ERITM S R EPORTERYSTEMVOLUME ? NUMBER 1

A digest of notable Merit System decisions Volume 10, Number 1 - Winter 2001

WRITTEN RECORD APPEALS

IN THIS ISSUE

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HEARING MATTERS

FROM THE COURT

TO OUR READERS:

OF PERSONNEL INTEREST

SLI Denied for Gross Negligence Based onConduct Which Placed Employee atSubstantial Risk of HarmIMO John Severino ............................... page 2

Improper Test Instructions Warrant PartialRetestIMO Michael Johnson, et al .............................. page 3

Reinstatement to Exact Prior Position NotRequiredIMO Diane Murphy .......................................... page 5

Female - Only BFOQ Granted for Sheriff’s Of-ficer Positions Based on Privacy Interests ofInmates and VisitorsIMO Sheriff’s Officer, Hudson County .............. page 10

SLI Benefits Granted for UnprovokedAttack by Co-WorkerIMO John McKeown ......................................... page 14

Removal Upheld for Fraudulent Use ofFamily Leave and Improper Use of theInternetIMO Shelly Tozer .................................. page 15

Employee Forever Barred from PublicEmployment Under Forfeiture StatuteIMO Andres Vives Rivera .................................. page 16

Rules Roundup. ............................................... page 20

Only Charges on FNDA Appealable to theBoardIMO Robert Hammond .................................... page 22

Back Pay Not Reduced for Period ofAttorney’s DelayIMO Frank Hoffman ........................................ page 23

CEPA Claim Does Not Preclude Employee’sAppeal to the BoardIMO Robert Scouler .......................................... page 24

The Merit System Reporter is now available onthe Internet. To access the Reporter, log in to theDepartment of Personnel Home Page atwww.state.nj.us/personnel. Click on the “Publi-cations” menu on the left of your screen. To viewand print the Reporter, you must have a PDFviewer which is available free from Adobe. In-structions on how to download the latest versionof the Adobe Acrobat viewer from the Adode website are available on our “Reports and Publica-tions” page.

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WRITTEN RECORD APPEALS

John Severino, a Dairy Worker with theDepartment of Corrections, appeals the denialof sick leave injury (SLI) benefits.

Appellant alleges that on September 17,1998, he injured his left index finger when heattempted to retrieve a carton from a milk-pack-aging machine while the machine was running.On the incident date, appellant was treated inthe emergency department at Capital HealthSystem and was diagnosed with an open frac-ture to the distal phalanx of the left index fin-ger. He was examined by Dr. Parvaiz A. Malik, aplastic and reconstructive surgeon, who diag-nosed appellant’s injury as an open fracture tothe distal phalanx with lacerations and autho-rized appellant off duty until October 19, 1998.The record indicates that appellant had surgeryto repair his left index finger.

The appointing authority deniedappellant’s request for SLI benefits on the basisthat he was grossly negligent in placing his handin the machine while it was running. SeeN.J.A.C. 4A:6-1.6(c)6. The appointing author-ity investigated the incident and presents thatappellant had been properly trained to operatethe machine in a safe manner and to turn themachine off when clearing blockages. In sup-port of its position, the appointing authority sub-mits a copy of a Supervisor’s Accident Investi-gation Report dated October 8, 1998, in whichappellant’s supervisor states that all staff andinmates are trained to turn off the machine priorto making any repairs or clearing any blockages.The appointing authority also asserts that ap-pellant admitted that he used poor judgment.

SLI Denied for Gross NegligenceBased on Conduct Which PlacedEmployee at Substantial Risk ofHarmIn the Matter of John Severino,Department of Corrections(Merit System Board, decided August 29,2000)

On appeal to the Merit System Board,appellant does not deny that he placed his handinto the machine while it was running and ac-knowledges that he used poor judgment. Appel-lant also does not deny failing to turn off themachine or being trained to turn off the machineprior to making any repairs or clearing anyblockages. Appellant further notes that helearned a valuable lesson from the incident.However, appellant argues that his injury wasan accident and not gross negligence on his part.Moreover, appellant contends that he is entitledto SLI benefits because had he been grossly neg-ligent, the appointing authority would have dis-ciplined him.

In response, the appointing authority as-serts that it exercised its discretion not to im-pose discipline in this case since appellant ac-knowledged that he learned a valuable lessonfrom the incident.

CONCLUSION

According to uniform SLI regulations, inorder for an injury to be compensable, it mustarise out of a work-related accident or conditionof employment and the burden of proof to estab-lish entitlement to SLI benefits by a preponder-ance of the evidence rests with the appellant. SeeN.J.A.C. 4A:6-1.6(c) and N.J.A.C. 4A:6-1.7(h).

N.J.A.C. 4A:6-1.6(c)6 provides that an in-jury or illness is not compensable if an appoint-ing authority establishes that gross negligenceof the claimant contributed to the injury or ill-ness. The Board interprets the gross negligencestandard in the context of the SLI program tomean that benefits are appropriately deniedwhen the claimant engaged in conduct whichplaced him or her at a substantial risk of harm.

For example, in In the Matter of LennoxWilliams (MSB, decided December 22, 1998), SLIbenefits were denied to an employee for an in-jury to his hand which was caught in the cylin-der of a printing machine since the employee,despite numerous warnings, failed to turn off themachine before making adjustments to it. TheBoard determined that his conduct constituted

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gross negligence and precluded him from receiv-ing SLI benefits pursuant to N.J.A.C. 4A:6-1.6(c)6. The Board has similarly interpreted thegross negligence standard in more recent SLIappeals. See e.g., In the Matter of Bessie Haynes(MSB, decided March 7, 2000) (SLI denied toemployee who bypassed a safety guard andplaced her hand in a food cutter despite clearwarning labels on the food cutter and instruc-tions from a supervisor on the use of the ma-chine); In the Matter of Marva Nicholson (MSB,decided May 23, 2000) (SLI benefits denied toemployee who suffered injury to her eyes frommixing a cleaning agent with bleach where theemployee admitted that she knew she should nothave mixed the chemicals). Additionally, it is anappellant’s burden of proof to provide evidencethat his or her actions when the accident occurreddid not subject him or her to a substantial riskof harm as the appellant was performing his orher job duties. If such a showing is made, SLIbenefits cannot be denied based on gross negli-gence. See In the Matter of Mary Montgomery(MSB, decided May 9, 2000) (SLI granted toTrenton Psychiatric Hospital employee foundnot to be grossly negligent where employee acci-dentally dropped a cup containing chemicals,causing the chemicals to splash into theemployee’s eyes).

In this case, unlike Montgomery, it is clearthat the evidence in the record shows thatappellant’s actions placed him at a substantialrisk of harm. The record shows that appellantplaced his hand in a milk-packaging machinethat was running despite being trained to turnoff the machine prior to making any repairs orremoving any blockages. He also admits that heused poor judgment. Accordingly, sinceappellant’s actions placed him at a substantialrisk of harm, his actions constituted gross negli-gence, and he is not entitled to SLI benefits forthe injuries received in the incident. Thus, a thor-ough review of the record indicates that the de-nial of SLI benefits was proper and consistentwith uniform SLI criteria, and appellant hasfailed to meet his burden of proof in this matter.

ORDER

Therefore, it is ordered that this appealbe denied.

Michael Johnson, Dennis Sanders, WillieStroud and Derrick Varnado appeal the adminis-tration of the examination for Police Sergeant(PM0959W), Newark.

