Opinion
No. ESX-L-5379-09
Decided: January 25, 2010
Joseph Triarsi, Esq., Attorney for Plaintiff.
Steven Olivo, Esq., Attorney for Defendant.
OPINION
I. STATEMENT OF MATERIAL FACTS
Plaintiff Michael Black was employed by the City of Newark ("City") as a Police Officer from 1995 until his involuntary retirement on February 15, 2005 due to a serious head injury sustained in an off-duty motorcycle accident in 1996. Black appealed that decision to the Police and Fire Retirement System ("PFRS") and a hearing was held in the Office of Administrative Law ("OAL"). After the hearing in the OAL, the Hon. Leslie Z. Celentano, ALJ, recommended reversal of the involuntary retirement decision. The PFRS, subsequent to the receipt of exceptions, remanded the matter to the OAL on March 13, 2007, at which time the City intervened, seeking to call witnesses on the issue of a continuing accommodation. On or about November 24, 2008, Judge Celentano once again found that the decision involuntarily retiring Michael Black should be reversed, and that he should be reinstated with back pay and payment of counsel fees. Despite exceptions being filed on behalf of the City, this time the PFRS elected to adopt Judge Celentano's decision on February 10, 2009. Neither party appealed the decision. Michael Black was reinstated as a police officer on March 9, 2009, and is now receiving his regular paycheck.
The City has received the figures for Officer Black's earnings while he was not working for the City, and also supporting documentation for counsel fees claimed. The City also has the figures for what Black would have earned while working. Neither the OAL nor the PFRS specifically addressed the issue of the amount of back pay owed Plaintiff; similarly, neither entity addressed the specific amount of counsel fees owed Black by the City.
In July 2009, Plaintiff's counsel filed an Order to Show Cause seeking immediate payment of specific amounts of back pay and counsel fees owed Plaintiff. The Hon. Donald Goldman heard the Order to Show Cause on its return date of September 25, 2009 and denied the relief requested, but did not dismiss the Complaint, stating that the parties could file motions or engage in discovery.
Plaintiff's counsel thereafter filed this Motion for Summary Judgment. Defense counsel argues in its Cross-Motion that this Court has yet to acquire jurisdiction over these questions and, as such, the matter should be remanded to the PFRS for determination of how much back pay and counsel fees are owed.
II. DISCUSSION 1. Superior Court has Jurisdiction
Defendant asserts that the Superior Court does not have jurisdiction over the matter. Plaintiff asserts that this is an enforcement action and this Court has exclusive jurisdiction to enforce a final decision of an administrative agency.
The Administrative Law Judge issued a decision in this matter, stating:
It is therefore ORDERED that the determination of the respondent Board of Trustees of the Police and Firemen's Retirement System which mandatorily retired the petitioner, Officer Michael Black, from his position as a police officer with the City of Newark based upon petitioner's purported lack of mental capacity to perform his duties be and is hereby REVERSED.
It is further ORDERED that appellant be awarded back pay for the period of time commencing from the date of his involuntary retirement up to and until the date of his reinstatement. As he has prevailed, appellant is entitled to counsel fees pursuant to N.J.A.C. 4A:2-2.12 and it is so ORDERED.
Black v. Police and Firemen's Retirement System, OAL Dkt. No. TYP 03282-05, Initial Decision (October 27, 2006), aff'd Final Decision (November 24, 2008).
On February 10, 2009, the Board of Trustees of the PFRS adopted the Administrative Law Judge's decision, stating, "The Board of Trustees of the Police and Firemen's Retirement System at its meeting on February 9, 2009 . . . voted to adopt the ALJ's Initial Decision finding that Mr. Black is not totally and permanently disabled from the performance of his regular and assigned job duties as police officer with the City of Newark." Neither party appealed that final determination and the time to do so has expired, pursuant to New Jersey Court Rule 2:4-1(b). Since the PFRS adopted the decision of the Administrative Law Judge and the final determination was not appealed, the parties are bound by the decision that awarded Plaintiff back pay and counsel fees.
