Opinion
DOCKET NO. A-3535-13T2
08-18-2015
IN THE MATTER OF PATRICIA ACKLEY, JUDICIARY, VICINAGE 1, ATLANTIC-CAPE MAY COUNTY.
Patricia Ackley, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Pamela N. Ullman, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and Kennedy. On appeal from the Civil Service Commission, Docket No. 2012-3582. Patricia Ackley, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Pamela N. Ullman, Deputy Attorney General, on the brief). PER CURIAM
Appellant, a senior probation officer employed in Vicinage I of the Superior Court, was suspended from her employment for ten days on a charge that she failed to report for work. She challenged the suspension in proceedings before the Civil Service Commission (Commission). After trial in the Office of Administrative Law (OAL) but before the Commission rendered a final decision on appellant's challenge, the New Jersey Judiciary (judiciary) withdrew the charges and paid appellant back pay for the period of her suspension. Appellant sought an order requiring the judiciary to pay her counsel fees, but the Commission denied her application, holding that she was not a "prevailing party" because the judiciary withdrew the charges. We hold that the voluntary dismissal of the charges, in these circumstances, does not preclude an award of attorney's fees. Accordingly, we reverse and remand to the Commission to consider appellant's fee application under N.J.A.C. 4A:2-2.12.
I.
The facts in this case are straightforward and not in dispute. On April 4, 2011, appellant was suspended from her employment for ten days on charges of absenteeism. The suspension followed two six-week medical leaves of absence, which appellant took from May to June 2010 and from September to October 2010. Near the end of the second leave period, appellant requested an extension in order to "fully recover" from an operation. The request was denied and appellant was ordered to return to work on November 1, 2010.
When she returned to work, as ordered, on November 1, appellant's supervisor sent her home for failing to present a "return to work" physician's note. Thereafter, appellant obtained a physician's note, clearing her to return to work. She reported for duty on November 8, but was served with a preliminary notice of disciplinary action recommending a ten-day suspension because she did not follow required "call out procedures" on November 3, 4, and 5.
Appellant challenged the disciplinary action, retained counsel and participated in a hearing on January 25, 2011. The hearing officer found "[m]anagement [] presented sufficient credible evidence to support the charge . . . . [and] a 10-day suspension without pay is an appropriate penalty." The hearing officer's recommendation was adopted, and a final notice of disciplinary action was served on appellant in March 2011. Appellant served the suspension in April 2011.
Appellant appealed the determination, and attended an OAL settlement conference, where she rejected an offer to reduce the suspension. Trial was held before an administrative law judge (ALJ) on February 22, 2012.
At trial, following a recess at which the ALJ had suggested that the parties should discuss a resolution of the matter, counsel advised the ALJ that the judiciary would "withdraw the charges preferred [sic] against Ms. Ackley and restore her ten days of discipline providing that there is no attorney's fees award," at which time the following exchange took place:
THE COURT: Well, if you withdraw it, there's nothing; the case just disappears.
. . . .
Following trial, the Commission simply acknowledged in the minutes of a meeting the withdrawal of the appeal.
COUNSEL: I think you're right. The case just disappears.
THE COURT: Okay. The case has just disappeared. I thank you all, and you're adjourned.
Subsequently, by letter dated June 9, 2012, appellant filed an application with the Commission requesting reimbursement of counsel fees. According to the letter, appellant paid her lawyer a $6,500 retainer but had not yet received a final invoice for legal fees. Initially, in June 2012, the Commission rejected the appeal stating that, because "[t]here was no adjudication on the merits of the charges or the penalty levied against you . . . . counsel fees cannot be awarded under N.J.A.C. 4A:2-2.12(a)." However, in July 2012, the Commission permitted the parties to submit briefs and supporting documentation. On February 14, 2014, the Commission issued its Final Administrative Action denying appellant's request for counsel fees adopting the reasons stated in its June 2012 letter. This appeal followed.
Our review of agency decisions is limited. In re Stallworth, 208 N.J. 182, 194 (2011); see also In re Taylor, 158 N.J. 644, 656 (1999). We defer to an agency's fact finding and give deference to its interpretation of its enabling legislation as well as matters pertaining to the exercise of agency expertise; however, we are not "bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Utley v. Bd. of Review, Dep't of Labor, 194 N.J. 534, 551 (2008) (quoting Mayflower Sec. Co. v. Bureau of Sec, 64 N.J. 85, 93 (1973)). Such legal issues are subject to de novo review without deference to the agency. See Pressler & Verniero, Current N.J. Court Rules, comment 3.4.2 on R. 2:10-2 (2015). Further, we may intervene and reverse the determination of an administrative agency in "rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy," In re Musick, 143 N.J. 206, 216 (1996); see In re Juvenile Detention Officer Union County, 364 N.J. Super. 608, 614 (App. Div. 2003) (A decision of an administrative agency will be upheld unless it is contrary to express or implied legislative policies.).