The subject examination consisted of 70evenly weighted, multiple-choice questions andwas administered on October 22, 1998. Appellantswere all seated in Room N at the Essex CatholicHigh School in East Orange, New Jersey. In re-sponse to a candidate question, the room monitorinstructed candidates that they could not markin the test booklets. A total of 691 candidates wereadmitted to the examination: 38 candidates didnot take the exam, 320 candidates failed and 333candidates passed. Messrs. Sanders, Stroud, andVarnado filed appeals of this issue in February1999, after receiving their test results. It is notedthat Messrs. Sanders and Stroud passed the ex-amination and were ranked 200 and 143, respec-tively, and Mr. Varnado failed the examination.

Mr. Johnson appealed this issue on theexamination date. He stated that he was deniedthe use of a highlighter, which he had been pre-pared to use, and which affected his performance.

Improper Test InstructionsWarrant Partial RetestIn the Matter of Michael Johnson et al.,Police Sergeant (PM0959W), Newark(Merit System Board, decided February 23,2000)

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It is noted that the Center Supervisor Report onConduct lists one appeal regarding the use of ahighlighter. In a supplement to his appeal, inFebruary 1999, Mr. Johnson claimed that on thetest date, he questioned the monitor about theuse of his highlighter and was advised by the roommonitor that he could not use it. He states thathe spoke to the Center Supervisor after he com-pleted the examination and was not offered a rem-edy. He contended that he was adversely affectedin his responses to questions 1-5, 11-15, 17-19, 29,33, 35, 39 and 42. It is noted that Mr. Johnsoncorrectly answered 34 of the 70 questions. Sincethe passing point was 36, appellant failed the ex-amination.

Following receipt of an appeal of this mat-ter, the Center Supervisor and the monitor ofRoom N were contacted and asked about theirinvolvement in this matter. The room monitoracknowledges that she did not allow candidatesto use highlighters or make markings in the testbooklet. The Center Supervisor indicates thatMr. Johnson brought the matter to his attentionafter he had completed the entire examination,when the time to complete the examination hadexpired or nearly expired.

A review of the examination booklet re-veals that questions 1 through 5 are unique inthat they are a subtest pertaining to schedulingpersonnel. A blank calendar was included andcandidates were told to plan a two-week sched-ule for 12 officers in three shifts. The analysisrequired to complete this assignment would haveinvolved writing on the calendar or some otherway to track the days worked by each of the 12officers. As such, candidates in room N couldhave been disadvantaged by the inability tomark their test booklets. Questions 11-15, 17-19,29, 33, 35, 39 and 42 cited by appellant are regu-lar multiple choice questions requiring candi-dates to read a statement or scenario and pickthe best answer to the question or best phrasewhich completes a sentence. They are not re-lated to each other, that is, they do not share com-mon material. These questions can all be an-swered without marking in the test booklet.There is nothing unique about these questions

which set them apart from the remainder of thequestions, except that Mr. Johnson incorrectlyanswered ten of these thirteen questions.

FINDINGS OF FACT

Upon independent review and careful con-sideration of all material presented, the Boardmade the following findings:

1. Appellants seated in Room N at theEssex Catholic High School in East Orange, NewJersey were not permitted to use highlighters ormake marks in their test booklets.

2. Messrs. Sanders, Stroud, and Varnadofiled appeals of this issue in February 1999, afterreceiving their test results.

3. Mr. Johnson appealed this issue on theexamination date.

4. The analysis required to complete ques-tions 1 through 5 would have involved writing onthe calendar provided in the test booklet, or theuse of another way to track the scheduling infor-mation.

5. Questions 11-15, 17-19, 29, 33, 35, 39 and42 can be answered without marking in the testbooklet.

CONCLUSION

Candidates seated in Room N at the EssexCatholic High School in East Orange, New Jer-sey were instructed not to use highlighters or marktheir test booklets. Candidates were permitted todo so in other examination rooms. N.J.A.C. 4A:4-6.4(c), (Review of examination items, scoring andadministration) states that appeals pertaining toexamination administration must be filed in writ-ing at the examination site on the day of the ex-amination. The examination was administered onOctober 22, 1998, and only Mr. Johnson broughtthis matter to the attention of the Center Super-visor. As such, appeals from Messrs. Sanders,Stroud and Varnado are untimely.

With regard to Mr. Johnson’s appeal, ap-pellant contends that the lack of the use of ahighlighter or the ability to mark in the test book-let adversely affected his performance, particu-

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larly for questions 1-5, 11-15, 17-19, 29, 33, 35, 39and 42. A review of these questions reveals thatquestions 1 through 5 are unique, but that theremainder of the questions can be answered with-out the use of a highlighter and without markingin the test booklet.

Questions 1 through 5 are unique in thatmost candidates would need to mark their testbooklets or highlight information containedtherein in order to complete an analysis neces-sary to answer these questions. As such, Mr.Johnson should be permitted to take an alternateform of the scheduling exercise. The scores forquestions 1 through 5 on the original examina-tion should be removed and the alternativesubtest scores should be included to derive finalexamination scores.

Moreover, since the monitor’s error is notdisputed and her erroneous instructions had anadverse effect on other candidates in the room,the same remedy shall be made available to othersimilarly situated candidates for the examinationfor Police Sergeant (PM0959W), Newark whowere tested in Room N. Thus, although Messrs.Sanders, Stroud, Varnado and others in room Ndid not raise timely appeals of this issue, goodcause exists to relax the rule on appeal time lim-its in order to effectuate the purpose of Title 11A.N.J.S.A. 11A:4-1 states, in pertinent part, that theCommissioner of Personnel shall provide for ex-aminations “which shall test fairly” the knowl-edge, skills and abilities required to satisfactorilyperform the duties of a title. This remedy helpsfulfill that purpose.

ORDER

Therefore, it is ordered that this appeal begranted and that candidates for the subject ex-amination tested in Room N be administered analternative scheduling sub-test consisting of fivequestions, which shall replace questions 1through 5 on the original examination.

Diane Murphy, a Supervisor of Legal Sec-retarial Services with the Department of Lawand Public Safety (LPS), represented by MichaelJ. Herbert, Esq., requests enforcement of theMerit System Board (Board) decision in In theMatter of Diane Murphy (MSB, decided Janu-ary 12, 1999).

Murphy had worked for the State since1972 and in LPS’s Division of Criminal Justice’sOffice of Casino Prosecutions (OCP) in AtlanticCity from 1982 until she was removed from herposition on February 25, 1997. On that date shewas charged with conduct unbecoming a publicemployee and it was alleged that she compro-mised an ongoing confidential investigation byknowingly disclosing information pertaining tothe investigation to the subject of the investiga-tion. After a hearing, the Board determined thatMurphy was guilty only of accessing computerrecords for a non-law enforcement purpose andrelaying the results of her computer search toan outside individual. For this infraction, theBoard imposed a five-day suspension and rein-stated the appellant with back pay, seniority andbenefits.

In her February 1, 2000 request for en-forcement, Murphy argues that she is entitledto be reinstated to the exact position with theOCP in Atlantic City she held prior to her re-moval. She states that in March 1999, she wasinformed that her prior position in the OCP hadbeen abolished and there were no positions avail-able for her in Atlantic City. She was insteadoffered a position in Trenton with the Divisionof Law which she accepted “under protest” onApril 14, 1999. She also informed LPS that shebelieved that its “post-hearing elimination of . .

Reinstatement To Exact PriorPosition Not RequiredIn the Matter of Diane Murphy(Merit System Board, decided June 6,2000)

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. [her] title and position” at the OCP was retalia-tory and done in defiance of the Board’s order.On April 21, 1999, Murphy filed an Order to ShowCause in New Jersey Superior Court seeking herreinstatement to her position at the OCP.Murphy withdrew this matter in July 1999 basedon an agreement with LPS that she would seekenforcement before the Board. Murphy statesthat she did not file her appeal with the Boarduntil February 2000 “because of [the] relatedissue of reimbursement for attorney’s fees. Thatmatter was resolved in December 1999 . . . allow-ing this remaining issue to be filed with theBoard.”

Murphy specifically argues that “[b]y law,. . . [she] was entitled to the position from whichshe was removed . . .” She alleges that the Divi-sion of Criminal Justice nullified her reinstate-ment to that position by ostensibly “reclassify-ing” that position as a pretext to keep her fromre-obtaining it. She states that LPS “has failedto produce any evidence that . . . [her] positionhad been legally reclassified.” Additionally, sheargues that the LPS’ actions in compelling herto take a position far from her original positionare in violation of N.J.A.C. 4A:4-7.7, which statesthat reassignments may not be used as a form ofdiscipline.

Murphy also contends that the LPS’ as-sertion that her OCP position had been reclassi-fied through a desk audit of the position, even iftrue, is invalid. Specifically, she states that pur-suant to N.J.A.C. 4A:3-3.5, no reclassification canoccur without providing notice to a permanentemployee, notice she did not receive. In this re-gard, she states that even though she was re-moved from her employment at the time of thereclassification, she “was still an employee inthat title who was entitled to notice of the reclas-sification.” Additionally, she contends that “un-der N.J.S.A. 11A:3-6, the Board cannot reclas-sify a position without a public hearing, on no-tice to an incumbent.”

In response, LPS, represented by Jenni-fer Meyer-Mahoney, Deputy Attorney General,argues that Murphy’s appeal is not properlytermed a request for enforcement. Rather, it con-

tends that she is challenging her reassignmentfrom the OCP to the Division of Law. As such, itargues that she is out of time to appeal such ac-tion to the Board. Specifically, LPS argues thatMurphy should have appealed her reassignmentwithin 20 days of reasonably becoming aware ofthe reassignment, or in this case, with LPS’ con-sent, within 20 days of the dismissal of her Or-der to Show Cause. LPS contends that the Or-der to Show Cause was dismissed on July 19,1999, therefore, Murphy’s appeal to the Boardalmost six months later is untimely and shouldbe dismissed. LPS also argues that it reassignedMurphy in good faith. In this regard, it statesthat the Board did not order Murphy back to herparticular OCP position. Additionally, it statesthat there was no vacant Supervisor of LegalSecretarial Services position to return Murphyto in the OCP. It also contends that it offeredMurphy several other equivalent positions invarious locations which were declined byMurphy. Moreover, LPS states that it was withinits authority to place Murphy in a position withthe Division of Law. Specifically, it states thatthe LPS, as the appointing authority, could re-assign any employee in its discretion pursuantto N.J.A.C. 4A:4-7.2, so long as the reassignmentwas within Murphy’s civil service title. Finally,LPS contends that Murphy’s position at OCPwas reclassified and downgraded to a TechnicalAssistant III title on October 9, 1997, onlymonths after Murphy’s removal, pursuant tomerit system law and rules and was effectedbased on the duties of the position and the op-erational needs of the OCP. In support of thesearguments, LPS submits the affidavit of DonSerden, a Deputy Director in the Division ofCriminal Justice.

In response, Murphy argues that the ap-pointing authority was the Division of CriminalJustice and not LPS and therefore, Murphycould not be transferred without notice and herconsent pursuant to N.J.A.C. 4A:4-7.1. Addition-ally, she contends that even if the LPS is theappointing authority, her reassignment wastaken as discipline as evidenced by the Divisionof Gaming Enforcement’s refusal to give her a

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position based on her charge of improper access-ing of the computer system. Finally, she statesthat LPS’ failure to take into consideration hersevere arthritic condition in reassigning her toa location that entails a 120-mile daily commute“raises some serious questions about a violations(sic) of the Law Against Discrimination . . . andthe Americans with Disabilities Act.”

CONCLUSION

Initially, the Board must addressMurphy’s contention that she “was entitled to theposition from which she was removed . . .”Murphy’s contentions in this regard areunpersuasive. In cases where the Board ordersreinstatement of an employee after a successfulappeal of a removal, the Board does not explic-itly order an appointing authority to return anappellant to his or her exact position with theexact duties as was held prior to the Board or-der. The Board does not expressly specify sucha remedy in order to allow an appointing author-ity the opportunity to exercise its discretion re-garding the deployment of its workforce. How-ever, it is clear that an appointing authoritymust return an employee to the same Merit Sys-tem title at the correct rate of pay as was heldprior to the disciplinary action. Additionally, anappointing authority should seek to return anemployee to the exact prior position, where prac-tical, and when not practical, to a substantiallysimilar position. While there are no Board casesdirectly on point, there is case law stating thatwhere an employee’s former position still existsbut is occupied by another employee, the em-ployee who is to be reinstated should be placedback in that position. See e.g., Feldman v. Phila-delphia Housing Authority, 43 F.3d 823 (3d Cir.1995). However, the Public Employment Rela-tions Commission (PERC) has held that wherean employee’s position has been properly abol-ished, an employee is not entitled to be returnedto that position absent a showing that the aboli-tion was improper. See In the Matter of North-west Bergen County Utilities Authority, 18 NewJersey Pub. Employee Rep. 23226 (1992). Fur-

ther, PERC has held that an employer may re-instate an individual to a position substantiallyequivalent to the position the employee previ-ously held, even if at a different location, so longas such a reinstatement was not for invidiousreasons. See In the Matter of County of Bergen(Bergen Pines County Hospital), 9 New JerseyPub. Employee Rep. 14103 (1983). Therefore, inthis case, in order for Murphy to establish anentitlement to her previous OCP position, shemust demonstrate that the position exists, andif it does not, that LPS’ abolition of that positionwas improper. For the reasons set forth in detailbelow, Murphy has not made such a showing.Accordingly, so long as Murphy was returned toher prior Merit System title at the correct rateof pay, her status regarding her assignments andaccommodations are within the discretion of theappointing authority, so long as such assign-ments and accommodations are not in contra-vention of Merit System or other law and rules.In this regard, her request to the Board cannotbe considered an enforcement action, but ratheran appeal of the sufficiency of her reassignmentpursuant to N.J.A.C. 4A:4-7.7.

In this regard, the Board must addressLPS’ contention that Murphy’s appeal of her re-assignment is untimely. The record shows thatMurphy was reassigned in April 1999 and in thesame month she filed an Order to Show Causein Superior Court in an attempt to re-obtain herprior OCP position. This filing was dismissedon July 19, 1999 with the understanding thatMurphy would file an appeal with the Board.Murphy’s appeal in this regard was not filed untilFebruary 1, 2000, during which time Murphyapparently reported to her Division of Law posi-tion in Trenton. The LPS argues that the Boardshould dismiss Murphy’s appeal as untimelysince she agreed to file an appeal with the Boardafter the July dismissal of the Order to ShowCause, but waited almost six months to do so,outside the time period for filing an appeal.Murphy contends that the delay of her appealwas attributable to “[the] related issue of reim-bursement for attorney’s fees . . . [which] was re-solved in December 1999 . . . allowing this re-

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maining issue to be filed with the Board.”Based on the evidence in the record, it is

clear that LPS’ position has merit. N.J.A.C. 4A:2-1.1 states that appeals must be filed within 20days after an individual has notice or shouldreasonably have known of the decision, situationor action being appealed. In this case, Murphywas reassigned in April 1999 and by apparentagreement, represented that she would appealthe issue of her reassignment to the Board afterthe dismissal of her Order to Show Cause in July1999. However, Murphy did not appeal the mat-ter until over six months later. Murphy’s expla-nation that this delay was due to a non-resolvedissue of attorney’s fees is unpersuasive. The is-sue of her attorney’s fees would have no bearingon her appeal to the Board regarding her reas-signment. In fact, there was no logical reasonfor Murphy to wait for an issue that did not re-late directly to her reassignment (her attorney’sfees) to be resolved before appealing her reas-signment to a position she felt she should nothave held, and, all the while, report to the posi-tion for almost six months before filing her ap-peal. Additionally, there is no evidence in therecord that Murphy and LPS agreed that shewould not file her appeal pending the determi-nation of the attorney fee issue. However, whilesuch a delay would not generally be consideredreasonable, in this case, since Murphy errone-ously believed that she was absolutely entitledto be placed back in her former OCP positionbased on the Board’s order, believed that the re-fusal of LPS to effect such a reinstatement wasin violation of the Board’s order, and erroneouslybelieved that she was requesting that the Boardenforce its prior order, in the interest of fairness,the Board will address the merits of her appealof her reassignment.