The City of Newark did not comply with the entirety of the OAL decision adopted by the PFRS. In accordance with that decision, the involuntary retirement of Plaintiff was reversed and Officer Black was returned to work in March of 2009. However, Defendant failed to comply with the other provisions, namely that they reimburse Plaintiff back pay and pay for his attorneys' fees. Moreover, the PFRS — quite unfairly, in the Court's view — now demands that the Plaintiff reimburse the pension payments he received during his involuntary retirement that amount to $114,903.97, without ensuring that the Plaintiff is reimbursed for the four years of pay he was deprived. Plaintiff asserts that these double pension reductions will cause him financial ruin.
Pursuant to R. 4:67-1 and R. 4:67-6, a Summary Proceeding may be brought in the Superior Court to enforce an administrative determination "by a party to the administrative proceeding in whose favor a written order or determination was entered affording that specific relief. ."R. 4:67-6(a)(2). Also, as stated by Judge Pressler, "the general design of the Rule is to vest the trial divisions of the Superior Court with broad jurisdiction to deal with enforcement proceedings, required to be initiated by way of summary action . . ." Matter of Valley Road Sewerage Com., 295 N.J. Super. 278, 290 ( citing Pressler, Current N.J. Court Rules, Comment on R. 4:67-6 (1997)), certif.granted, 151 N.J. 71, aff'd 154 N.J. 224 (1998).
This Court looks to the Administrative Code for guidance and governing case law to determine whether an enforcement action is appropriate in this case. New Jersey Administrative Code 4A:2-2.13 governs where certain law enforcement officers or firefighters have appealed a removal that has been reversed or modified. Plaintiff qualifies under this provision's definition of "law enforcement officer." See N.J.A.C . 4A:2-2.13(a)(1). The Code states,
If the Civil Service Commission grants the officer's or firefighter's appeal, the appointing authority shall immediately reinstate the appellant to employment, and the appellant shall receive his or her base salary, as well as, within 60 days of the issuance of the Commission's decision, all back pay, benefits, seniority, and counsel fees that may be due in accordance with N.J.A.C. 4A:2-2.10 and 2.12.
N.J.A.C. 4A:2-2.13(i)(4). Accordingly, in this case the City was required to determine the amount owed Plaintiff in accordance with the provided Code provisions and pay Plaintiff within sixty (60) days.
The Code provisions that govern how back pay is to be determined state:
When the Commission awards back pay and benefits, determination of the actual amounts shall be settled by the parties whenever possible. If settlement on the amount cannot be reached, either party may request, in writing, Commission review of the outstanding issue . . . See N.J.A.C. 4A:2-2.13 for situations in which certain law enforcement officers or firefighters have appealed a removal.
N.J.A.C. 4A:2-2.10(f)-(g). Similarly, the Code provision governing how counsel fees are to be assessed states,
The Civil Service Commission shall award partial or full reasonable counsel fees incurred in proceedings before it and incurred in major disciplinary proceedings at the departmental level where an employee has prevailed on all or substantially all of the primary issues before the Commission. When the Commission awards counsel fees, the actual amount shall be settled by the parties whenever possible . . . The attorney shall submit an affidavit and any other documentation to the appointing authority. If settlement on an amount cannot be reached, either party may request in writing, Commission review. See N.J.A.C. 4A:2-2.13 for situations in which certain law enforcement officers or firefighters have appealed a removal.
N.J.A.C. 4A:2-2.12 (a)-(b), (h)-(j). Both Code provisions clearly reference the law enforcement specific provision (N.J.A.C. 4A:2-2.13) that requires payment to Plaintiff within sixty (60) days. As previously stated, the City clearly failed to meet this requirement even though Plaintiff gave all the information to Defendant at the time of the PFRS decision.
Defendant argues that Plaintiff failed to exhaust his administrative remedies because he did not comply with Code provisions' requirements of requesting Commission review when the parties cannot come to an agreement on the amount owed. The Court finds this argument without merit because, in accordance with the Code provisions, Plaintiff supplied the PFRS with all the necessary documents, made numerous requests according to Plaintiff's counsel for payment, and went as far as to file a Complaint and Order to Show Cause for payment. These steps are sufficient to meet the Code's requirement of submitting a written request for review. Accordingly, Plaintiff has already exhausted his administrative remedies and this Court has jurisdiction over the matter as an enforcement action.
