Laws affecting employees often contain fee shifting provisions which provide that the “prevailing party” is entitled to be paid for their attorney’s fees and costs. That might seem relatively straight forward. However, it is not always clear just who is considered a “prevailing party” entitled to an award of attorney’s fees in the civil service context, or when that determination is made.

Recently, the New Jersey Appellate Division found that where an employer had charged an employee with alleged absenteeism, but the employer later voluntarily dismissed those charges, the employee was a prevailing party entitled to an award of attorney’s fees.

Patricia Ackley, a senior probation officer for the New Jersey Superior Court, was suspended from her position for 10 days based upon charges that she allegedly failed to report to work. The judiciary suspended Ackley after she had been out of work on two six-week medical leaves of absence. Her employer had denied her request for an additional extension to “fully recover,” and ordered her to return to work. When she returned to work, as ordered, her supervisor sent her home until she returned with a medical note reflecting that she was fully cleared to return to work. Officer Ackley then obtained the required medical clearance note, and presented it to her supervisor a week later. The judiciary then brought charges against Ackley for failing to follow its “call out” protocol in the interim.

The hearing officer in Ackley’s Civil Service hearing sustained the charges, and Officer Ackley appealed to the Appellate Division.  During the trial, the judiciary agreed to voluntarily withdraw the charges and restore Officer Ackley’s ten days of discipline, providing that Ackley was not awarded attorney’s fees. Officer Ackley then filed a fee application with the Commission based upon her having “prevailed on all or substantially all of the primary issues in her appeal” under N.J.A.C. 4A:2-2.12. The Commission rejected her fee application, based upon its finding that there was no prevailing party because the matter had been voluntarily withdrawn. Officer Ackley then appealed the denial of attorney’s fees to the Appellate Division.  Observing that “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,” the Appellate Division reversed. In so finding, the Court observed that to find otherwise would unjustly permit an employer to avoid liability for counsel fees by simply withdrawing charges just prior to a Commission’s ruling, after the employee had spent significant sums to defend charges, “that the employer has pursued and vigorously prosecuted through the various administrative levels.” The Court opined further that such a result would be unfair and contrary to public policy and the intention of the fee-shifting provision. Finally, the Court noted that its holding was also consistent with the New Jersey Supreme Court’s  interpretation of similar fee-shifting provisions contained in the New Jersey Civil Rights Statute, citing 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)).

By Francine Foner, Esq. and Ty Hyderally, Esq.

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