Regarding the reassignment, Murphyfirst argues that there is no evidence that herOCP position was legally reclassified and evenif it were, such a reclassification was invalid sinceshe was not given notice of the reclassificationpursuant to N.J.A.C. 4A:3-3.5. Further, shestates “under N.J.S.A. 11A:3-6, the Board can-not reclassify a position without a public hear-

ing, on notice to an incumbent.” These argu-ments are unpersuasive. The record shows thatLPS submitted a request to the Department ofPersonnel to transfer an individual from anotherDepartment to fill the position of Technical As-sistant III with the OCP; a position it determinedfilled its operational needs and more closely re-sembled the duties Murphy performed while shewas at the OCP. In this regard, it is noted thatsuch a request is not technically a request to re-classify a position. Therefore, Murphy is correctin asserting that there is no evidence that herposition was reclassified. However, based on theevidence in the record, it is clear that no suchreclassification was necessary. The record clearlyshows that after Murphy was removed, the OCPdetermined that a position at that level was nolonger needed. However, it determined that itneeded an individual to fill the position at a lowerlevel. Based on this information and analysis,and to fill an operational need, LPS submittedan application to the Department of Personnelto fill the position with a Technical Assistant III,a title with duties more closely corresponding tothe position, and with a class code five levels be-low and a salary five ranges lower than the Su-pervisor of Legal Secretarial Services title. Thisapplication was approved by the Department ofPersonnel on October 9, 1997.

Additionally, Murphy’s argument thatsuch a reclassification is invalid since she wasnot given notice under N.J.A.C. 4A:3-3.5, ismeritless. N.J.A.C. 4A:3-3.5(c) states that “[n]oreclassification of any position shall become ef-fective until notice is given affected permanentemployees . . .” As previously stated, the actionof the LPS was not technically a reclassification,therefore, no employee notice was required.However, assuming arguendo, that the actionwas a reclassification, at the time of reclassifica-tion, Murphy was not and could not be consid-ered an LPS employee having been removedpreviously. Her contention that she still shouldhave been afforded notice since she had appealedher removal, thus, in some way preserving herright to her OCP position, is incorrect. As statedpreviously, Murphy did not have any vested

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right to her OCP position, and as such, the LPSwas free to change the title and refill that posi-tion with a lower level employee if its operationaland functional needs warranted such a change.Murphy’s only vested rights were to her title ofSupervisor of Legal Secretarial Services withinLPS. Finally, her argument that the reclassifi-cation is invalid under N.J.S.A. 11A:3-6 isunpersuasive based on the same reasoning asset forth above. Additionally, this argumentwould not apply even if the position was reclas-sified since N.J.S.A. 11A:3-6 provides that“[w]henever the board considers moving a titlefrom the career service to the unclassified ser-vice, the board shall first hold a public hearingbefore reaching a determination” (emphasisadded). This section contemplates situationswhere a career service title is changed to an un-classified service title. This section does not re-fer to a reclassification of positions. In conclu-sion, there is nothing in the record evidencingthat LPS downgraded Murphy’s OCP positionwith the nefarious intent to somehow prevent herfrom regaining that position if she should pre-vail in her appeal of her removal.

Murphy also argues that the LPS’ reas-signment was actually a transfer under N.J.A.C.4A:4-7.1, since the appointing authority was ac-tually the Division of Criminal Justice. There-fore, she states that the transfer was invalid sinceshe did not consent to the transfer. This argu-ment is erroneous. N.J.A.C. 4A:4-7.1(a)1 pro-vides that in State service, an organizationalunit means an appointing authority. Appoint-ing authority is defined in N.J.A.C. 4A:1-1.3 as“a person or group of persons having power ofappointment or removal.” Within the LPS,N.J.S.A. 52:17B-3 and N.J.S.A. 52:17B-4 providethat the Attorney General has the power of ap-pointment and removal of all employees. Thus,an employee’s movement from one division toanother within the LPS is a reassignment pur-suant to N.J.A.C. 4A:4-7.2, which may be at thediscretion of the Attorney General. Also, sincethe rule governing the reassignment of Stateemployees does not contain an advance noticerequirement, Murphy’s argument in this regard

fails.Murphy further argues that her reassign-

ment was improper pursuant to N.J.A.C. 4A:4-7.7 since it was utilized as part of a disciplinaryaction. As evidence of this assertion, Murphystates that the Division of Gaming Enforcementin Atlantic City refused to allow her to take aposition there based on her charge of improperaccess of the computer systems. This argumentis unpersuasive. Initially, it is again noted thatthe Attorney General, as head of LPS, not theDivision of Gaming Enforcement, would have theultimate decision in its assignment of employ-ees. In this regard, the evidence in the record,specifically, an affidavit submitted by LPS froma Deputy Director in the Division of CriminalJustice, states:

I also explored placement with theDivision of Gaming Enforcement inAtlantic City, however, I was in-formed that the Department wasnot willing to place an employeethere who had been found to haveimproperly accessed the CriminalJustice Information System.

Based on this information, it is unclear whetherthere was actually a position available forMurphy with the Division of Gaming Enforce-ment. Regardless, it is clear that the LPS didnot prevent Murphy from being reassigned withthe Division of Gaming Enforcement as part ofa disciplinary action. There is no evidence inthe record demonstrating that LPS preventedMurphy from obtaining a position at the Divi-sion of Gaming Enforcement in Atlantic City,near to her residence, as a way to further penal-ize her for her improper access to the computersystem. Rather, the evidence shows that theLPS, in its discretion, was not willing to reas-sign Murphy to a position where she would havesignificant access to the Criminal Justice Infor-mation System given the fact that she had beenfound guilty of unauthorized access to that sys-tem. Such a determination is within LPS’ dis-cretion and is certainly a valid business reasongiven the sensitivity of the information avail-able on that computer system. Additionally, the

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title of Supervisor of Legal Secretarial Servicesis used throughout LPS, including Divisionswhere such access is not available or necessary,thereby not limiting the reassignment ofMurphy only to locations with access to that sys-tem. Also, LPS’ apparent prohibition onMurphy’s access to that computer system shouldnot be considered disciplinary unless the abilityto access that system was an integral part of herjob functions and her inability to access that sys-tem negatively impacted her ability to performher job. Additionally, other than this prohibi-tion, there is nothing in the record evidencingthat LPS was preventing Murphy from other-wise functioning as a Supervisor of Legal Secre-tarial Services in any capacity. In fact, the recordshows that LPS is pleased with Murphy’s effortsin her current position at the Division of Law.Finally, the record shows that the LPS offeredMurphy several other positions in different ca-pacities which she declined.