Further, it should be noted that the City does not concede that it owes Plaintiff anything — in clear contravention of the PFRS decision to adopt the Administrative Law Judge's decision. Clearly, remanding the case back to the PFRS for a review is not necessary and the Plaintiff would likely be left in a state of limbo pending the PFRS review. The City refuses to concede it owes anything let alone determine the amount, and the time has expired for Plaintiff to appeal the agency determination to the Appellate Division. Thus, jurisdiction is rightfully and lawfully with the Superior Court.
The issue of a Superior Court awarding back pay and counsel fees in an enforcement action where neither the Administrative Law Judge nor the agency that adopted the ALJ's decision specified the exact amount appears to be a matter of first impression in New Jersey. This Court, however, finds that the New Jersey case law and Administrative Code supports its decision to specify and award the amount owed to Plaintiff in such a case.
The Defendant argues that the issue of back pay and fees in Civil Service cases have been before the courts of this State many times, and each time the Courts have ruled that initial jurisdiction of those issues belongs before the Civil Service Commission. To support this contention, Defendant cites Mastrobattista v. Essex County Park Commission, 46 N.J. 138, 149-51 (1965) and Mason v. Civil Service Commission and City of Trenton, 51 N.J. 115 (1968). The Defendant's reliance on both decisions is misplaced as the case at bar is clearly distinguishable.
In Mastrobattista, the Civil Service Commission restored the officers to duty, but the opinion and orders of the Civil Service Commission made no mention of back pay. Id. at 141. The New Jersey Supreme Court further noted, "[w]hen the Civil Service Commission ordered that the appellants be restored to duty it should have dealt explicitly with the issue of back pay and mitigation. Its orders were silent as to those matters and it apparently filed no opinion when it denied the request for reopening."Id. at 150. The New Jersey Supreme Court then remanded the matter to the Civil Service Commission so it could consider and determine the issues of back pay and mitigation. Id. Here, the issue of back pay was explicitly dealt with and Plaintiff was awarded back pay from the day he was terminated until the day he was reinstated. Moreover, the issue of reimbursing the PFRS was explicitly decided by the Board of Trustees of the PFRS. Clearly, the issue of pay was decided and the time period for back pay was decided. Therefore, Mastrobattista is distinguishable from the present case.
In Mason, supra, the Supreme Court of New Jersey remanded to the Civil Service Commission a case involving the reinstatement of municipal employees for a rehearing on the issue of back pay and the amount of mitigation to be applied against the back pay. The primary issue, according to the Court, was "whether the Commission is empowered under R.S. 11:15-6 to apply the doctrine of mitigation to municipal employees in the classified civil service."Id. at 118. The Court found in the affirmative. The issue of the PFRS's authority is not at issue here.
Moreover, similar to Mastrobattista, the Court inMason found that the parties were not on notice that the matter of expenses would be considered, so at the Commission hearing no evidence or argument was given as to the matter. Therefore, the Court did not have the information to determine the back pay or the mitigation amount. The Court stated, "While this court has the power to take evidence as to these matters, R.R. 1:5-4, we think that the determination of the actual amount earned by appellants in outside employment during the period of their dismissal, and also what they should be allowed for expenses necessarily incurred, should be determined by the Commission." Id. at 168-169.
Defendant undoubtedly relies on this statement for the contention that the PFRS and not the Superior Court must decide the actual amounts owed. In the present case, however, the Superior Court has all of the requisite information to determine back pay and the amount of mitigation to be applied; indeed, it is the same information initially supplied to the PFRS. Neither party disputes these amounts as the Court elucidates in section 2 of this opinion. Similarly, with regards to the amount of counsel fees owed, that information was available to the PFRS as it is presently available to the Court here. As will be further explained in section 2 of this opinion, there is no genuine issue of material fact on the amount of counsel fees owed because the Administrative Code clearly sets forth the guidelines on how this amount is to be determined. Accordingly, while the New Jersey Supreme Court in Boss v. Rockland Electric Company et. al, 95 N.J. 33 (1983), stated that fact determinations are to be done by an administrative agency whenever possible, there are no facts in dispute that need to be remanded back to the PFRS for determination. Therefore, none of these cases cited by Defendant stand for the proposition that the Superior Court cannot determine the amount of back pay or counsel fees owed in this case.
2. Summary Judgment Framework
Motions for summary judgment are governed by Rule 4:46-2, which requires a court to grant summary judgment upon a moving party's showing "that there is no genuine issue as to any material fact challenged and that the moving party is entitled to judgment or order as a matter of law." In Brill v. Guardian Life Insurance, 142 N.J. 520 (1995), the New Jersey Supreme Court propounded the standard for granting summary judgment underR 4:46-2, holding that the judge must consider, "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational fact finder to resolve the alleged dispute in favor of the non-moving party." The burden is placed on the movant to exclude any reasonable doubt as to the existence of any genuine issue of material facts and all inferences of doubt are drawn against the moving party in favor of the opponent.Heller v. Hartz Mountain Industries, 270 N.J. Super. 143, 149 (Law Div. 1993). In the present matter, Plaintiff demonstrates that no genuine issue of material fact exists as to Defendant's obligation to pay Plaintiff and the amount owed to Plaintiff.
(a) Amount of Back pay Owed to Plaintiff
There is no genuine issue of material fact as to the amount of back pay Defendant owes to Plaintiff. Plaintiff states that he is owed $156,630.38 in back pay, which represents his pay from "the period of time commencing from the date of his involuntary retirement up to and until the date of his reinstatement" — the exact language ordered by the Administrative Law Judge in her decision and adopted by the PFRS. Plaintiff provided Defendant with all of Plaintiff's earnings information, as requested, at the time of the decision and this Court has all of these documents.
Both Defendant and Plaintiff agree that any reimbursement of back pay should be mitigated by the monies earned by the Plaintiff prior to his being reinstated. The exact amount of Plaintiff's earnings during this time has been provided by Plaintiff to the PFRS as well as to the Court. The amount is $25,995.47. There is no dispute as to the amount; Defendant states that Black should be entitled, at maximum, to the difference between the sums he actually received during the time he was not working for the Newark Police Department and sums he would have received had he actually worked, since there was no proof he worked a second job while working as a police officer which would have expanded his income. Accordingly, Defendant says that the court should not award him more than $130,634.91 as back pay. Plaintiff agrees.
In Perrella v. Board of Education, 51 N.J. 323 (1968), the Supreme Court of New Jersey addressed the matter of how to calculate the amount of back pay owed to Plaintiff in cases involving mitigation and counsel fees. The Court stated,
In Mastrobattista it was held that when a public employee with tenure was improperly dismissed, he was entitled to recover his lost back pay less his earnings in outside employment between the date of dismissal and date of restoration to his position. We recognized, however, that such an employee might well have been obliged to incur expenses and attorney's fees in order to vindicate his right to the position. In this event, whenever his back-pay award was to be mitigated by his outside earnings, it seemed just and equitable to give him a credit against the sum to be applied in mitigation of the reasonable counsel fee and expenses which he had paid or obligated himself to pay in the successful prosecution of his action. Thus his interim outside earnings less such fee and expenses would represent the factor to be applied in diminution of his back-pay recovery. This is the purport of Mastrobattista, as well as of Mason v. Civil Service Comm'n, supra.
Perrella, 51 N.J. at 344. Thus, we must turn to the amount of counsel fees Defendant owes Plaintiff to determine the final amount the Court will award to Plaintiff.
(b) Amount of Counsel Fees Owed to Plaintiff
Plaintiff's counsel has submitted an affidavit of the counsel fees Plaintiff has incurred in pursuing this action. Defendant claims that the fees requested by Black's counsel are not in compliance with the statute. The Administrative Code, N.J.A.C. 4A:2-2.12 (Counsel Fees) provides:
(a) The Civil Service Commission shall award partial or full reasonable counsel fees incurred in proceedings before it and incurred in major disciplinary proceedings at the departmental level where an employee has prevailed on all or substantially all of the primary issues before the Commission.
(b) When the Commission awards counsel fees, the actual amount shall be settled by the parties whenever possible.
(c) Subject to the provisions of (d) and (e) below, the following fee ranges shall apply in determining counsel fees:
1. Associate in a law firm: $100.00 to $150.00 per hour;
2. Partner or equivalent in a law firm with fewer than 15 years of experience in the practice of law: $150.00 to $175.00 per hour; or
3. Partner or equivalent in a law firm with 15 or more years of experience in the practice of law, or notwithstanding the number of years of experience, with a practice concentrated in employment or labor law: $175.00 to $200.00 per hour.
