Civil Service Disciplinary Appeals
Background
Government employees constitute the largest segment New Jersey’s workforce. Civil Service is therefore a vital component of New Jersey employment law.
The purpose of the New Jersey Civil Service Act is to make sure government employment decisions are based on merit, and to remove politics, discrimination, cronyism and nepotism from government hiring, promotion and discipline. New Jersey Civil Service Law and thus provides for an avenue of review of discipline. Likewise, because government is the employer in civil service disputes, when an employer takes major disciplinary action against a government employee due process requires an avenue for review, i.e., notice and the opportunity to be heard. In the New Jersey Civil Services system, that avenue for relief is an appeal to the New Jersey Civil Service Commission.
Major Discipline: Appeal to the Civil Service Commission
Major discipline is termination, demotion or a suspension or fine which is greater than five days. Individual fines or suspensions of five days or less constitute major discipline if the suspensions or fines total 15 or more days in a single calendar year.
When an employee receives a Final Notice of Disciplinary Action (FNDA) from her employer, she may appeal the discipline to the New Jersey Civil Commission. Appeals of major discipline must be filed with the Commission in writing within 20 days from the FDNA. If an FNDA is not provided from the employer, the employee must file her appeal with the Commission “within a reasonable time.” The Commission is without authority to accept untimely appeals.
Minor Discipline, State Service
State employees may appeal minor disciplines to the Civil Service Commission if no union contract applies. If a union contract has a grievance procedure for minor discipline, a state employee may use that procedure. A state employee covered by a union contract may also appeal to the Commission within 20 days after departmental disciplinary proceedings, but by doing so she waives further any appeal under the union contract. State employees may also appeal grievances to the Commission within 20 days after Step Two procedures have concluded.
Minor Discipline, Local Service
Local government employees, on the other hand, cannot appeal minor discipline to the Civil Service Commission. If a local government employer or a controlling union contract have procedures for appealing minor discipline, the employee must use them. The Civil Service Act provides no other avenue for local employees to appeal minor discipline. However, New Jersey courts have held that local employees may appeal minor discipline to the Law Division of the Superior Court of New Jersey by a process known as an action in lieu of prerogative writ. The action must be filed with the Superior Court within 45 days after the employer took its action or imposed its discipline.
Representation
An employee may be represented by an attorney of his choice or by another representative, including a union representative, at any stage of the disciplinary process. Representation by an attorney is always strongly recommended.
Review, Hearings
The Commission can decide disciplinary appeals itself on the record or refer them to the Office of Administrative Law (OAL) for a fact finding hearing by an administrative law judge (ALJ) if the employee requested a hearing in his notice of appeal. When a hearing is not required by law or regulation, and the Commission does not find a controlling dispute of fact, the Commission will decide the appeal on the documents submitted.
The Civil Service Commission hearings are conducted de novo. This means the Commission will look at the matter as if it were reviewing the evidence for the first time. The strict rules of evidence do not apply. The Commission may rely upon hearsay. New charges may not be brought by the employer on appeal. ALJs do not issue final opinions; they issue recommended decisions which the Civil Service Commission may adopt, reject or modify, both on liability and penalty.
Relief Available
If the Civil Service Commission finds that an employee was wrongfully terminated, it may reinstate her to her prior position. The Commission may also award a successful employee retroactive seniority, back pay, benefits and restitution of a fine and possibly attorney’s fees depending on the circumstances.
Contact Us
Our New Jersey employment attorneys represent New Jersey government employees in all aspects of New Jersey employment law and civil service law, including civil service disciplinary appeals. Call us at (973) 890-0004 or fill out the contact form on this page to schedule a consultation with one of our New Jersey Employment attorneys. We can help.