Murphy finally contends that LPS’ fail-ure to take into consideration her severe arthriticcondition in reassigning her to a location thatentails a 120-mile daily commute “raises someserious questions” about violations of the LawAgainst Discrimination and the Americans withDisabilities Act. In this regard, the Board notesthat, based on the evidence in the record, theLPS attempted to accommodate Murphy with anappropriate position. However, none were avail-able within close proximity to her home. Thereis nothing in the record demonstrating that theLPS actions were discriminatory. However, ifMurphy feels that such actions were in violationof her rights under the Law Against Discrimi-nation or the Americans with Disabilities Act,she may file a request for a reasonable accom-modation with the LPS or a discrimination com-plaint with the LPS pursuant to the provisionsof N.J.A.C. 4A:7-3.2, et seq.

ORDER

Therefore, it is ordered that this requestfor enforcement be denied.

Further, the Board finds that Diane

Murphy’s reassignment was proper and not inviolation of any Merit System law or rules.

The Hudson County Sheriff ’s Office(Sheriff ’s Office), represented by Stephen E.Trimboli, Esq., appeals the decision by the Di-rector, Division of Equal Employment Opportu-nity and Affirmative Action (EEO/AA), whichdenied its request for 13 bona fide occupationalqualification (BFOQ) designations (female-only)for Sheriff ’s Officer.

By way of background, on June 12, 1998,the Sheriff ’s Office requested 13 BFOQ designa-tions (female-only) for the title of Sheriff ’s Of-ficer. Specifically, in support of this originalBFOQ application, the Sheriff ’s Office requestedtwo female-only BFOQ designations for trans-portation Officers, eight female-only BFOQ des-ignations for court security Officers and threefemale-only BFOQ positions for patrol positions.The transportation Officer and court securityOfficer positions have work hours from 8:30 a.m.to 4:30 p.m., Monday through Friday, and thepatrol positions function on a three shift, 24-hourbasis.

Female-Only BFOQ Granted forSheriff’s Officer Positions Basedon Privacy Interests of Inmatesand VisitorsIn the Matter of Sheriff’s Officer,Hudson County(Merit System Board, decided January 11,2000)

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The Sheriff ’s Office described the respon-sibilities and percentage of time devoted to eachresponsibility of the female transportation Of-ficer as follows: (1) must transport female inmatesto and from the Hudson County correctional fa-cility to the Courthouse, including physicallysearching inmate for contraband prior to leav-ing and upon returning to the jail - 20 percent;(2) must be in holding area of the Courthouse toassist with female inmates, including perform-ing any additional searches, appropriately deal-ing with privacy and hygiene issues and be avail-able for emergency transports to medical facili-ties - 40 percent; (3) must physically search fe-male defendants not in custody prior to sentenc-ing and physically search a female defendantafter sentencing and prior to placing in a deten-tion cell at the Courthouse - 10 percent; (4) mustescort female inmates from holding cells to vari-ous courtrooms and offices in the Courthouse -10 percent; and (5) must transport female in-mates to medical facilities and supervise femaleinmates during medical examinations - 20 per-cent.

The Sheriff ’s Office described the respon-sibilities and percentage of time devoted to eachresponsibility of the female court security Officeras follows: (1) must physically search female liti-gants in domestic violence cases - 10 percent; (2)must physically search any individual who setsoff metal detector at Courthouse entrance twice- 10 percent; (3) must physically search femaledefendants arrested by a Sheriff ’s Officer in theCourthouse prior to placing that defendant in adetention cell at the Courthouse - 5 percent; (4)when applicable, must physically search any fe-male who sets off metal detector outside of acourtroom’s entrance twice - 5 percent; (5) mustgenerally patrol the Courthouse - 55 percent; and(6) must randomly enter female restrooms toensure a safe environment - 5 percent (it is notedthat the Sheriff ’s Office did not account for 10percent of the duties for this position in its origi-nal application). It described the responsibilitiesand percentage of time devoted to each respon-sibility of the female patrol Officer as follows: (1)must patrol roads for crime and motor vehicles

violations, respond to police calls and supportlocal municipal police force - 65 percent; (2) mustphysically search female suspects for contrabandbefore incarceration - 10 percent; (3) must beavailable to assist with female suspects beingheld prior to incarceration, including assistingwith any additional searches, dealing with pri-vacy and hygiene, issues and emergency trans-ports to medical facilities - 10 percent; and (4)must transport female inmates from the DuncanAvenue facility to other detention and medicalfacilities - 15 percent.

In its original application, the Sheriff ’sOffice also stated that the main reason for itsrequest for such BFOQ designations was to pro-tect the privacy concerns of the female inmatesand other females who require attention. It listedsome of these privacy concerns as strip-search-ing of female inmates, the non-strip “pat-down”type searches of female suspects and others notin custody, the medical examinations of femaleinmates, and the supervision of female inmateswhile using rest room facilities. It argued thatthere was no acceptable alternative to havingfemale officers conducting physical searches offemale inmates since handheld metal detectorswere not reliable in detecting small metal objectsand did not detect non-metal objects. It alsostated that it could not utilize Hudson CountyCorrection Officers to perform searches sincethese employees did not fall under the Sheriff ’sOffice jurisdiction. Additionally, it contendedthat due to low staffing levels of female officersand the number of female inmates handled bythe Sheriff ’s Office, it could not reassign currentstaff to cover all of the female positions needed.It finally noted that its request for BFOQ desig-nations was modeled after a previously grantedrequest for BFOQ designations made for trans-portation Officer and court security Officer posi-tions by the Monmouth County Sheriff ’s Officein 1995.

Based on this application, on July 24,1998, the Director of EEO/AA issued a decisiondenying the BFOQ designations. In that deci-sion, the Director stated that “the main thrustof these positions involves patrolling and trans-

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porting inmates from one place to another and,therefore, it does not appear that female onlypositions are needed.” It also states that “it seemsthat your searching function is performed only10 percent of the time and it is not clear who con-ducts these searches.” Finally, it states that theSheriff ’s Office did not meet the criteria forBFOQ designations, including a failure to show“that grave harm to innocent third persons willresult in the absence of the BFOQ.”

The Sheriff ’s Office appealed this decisionto the Merit System Board (Board). In its appeal,it first argues that the Director of EEO/AA usedthe wrong standard in denying its request forBFOQ designations. Specifically, it states thatthe Director added an additional requirement,namely that it was required to demonstrate thatgrave harm would result in the absence of thegranting of the BFOQ designations. It arguesthat such a requirement is not supported in caselaw, N.J.A.C. 4A:4-4.5 or in prior Board decisionsregarding BFOQ designations. In support of thiscontention, it cites In the Matter of County Cor-rection Officers, Middlesex County (MSB, de-cided June 16, 1998) (referred to hereafter asMiddlesex I) and In the Matter of ResidentialLiving Specialists, Human Services Assistantsand Cottage Training Technicians, VinelandDevelopmental Center (MSB, decided July 7,1998). It is noted that, pursuant to a court re-mand, the Board made a subsequent decision inIn the Matter of County Correction Officers,Middlesex County (MSB, decided July 7, 1999)(referred to hereafter as Middlesex II). TheSheriff ’s Office next argues that since the num-ber of female-only positions it is requesting issmall in relation to the overall staffing, thatthere is only a de minimis restriction on maleemployment opportunities and, therefore, it isunnecessary to decide whether gender is a BFOQfor the positions in question.

Additionally, the Sheriff ’s Office contendsthat the Director’s denial of BFOQ designationswas arbitrary and capricious based on the evi-dence in the record. Specifically, in this regard,it argues that the Board found in Middlesex I,supra, that strip searches raise legitimate pri-

vacy interests and that State law generally re-quires that such searches be performed by samesex individuals. It also contends that pat downsearches raise legitimate privacy concerns. Fur-ther, the Sheriff ’s Office argues that it demon-strated that it cannot alleviate these privacyconcerns through job reassignment of currentpersonnel. Specifically, it contends that only nineof the 147 Sheriff ’s Officers are females and thisnumber of female officers is insufficient to handlethe over 3,000 female inmates that are processedby the County each year. It also states that ithas attempted to handle such problems by sum-moning female Officers from their currently-as-signed posts as needed, but such ad hoc reas-signments have caused delay and disruption incourt proceedings, and is completely ineffectivewhen more than one female Officer is needed atany given time. Additionally, it asserts that theDirector erred in finding that only 10 percent ofthe job duties described involved search-relatedactivities. The Sheriff ’s Office contends that ithas demonstrated that approximately 90 percentof the female transportation Officer’s duties, 45percent of the female court security Officer’s du-ties and 35 percent of the female patrol Officer’sduties include search or intimate surveillance-related functions. Finally, the Sheriff ’s Officeargues that the Director erred in denying theBFOQ designations when he had previously ap-proved an essentially identical application fromthe Monmouth County Sheriff ’s Office.

PBA Local 334, the union that representsHudson County Sheriff ’s Officers, and the Direc-tor of EEO/AA did not submit any argumentsfor review by the Board, despite being providedthe opportunity to supplement the record.

CONCLUSION

Initially, it is noted that the Director ofEEO/AA used the incorrect standard in deny-ing the Sheriff ’s Office’s initial application forBFOQ designations. Specifically, the Director’sinclusion of the requirement that the Sheriff ’sOffice needed to show “that grave harm to inno-cent third persons will result in the absence of

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the BFOQ” was improper. However, such an er-ror does not establish that the Sheriff ’s Office isentitled to the requested BFOQ designations.The general two-pronged test used by the Boardin assessing the need for BFOQ designations isas follows: (1) a showing that a BFOQ designa-tion is needed based on the particular job re-quirements, and (2) no other accommodationscan be made to eliminate the need for the BFOQdesignation. This test as specifically applied tothe case at hand would require the Sheriff ’s Of-fice to establish that (1) a factual basis existedfor its conclusion that the legitimate privacy in-terests of inmates and/or visitors and non-custo-dial individuals would be undermined by fail-ing to place gender-specific requirements on theappointment of individuals to serve in the titleof Sheriff ’s Officer at the requested transporta-tion, court security and patrol posts, See e.g., Inthe Matter of Hospital Attendants, HudsonCounty (MSB, decided June 11, 1996), aff’d, IMOHospital Attendants, Hudson County, Docket No.A-6071-95T1 (App. Div. July 14, 1997), citing,Diaz v. Pan Am World Airways, Inc., 442 F.2d385, 388 (5th Cir.), cert. denied, 404 U.S. 950(1971); and (2) because of the nature of the op-eration of the Hudson County Sheriff ’s Office, itcould not rearrange job responsibilities in a waythat would eliminate the clash between the pri-vacy interests asserted by the County and theemployment rights of appellants. Id., citingHardin v. Stynchcomb, 691 F.2d 1364, 1371(11th Cir. 1982).

In applying this standard to the instantmatter, the Board is particularly mindful of therepeated admonition of the courts that the lan-guage of Sec. 703(e) of Title VII, 42 U.S.C. Sec.2000e-2(e), from which the BFOQ provisions ofN.J.A.C. 4A:4-4.5 originate, and which permitssex-based discrimination “in those certain in-stances where . . . sex . . . is a bona fide occupa-tional qualification reasonably necessary to thenormal operation of that particular business orenterprise,” is meant to be an extremely narrowexception to the general prohibition of discrimi-nation on the basis of sex and that, due to thenarrow interpretation of the BFOQ exception,

the burden put on the Sheriff ’s Office to estab-lish the exception is very heavy. See Backus v.Baptist Medical Center, 510 F. Supp. 1191(1981); Fesel v. Masonic Home of Delaware, Inc.,447 F. Supp. 1346, 1350 (D. Del. 1978) aff’d mem.op., 591 F.2d 1346 (3d Cir. 1979); Dothard v.Rawlinson, 433 U.S. 321, 334 (1977).

Regarding the first prong of the test, theSheriff ’s Office argues that the privacy right offemale inmates regarding strip searches andother females who must undergo pat-downsearches establishes the need for specific female-only BFOQ designations for the requested posi-tions. In this regard, the Board found inMiddlesex I, supra, at 9, that female inmateswho are subject to strip searches have a legiti-mate privacy interest in having such searchesperformed by same-sex individuals. In this case,the Sheriff ’s Office has demonstrated that a sig-nificant percentage of the duties of a femaletransportation Officer, court security Officer andpatrol Officer deals with the strip search of fe-male detainees. The Sheriff ’s Office also contendsthat a significant percentage of the duties of suchpositions includes pat-down type searches of in-dividuals. The Sheriff ’s Office argues that indi-viduals who must undergo such searches alsohave a privacy interest and are entitled to havesuch searches performed by same-sex individu-als. In this regard, the Board found in MiddlesexII, supra, at 10, that visitors to a correctionalfacility who are subject to pat-down searcheshave a legitimate expectation that any pat-downsearch will be conducted by a Correction Officerof the same sex. See also, Ybarra v. NevadaBoard of State Prison Commissioner, 520 F.Supp. 1000, 1003 (D. Nev. 1981); Jones v.Wittenberg, 509 F. Supp. 653, 699 (N.D. Ohio1980); Jordan v. Wolke, 450 F. Supp. 213, 215(E.D. Wis. 1978); Black v. Amico, 387 F. Supp.88, 91 (W.D.N.Y. 1974). In this case, while thetitle in question is Sheriff ’s Officer, not Correc-tion Officer, it is clear that the type of searchesrequired are similar to those performed by Cor-rection Officers at correctional facilities. Basedon the evidence in the record, it is clear that theSheriff ’s Office has established that such

MSR 10:114

searches constitute a significant proportion of thejob duties of the female transportation Officer,female court security Officer and female patrolOfficer duties. Therefore, since female inmatesare entitled to same-sex strip searches, and otherfemales who are subject to pat down searches areentitled to have same-sex individuals performsuch searches, and the Sheriff ’s Office has dem-onstrated that such duties constitute a signifi-cant percentage of the duties of the positions itcontends require BFOQ designations, it has sat-isfied the first prong of the test.

Regarding the second prong of the test,the Sheriff ’s Office has argued that based on thenature of the positions and the job duties, andthe current permanent staffing level of femaleSheriff ’s Officers, it would be virtually impossibleto make alternate accommodations that wouldexclude male employees from being involved instrip searches of female inmates and pat-downsearches of other females. In this regard, afterextensively reviewing federal and State case lawconcerning the interpretation of the secondprong of the standard for granting BFOQs incases asserting a privacy interest, it appears thatcourts have tended to defer to the employer’srepresentations concerning the reasonablenessof alternatives. See e.g., Fesel v. Masonic Homeof Delaware, Inc., supra; Jones v. Hinds GeneralHospital, 666 F. Supp. 933 (S.D. Miss. 1987);Backus v. Baptist Medical Center, supra;Norwood v. Dale Maintenance System, Inc., 590F. Supp. 1410 (N.D. Ill. 1984). In this case, theSheriff ’s Office has submitted persuasive argu-ments that it is logistically impossible to makealternative accommodations to ensure that theprivacy interests of female inmates and otherfemales who interact with the Sheriff ’s Office canbe protected without the BFOQ designations re-quested. Therefore, the Sheriff ’s Office has sat-isfied the second prong of the test. Accordingly,since the Sheriff ’s Office has established its en-titlement to the requested BFOQ designations,and given that there are no arguments in oppo-sition of the County’s request, the Board grantsthe Sheriff ’s Office’s request for such designa-tions.

ORDER

Therefore, it is ordered that BFOQ desig-nations (female-only) be granted for two Sheriff ’sOfficer transportation positions, eight Sheriff ’sOfficer court security positions and threeSheriff ’s Officer patrol positions with the HudsonCounty Sheriff ’s Office.

John McKeown, a Senior Correction Of-ficer at East Jersey State Prison, Department ofCorrections (DOC), appealed the denial of SickLeave Injury (SLI) benefits.

McKeown was injured on December 21,1994, when he was assaulted by George VanWoeart, another Senior Correction Officer.Based on the assault, McKeown sustained a bro-ken finger and a fractured eye socket and wasout of work from December 22, 1994 throughJanuary 22, 1995. The DOC, while not denyingthat McKeown was assaulted, contended thatMcKeown provoked his assailant and, therefore,his injuries could not be considered work relatedunder N.J.A.C. 4A:6-1.6(c)1. Accordingly, it de-nied his request for SLI benefits. McKeown ap-pealed this determination to the Merit SystemBoard (Board) arguing that he did not provokethe attack but was performing his duties whenhe was assaulted. The Board, while generallyresolving SLI appeals on the written record,found that this matter presented a factual dis-pute as to whether or not McKeown provoked the

SLI Benefits Granted for UnprovokedAttack by Co-WorkerIn the Matter of John McKeown(Merit System Board, decided June 20, 2000)

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assault, and whether he was performing workduties at the time of the assault. The Board con-cluded that these issues could best be resolvedthrough testimonial evidence and transmittedthe matter to the Office of Administrative Law(OAL) for a hearing. See In the Matter of JohnMcKeown (MSB, decided September 3, 1997).

At the OAL, the parties entered into asettlement where it was agreed that McKeownwould withdraw his SLI appeal and the DOCwould provide McKeown with pension and senior-ity credit for the time he was out of work basedon his injuries. The Board found that this settle-ment was improper since Merit System rulesprohibit the accumulation of seniority while anemployee is in an unpaid leave status and Trea-sury rules prohibit the accumulation of servicetime for pension credit purposes under the samecircumstances. Based on this determination, theBoard remanded the matter to the OAL for fur-ther proceedings. See In the Matter of JohnMcKeown (MSB, decided October 13, 1999).

In his May 15, 2000 initial decision onremand, Administrative Law Judge R. JacksonDwyer (ALJ) found that the appellant crediblytestified regarding the incident and substan-tially corroborated Sergeant Russell Peterson’saccount of the incident. The ALJ also found VanWoeart’s testimony about the incident not cred-ible. Specifically, the ALJ found that on Decem-ber 21, 1994, McKeown was assigned to work atthe North Pre-Release Center and was to takecounts, hand other officers their off-duty weap-ons, keep track of inmates on road details, checkinmate identification cards, retrieve handcuffsand mace from other officers and answer the tele-phone. Van Woeart was the detail officer on theshift when McKeown came on duty. At that time,Van Woeart was using the telephone in the Cen-ter and McKeown asked Van Woeart to leavesince he did not belong there. Van Woeart be-came agitated and started to mumble. At thatpoint, Sergeant Russell Peterson approached theCenter and McKeown retrieved SergeantPeterson’s weapon from a locker and returned itto him. After McKeown returned the weapon,Van Woeart grabbed McKeown by the collar,

spun him around and punched him in the facethree times. In attempting to ward off VanWoeart’s assault, McKeown took a defensive pos-ture but did not make a fist or throw a punch.Additionally, McKeown did not provoke VanWoeart in any way prior to the assault.

Based on this assessment of the evidence,the ALJ concluded that McKeown’s injuries weresustained due to the non-provoked assault byVan Woeart while McKeown was in the perfor-mance of his duties pursuant to N.J.A.C. 4A:6-1.6(c)1. Accordingly, the ALJ recommendedgranting McKeown SLI benefits from December22, 1994 through January 22, 1995. At its June20, 2000 meeting, the Board agreed with theALJ’s assessment of the evidence and his rec-ommendation and granted McKeown’s appeal forSLI benefits.

Removal Upheld for FraudulentUse of Family Leave and Im-proper Use of the InternetIn the Matter of Shelly Tozer(Merit System Board, decided June 20, 2000)

Shelly Tozer, a Technical Assistant withCape May County, was removed from her posi-tion on charges of conduct unbecoming a countyemployee, misuse of county property, chronic orexcessive absenteeism and fraudulent use ofFamily Leave. On appeal to the Merit SystemBoard (Board), the matter was transmitted to theOffice of Administrative Law for a hearing.

At the hearing, the evidence showed thefollowing for the charges of chronic or excessiveabsenteeism and fraudulent use of FamilyLeave. On July 27, 1998, Tozer was absent fromwork without pay since she had exhausted all ofher sick and vacation leave time. According tothe appellant, she requested that date off to in-

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vestigate a nursing home she was consideringfor placement of her elderly mother. However,on that date, Tozer instead went to Pennsylva-nia to attend a NASCAR racing event. Addi-tionally, on August 18, 1998, Tozer applied for aFamily Leave from September 10, 1998 to Sep-tember 18, 1998, ostensibly to care for hermother in the absence of her regular caretaker.While the facts evidenced that Tozer did tend toher mother on September 10, 1998, from Sep-tember 11, 1998 to September 14, 1998, she at-tended a Hedgehog Convention in Chicago, Illi-nois.

For the charges of conduct unbecoming acounty employee and misuse of county propertythe facts showed that as part of her work duties,Tozer was assigned a personal computer withInternet access. However, Tozer’s job did notrequire that she access the Internet for anywork-related functions. Prior to uncovering in-formation regarding the charges of chronic orexcessive absenteeism and fraudulent use ofFamily Leave, Tozer’s supervisor advised Tozerabout using the Internet and Tozer told her thatall of her computer activity was work related.After uncovering evidence regarding Tozer’schronic or excessive absenteeism and fraudulentuse of Family Leave, the County investigatedthe Internet sites visited by Tozer on her workcomputer. Included in the numerous sites vis-ited by Tozer in the month of July 1998 werewww.nascar.com, the website for the NASCARracing circuit, and www.nerg.com, a site for indi-viduals interested in African Hedgehogs. Addi-tionally, the County found on the appellant’swork computer that she had been scheduled toattend the Hedgehog Convention in Chicago onSeptember 12, 1998. Further investigation un-covered a downloaded photo on Tozer’s work com-puter that was pornographic in nature.

In his initial decision, the AdministrativeLaw Judge (ALJ) upheld the charges againstTozer. With respect to the charges of chronic orexcessive absenteeism and fraudulent use ofFamily Leave, the ALJ found that the Countysustained its burden of proof in showing thatTozer fraudulently used such leave for improper

purposes and also requested time off without payunder false pretenses. With respect to thecharges of conduct unbecoming a county em-ployee and misuse of county property, the ALJfound that the County had sufficiently shownthat Tozer improperly used her work computerfor non-work-related purposes. Based on thesedeterminations, the ALJ concluded that, notwith-standing the fact that Tozer had no prior disci-plinary record, the offenses committed were soegregious as to warrant her removal from em-ployment. See West New York v. Bock, 38 N.J.500 (1962); Henry v. Rahway State Prison, 81N.J. 571 (1980). At its June 20, 2000 meeting,the Board agreed with the ALJ’s assessment ofthe evidence and his recommendation, and af-firmed the County’s removal of Tozer from herposition as Technical Assistant.