(d) If an attorney has signed a specific fee agreement with the employee or employee's negotiations representative, the attorney shall disclose the agreement to the appoint authority. The fee ranges set forth in (c) above may be adjusted if the attorney has signed such an agreement, provided that the attorney shall not be entitled to a greater rate than that set forth in the agreement. (emphasis added)
(e) A fee in the amount may also be determined or the fee ranges in (c) above adjusted based on the circumstances of a particular matter, in which case the following factors (see the Rules of Professional Conduct of the New Jersey Court Rules, at R.P.C. 1.5(a) shall be considered:
1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
2. The fee customarily charged in the locality for similar legal services, applicable at the time the fee is calculated;
3. The nature and length of the professional relationship with the employee; and
4. The experience, reputation and ability of the attorney performing the services.
(f) Counsel fees incurred in matters at the departmental level that do not reach the Civil Service Commission on appeal or are incurred in furtherance of appellate court review shall not be awarded by the Commission.
(g) Reasonable out-of-pocket costs shall be awarded, including, but not limited to, costs associated with expert and subpoena fees and out-of-State travel expenses. Costs associated with normal office overhead shall not be awarded.
(h) The attorney shall submit an affidavit and any other documentation to the appointing authority.
(i) If settlement on an amount cannot be reached, either party may request, in writing, Commission review.
(j) See N.J.A.C. 4A:2-2.13 for situations in which certain law enforcement officers or firefighters have appealed a removal.
Defendant contends that N.J.A.C. 4A:2-2.12(c) limits attorney fees to the amounts set forth in that section of the Administrative Code. However, a review of the entire provision indicates that the fees set forth in N.J.A.C. 4A:2-2.12(c) are subject to the provisions contained in N.J.A.C. 4A:2-2.12(d) and N.J.A.C. 4A:2-2.12(e). These provisions allow the Court to adjust the fee ranges set forth in N.J.A.C. 4A:2-2.12(c) in particular circumstances.
In this case, Plaintiff signed a Retainer Agreement with a firm agreeing to pay the $285.00 legal fee per hour for Mr. Walsh's services. Clearly, N.J.A.C. 4A:2-2.12(d) allows the Court to adjust the fee ranges set forth in N.J.A.C. 4A:2-2.12(c) to reflect the agreed fees between a party and a firm.N.J.A.C. 4A:2-2.12(e) establishes that the circumstances of a particular matter allows the Court to adjust the fee range set forth in N.J.A.C. 4A:2-2.12(c). The Certification of Thomas J. Walsh, Esq., the attorney for Plaintiff, details the basis to adjust the legal fees due to the circumstances of this matter and the Court finds these compelling. Moreover, the Retainer Agreement signed by the Plaintiff and his firm, which called for an hourly rate of $285.00, is not excessive to the rate under N.J.A.C. 4A:2-2.12(c). Therefore, the rate agreed by Plaintiff is reasonable and this Court has the authority under N.J.A.C. 4A:2-2.12(d) and N.J.A.C. 4A:2-2.12(e) to increase the hourly rate to $285.00 per hour as agreed by Plaintiff and his firm. The amount is $22,807.35 as of September 30, 2009.
Defense counsel argues that this amount should be reduced since nothing less than a .2 is billed and there are various entries on the billing sheet provided by the firm that appear to Defense counsel to be excessive. After reviewing all the entries, this Court finds them reasonable, and, as such, Defense counsel's request for reduction is rejected. There is no genuine issue of material fact as to this amount.
III. CONCLUSION
For the foregoing reasons, Plaintiff's motion for summary judgment is granted and Defendant's cross motion to remand the matter is denied. Accordingly, Defendant is ordered to pay Plaintiff $130,634.91 in back pay and $22,807.35 in counsel fees, plus the additional counsel fees accrued since September 30, 2009. Defendant must pay Plaintiff within thirty (30) days from the date of this Order, but may request an extension from the Court if necessary. Upon receipt of payment, Plaintiff must immediately reimburse those pension benefits it owes the PFRS.