Appellant argues she is entitled to attorney fees under N.J.A.C. 4A:2-2.12(a) because, given the judiciary's withdrawal of the charges against her, she prevailed on all or substantially all of the primary issues in her appeal. The judiciary argues that appellant did not succeed on the merits because the charges were withdrawn before adjudication, and moreover, once the judiciary withdrew the charges, the Commission lost jurisdiction to consider appellant's request for counsel fees. We agree with appellant and hold that a voluntary dismissal by the employer does not bar an employee from recovering attorney's fees under N.J.A.C. 4A:2-2.12(a).
N.J.S.A. 11A:2-22 empowers the Commission to award reasonable attorney fees pursuant to rule. In turn, N.J.A.C. 4A:2-2.12(a) states in relevant part "[t]he 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."
The question of whether an employer's voluntary dismissal is the legal equivalent of the employee succeeding on the merits under N.J.A.C. 4A:2-2.12(a) is one of first impression and we are not bound by the Commission's construction of the rule. We observe that "a rule of an administrative agency is subject to the same canons of construction as a statute[.]" Matter of N.J.A.C. 14A:20-1.1, 216 N.J. Super. 297, 306 (App. Div. 1987). Accordingly, a regulation "[should] not be interpreted in a manner leading to absurd or unreasonable results." Reisman v. Great Amer. Recreation, 266 N.J. Super. 87, 96 (App. Div.), certif. denied, 134 N.J. 560 (1993). "In fact, when construing a . . . [regulation], 'every effort should be exerted to avoid . . . an anomalous result.'" Ibid. (quoting Union Co. Bd. of Freeholders v. Union Co. Park Comm., 41 N.J. 333, 341 (1964)).
Here, interpreting N.J.A.C. 4A:2-2.12(a) to allow an employer to avoid liability for counsel fees by simply withdrawing charges just prior to a Commission's ruling would lead to unjust results. An employee should not be required to bear the cost of defending against charges that the employer has pursued and vigorously prosecuted through the various administrative levels simply because it elects to "withdraw" the charges prior to final action by the Commission. At that point, the employee has already retained counsel, and presumably has incurred a substantial debt for those legal services. Such a result is simply unfair, may dissuade employees from seeking representation, and saddles an employee who has, in effect, successfully challenged disciplinary charges with an enormous debt - results clearly contrary to public policy and the intention of N.J.A.C. 4A:2-2.12(a).
Our holding is consistent with judicial precedent in similar contexts. Courts have consistently concluded that, under N.J.S.A. 2A:15-59.1 — which awards a prevailing party counsel fees when the nonprevailing claim was frivolous — it is not necessary that a matter be tried to its conclusion for a party to prevail in litigation. First Atlantic Federal Credit Union v. Perez, 391 N.J. Super. 419, 432 (App. Div. 2007) (a party "prevails" even if the matter settles or the complaint is dismissed for lack of merit); Ibelli v. Maloof, 257 N.J. Super. 324, 334-36 (Ch. Div. 1992) (finding withdrawal of motion seeking dismissal for lack of personal jurisdiction after responding party uncovered substantial sales in New Jersey was, under circumstances, involuntary and rendered movant liable for attorneys' fees); Chernin v. Mardan Corp., 244 N.J. Super. 379, 383 (Ch. Div. 1990) (establishing motion to amend complaint to delete defendant after becoming convinced no cause of action could properly be asserted rendered defendant prevailing party); Evans v. Prudential Prop. & Cas. Ins. Co., 233 N.J. Super. 652, 658-59 (Law Div. 1989) (recognizing frivolity of position taken by litigant can be determined at time position is adjudicated, prior to conclusion of litigation).
The Supreme Court has held that an award of attorney's fees, under the New Jersey Civil Rights Statute, is not dependent upon an adjudication on the merits; but rather, awarding counsel fees is appropriate where the outcome of the case modifies the defendant's behavior in a way that directly benefits the plaintiff. Tarr v. Ciasulli, 181 N.J. 70, 85 (2004) (citing Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992)).
In Ciasulli, the Court noted that it has cited with approval the federal view that a prevailing party is one who succeeds "on any significant issue in litigation [that] achieves some of the benefit the parties sought in bringing suit." Ibid. (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1938, 76 L. Ed. 2d 40, 50 (1983)). "The United States Supreme Court has observed that '[t]he touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.'" Ibid. (quoting Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93, 109 S. Ct. 1486, 1494, 103 L. Ed. 2d 866, 877 (1989)).
The same rationale applies here. The fact that the employer withdrew its claims against appellant prior to adjudication on the merits does not obviate appellant's status as a prevailing litigant. Rather, in line with Ciasulli, supra, the employer's withdrawal constituted an alteration in the legal relationship between appellant and her employer that directly benefitted plaintiff — the result of withdrawal of the charges was reinstatement and back pay. 181 N.J. at 86. Accordingly, appellant prevailed and consideration of her application for attorney's fees is required. N.J.A.C. 4A:2-2.12.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION