until August 20, Although the appointing authority notes that the parties engaged in settlement negotiations after the appellant s reinstatement, it maintains that the appellant should have recognized that a settlement could not be reached when he was served with the March 20, 2008 PNDA, seeking a 60-day suspension on administrative disciplinary charges. Moreover, the appointing authority argues that the instant request is untimely if the October 10, 2008 date of service of the FNDA commenced the time period for filing the instant petition. As to the merits, the appointing authority contends that it acted appropriately in accordance with N.J.A.C. 4A:2-2.10(c)2. Specifically, it

3 underscores that N.J.A.C. 4A:2-2.10(c)2 authorizes an appointing authority to deny back pay for good cause for up to six months where an employee has been suspended indefinitely, and the criminal charges are ultimately dismissed. The appointing authority argues that good cause has been established here. In this regard, it contends that while the criminal charges were administratively dismissed, the appellant was not exonerated of the serious criminal charges against him. It also emphasizes that the appellant is employed as a Senior Probation Officer, and he is held to a high standard of ethical behavior both on and off the work premises, a standard which he breached by his conduct here. CONCLUSION Initially, with regard to the timeliness of the instant petition, there is no jurisdictional statutory timeline within which a party is required to pursue a request for back pay. However, N.J.A.C. 4A:2-1.1(b) provides that an appeal must be filed within 20 days after the appellant has notice or reasonably should have known of the decision, situation, or action being appealed, and N.J.A.C. 4A:1-1.2(c) provides that a rule may be relaxed for good cause. In the instant matter, the appellant s indefinite suspension ended on November 27, 2007, when he was reinstated to employment after the dismissal of the criminal charges against him. The record reflects that the appellant immediately sought an award of back pay via correspondence to the appointing authority on November 30, The record further demonstrates that during the time period from his reinstatement until the filing of the instant petition in August 2009, the appellant repeatedly made efforts to pursue his claim for back pay. It must also be emphasized that the parties engaged in settlement negotiations, which were ultimately unsuccessful. Thus, under the circumstances presented, the Commission finds that the appellant s petition for back pay was timely filed. See In the Matter of Daniel Soto, Docket No. A T5 (App. Div. November 8, 2004); In the Matter of Joanne Annacone (MSB, decided April 9, 2008). N.J.A.C. 4A:2-2.10(c) provides that where 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. N.J.A.C. 4A:2-2.10(c)2 provides: Where disciplinary action has been taken following disposition of the complaint or indictment, such items shall not be awarded in case of removal. In case of suspension, where the employee has already been suspended for more than six months pending

4 disposition of the complaint or indictment, the disciplinary suspension shall be applied against the period of indefinite suspension. The employee shall receive back pay for the period of suspension beyond six months, but the appointing authority may for good cause deny back pay for the period beyond the disciplinary suspension up to a maximum of six months. In the instant matter, the appellant was suspended, pending the outcome of criminal charges against him, commencing on July 3, The criminal charges were dismissed on November 13, 2007, and he was promptly reinstated to employment on November 27, Thereafter, the appellant was charged administratively for the conduct underlying the criminal charges, and after a departmental hearing, he received a 60-day suspension. The 60-day suspension was recorded as served from August 28, 2007 to November 26, The appellant seeks back pay for the remaining period of his indefinite suspension, July 3 through August 27, The appointing authority maintains that it appropriately withheld back pay pursuant to N.J.A.C. 4A:2-2.10(c)2, emphasizing the serious nature of the criminal charges, the fact that the appellant was not exonerated after a trial, and the nature of his position as a Senior Probation Officer. In this regard, it must be emphasized that the criminal charges against the appellant were extremely serious in nature and involved his alleged interference with a criminal investigation in which his brother was a suspect. As a Senior Probation Officer, the appellant s alleged actions were particularly egregious. Moreover, it cannot be ignored that the record does not indicate precisely why the charges were ultimately dismissed, but it is clear that it was an administrative dismissal, not a finding that the appellant was not guilty following a trial. Further, it is evident that the appointing authority had ample cause to separate the appellant from employment while these serious charges were pending. The appointing authority also promptly reinstated the appellant to employment following the dismissal of the criminal charges, and it only imposed a 60-day suspension for the appellant s conduct, demonstrating that it has acted in good faith throughout these proceedings. Based on these circumstances, the Commission finds that the appointing authority has demonstrated good cause to deny back pay for the period beyond the appellant s disciplinary suspension up to six months in accordance with N.J.A.C. 4A:2-2.10(c)2. Since the appellant s indefinite suspension lasted for less than five months, he is, therefore, not entitled to any back pay for that period. ORDER

5 Therefore, it is ordered that this request be denied. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.