New Jersey Civil Service Disciplinary Appeals
A main goal of the New Jersey Civil Service Act is to ensure that employment decisions are based on merit and fitness, and therefore to prevent discrimination, political cronyism, corruption and nepotism from being a consideration. Thus, the Legislature has given civil service employees the ability to appeal most employer imposed discipline to the New Jersey Civil Service Commission.
Right to Appeal Major Discipline to the New Jersey Civil Service Commission.
If an employer issues a final notice of disciplinary action (FNDA) imposing “major discipline” – termination, demotion or a suspension or fine of more than five days – the employee may appeal to the New Jersey Civil Service Commission. Suspensions or fines of five days or less constitute “major discipline” only if the total number of days suspended or fined in a calendar year is 15 days or more. If the employee receives more than three suspensions or fines of five or less days in a calendar year, the last suspension or fine is appealable.
Civil Service disciplinary appeals must be filed with the New Jersey Civil Service Commission in writing within 20 days from receipt of the FDNA or within a “reasonable time” if no written decision is provided. The Commission cannot accept untimely appeals.
Appeals must state the reason for the appeal and be signed by the person filing the appeal or her representative. Parties may be required to give any additional information upon request. The Civil Service Commission provides a form for appeal of major discipline. The form is not required, but if it is not used, the same information is required, plus a description of the action being appealed, a statement of the reasons for the appeal and the relief which the employee requests
Right to Appeal Minor Discipline to the New Jersey Civil Service Commission in State Government Service.
If a union contract does not apply, a State of New Jersey employee who receives minor discipline may appeal to the New Jersey Civil Service Commission within five days after she receives notice. The hearing must be held within 30 unless adjourned on the parties’ consent. The burden of proof is on the employer. The Commission is required to render a final written disposition of the charges within 20 days after the hearing. Failure by the Commission to make a decision within this 20 day period constitutes a denial of the appeal.
If a union contract provides for a grievance procedure for minor discipline, effected state employees may utilize that procedure. A state employee covered by a union contract may also appeal to the Commission within 20 days after departmental disciplinary proceedings are finished, provided the employee waives any further appeal rights under the union contract. State employees may also appeal grievances to the Commission within 20 days after Step Two procedures have concluded. The employee is required to present issues of general applicability about the interpretation of law, rule or policy, or the appeal may be dismissed.
Appeal of Minor Discipline in Local Government Service.
Local government civil service employees do not have the right to appeal minor discipline to the Civil Service Commission. Rather, they may request review through their employer’s procedures or as provided in a controlling union contract. Other than that, New Jersey civil service law provides no remedy. However, New Jersey courts have held that in such a case the employee may seek relief by way of an action in lieu of prerogative writ to the Law Division of the Superior Court of New Jersey. Actions in lieu of prerogative writ must be filed within 45 days.
An employee may be represented by an attorney or by a representative, including a union representative, at any stage of the disciplinary process. Representation is always recommended.
Commission hearings are conducted de novo. This means the Commission will look at the evidence without deference to the employer and make its own decision. The formal rules of evidence do not apply. The Commission may rely upon the “residuum rule”, and hearsay is admissible provided that there is “a residuum of legal and competent evidence  in the record.” Hearings are limited to the charges made below; new charges may not be brought by the authority on the appeal.
Major discipline hearings will be heard by the Commission or referred to the Office of Administrative Law (OAL) for hearings before an administrative law judge (ALJ). When minor discipline meets the requirements to be appealed to the Commission, they may be reviewed by the Commission and a decision made on the papers submitted, or it may be referred to the OAL. When a hearing is not required by and the Commission does not find that a material dispute of fact, an appeal will be reviewed on a written record.
New Jersey Civil Service Commission Action on OAL Decision.
ALJs do not issue final opinions; they issue recommended decisions which the New Jersey Civil Service Commission may adopt, reject or modify. The Commission’s decision becomes the final agency action which may be appealed to the Appellate Division of the Superior Court. If the Civil Service Commission does not issue a final decision within 45 days after the ALJ’s recommended decision, it will be deemed adopted and affirmed by the Commission.
Depending on the particular circumstances, the Commission may award a successful employee-appellant back pay, benefits, seniority, restitution of a fine, and reasonable attorneys fees. If an employee was wrongfully terminated, she may be reinstated to his prior position; in such case, there will be deemed to have been no vacancy and therefore no permanent appointment could have been made. When a municipal civil service police officer was suspended because of pending criminal charges, the officer must receive back pay, benefits and seniority if the charges are dismissed.
Our New Jersey employment lawyers represent government employees in all types of civil service appeals, as well as all types of employment litigation, arbitration and mediation. 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 civil service attorneys. We can help.