Andres Vives Rivera, a Residential Ser-vices Worker at Woodbine Developmental Cen-ter (Woodbine), Department of Human Services,was removed from his position on charges ofmaking a misstatement of material fact on hisemployment application. The facts of the casewere as follows: Rivera was employed at Wood-bine in 1984 and in the same year was convictedof a disorderly persons offense in conjunctionwith an assault on a patient. For this offense,Woodbine gave Rivera an oral reprimand. Hewas later removed from his position on othergrounds. In 1995, Rivera was rehired by Wood-bine and on his employment application an-swered “no” to the question “have you ever been

Employee Forever Barred fromPublic Employment underForfeiture StatuteIn the Matter of Andres Vives Rivera(Merit System Board, decided September 21,1999)

MSR 10:117

convicted of a crime?” In 1998, upon discover-ing Rivera’s 1984 conviction, Woodbine soughtto have him removed for making a misstatementof material fact on his employment application.

The matter was transmitted to the Officeof Administrative Law (OAL) for a hearing. Inhis initial decision, the Administrative LawJudge (ALJ) properly found that the appellanthad not made a material misstatement in fillingout the employment application. According toN.J.S.A. 2C:1-4, disorderly persons offenses “arenot crimes within the meaning of the Constitu-tion of this State.” Therefore, Rivera’s convic-tion could not be classified as a crime and hisanswer on the employment application could notbe construed as falsification. Consequently,Woodbine’s removal of Rivera on that ground wasunsustainable.

Woodbine also argued that Rivera’s ap-peal of his removal should have been barredsince “he forfeited his public employment in 1984. . . [and was] ineligible for any State employ-ment after that time.” In that regard, the ALJfound that Rivera’s conviction in 1984 touchedhis employment. He concluded that “[w]hile atribunal such as this cannot order forfeiture, itmust recognize one which occurred by operationof law.” He also stated:

Appellant must also be barred un-der the present version of the [for-feiture] statute. It empowers theappointing authority to remove aperson convicted of an offense dem-onstrating unfitness even when acourt declines to order forfeiture.N.J.S.A. 51-2g (sic). Certainly anassault on a person committed toyour care in a state institutiontouches employment and demon-strates unfitness.The Merit System Board (Board) did not

agree with the ALJ’s assessment regardingRivera’s alleged forfeiture. Based on a 1995amendment to the forfeiture law, the Board doesnot have the authority to determine whether anindividual has forfeited his public employmentas a result of a criminal conviction in cases, such

as this one, where a court has not ordered forfei-ture. See N.J.S.A. 2C:51-2(b). Neither the Boardnor the OAL is a “court” of this State as thatphrase is used in N.J.S.A. 2C:51-2. Therefore,neither the Board nor the OAL has the statu-tory authority to make the determination thatRivera forfeited his position. However, the Boarddetermined that, pursuant to N.J.S.A. 2C:51-2(d), it has the authority to determine that anindividual must be discharged from a State orlocal government position due to a permanentdisqualification from public employment basedupon a prior conviction for an offense involvingor touching on a previously held public office oremployment.

In this regard, the Board reasoned thatonly a court of this State may enter an order offorfeiture pursuant to N.J.S.A. 2C:51-2(a), whichprovides for the removal of a person from a pub-lic position held at the time that he or she is con-victed of an offense involving dishonesty; or of acrime of the third degree or above, or the equiva-lent, under the laws of New Jersey or anotherstate or the United States; or of an offense in-volving or touching such position. However, theBoard retains the authority to determine thatan individual is disqualified from public employ-ment pursuant to N.J.S.A. 2C:51-2(d), which pro-vides that:

. . . [i]n addition to the punishmentprescribed for the offense, and theforfeiture set forth in subsection a.of N.J.S. 2C:51-2, any person con-victed of an offense involving ortouching on his public office, posi-tion or employment shall be for-ever disqualified from holding anyoffice or position of honor, trust orprofit under this State or any of itsadministrative or political subdivi-sions.

N.J.S.A. 2C:51-2(d) does not provide addi-tional grounds for forfeiture pursuant to N.J.S.A.2C:51-2(b), requiring a court order, but merelyestablishes a permanent disqualification fromfuture public employment. Thus, an appoint-ing authority is precluded from hiring any indi-

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vidual convicted of an offense which touched orconcerned a previous public position. The Leg-islature acknowledged that forfeiture and dis-qualification are distinct processes when it listedeach in N.J.S.A. 2C:51-2(e), which authorizes theAttorney General or a county prosecutor to seeka waiver by the court of either a forfeiture or adisqualification based upon a conviction of a dis-orderly persons or petty disorderly persons of-fense.

N.J.S.A. 2C:51-2(e) also makes clear that,absent a waiver by the court, the name of a dis-qualified individual must be removed from aneligible list for public employment, without ref-erence to a forfeiture order from a court. Simi-larly, if a disqualified individual is erroneouslyhired by a public employer, his or her dischargeis required whenever the disqualifying convic-tion is discovered, without reference to a forfei-ture order from a court. Any question concern-ing whether or not a conviction touched or con-cerned the public position occupied by the indi-vidual at the time of the offense would be resolvedthrough administrative procedures establishedfor appeals from a list removal or a disciplinaryremoval.

An interpretation of N.J.S.A. 2C:51-2(d)which allows the Board to apply the disqualifi-cation provision is strongly supported by theAppellate Division decision Cedeno v. MontclairState University, 319 N.J. Super. 148 (App. Div.1999), aff’d, 163 N.J. 473 (2000). In 1982,Charles Cedeno pled nolo contendere to fourcounts of bribery for taking kickbacks from ven-dors while he was employed as the Director ofPurchasing for the Southeastern PennsylvaniaTransportation Authority between 1973 and1979. Id. at 151. In 1986, Montclair State Uni-versity (MSU), unaware of the bribery convic-tion, hired Cedeno as the Director of Purchas-ing. When MSU declined to renew his contractin 1996, Cedeno filed an action against the uni-versity alleging a retaliatory discharge, in vio-lation of the Conscientious Employee ProtectionAct (CEPA), N.J.S.A. 34:19-1 et seq., and dis-crimination on the basis of ethnicity and age, inviolation of the Law Against Discrimination

(LAD), N.J.S.A. 10:5-1 et seq.During discovery, MSU became aware of

Cedeno’s bribery conviction, and moved for sum-mary judgment on the ground that the wrong-ful discharge claims were barred because Cedenowas disqualified from public employment pur-suant to N.J.S.A. 2C:51-2(d). Cedeno, supra, 319N.J. Super. at 153. After granting theuniversity’s motion for leave to appeal from thedenial of its summary judgment motion, theAppellate Division held that a person who isstatutorily disqualified from obtaining publicemployment as a result of a criminal convictionmay not pursue an action for an alleged wrong-ful discharge from a public position obtained af-ter the conviction. Id. at 151.

Significantly, the basis of this holding wasthe Court’s conclusion that, pursuant to the “for-ever disqualified” provision in N.J.S.A. 2C:51-2(d), at the time of Cedeno’s application for em-ployment and throughout the course of his em-ployment, he was absolutely disqualified by stat-ute from holding the position from which heclaims to have been discharged in violation ofthe LAD and CEPA. Consequently, the Appel-late Division stated, “MSU’s administrators wereprohibited by statute from hiring plaintiff, andif they had become aware of his conviction at anytime during his employment, they would havebeen required to summarily discharge him.”Cedeno, supra, 319 N.J. Super. at 156-157.

The Court explicitly rejected Cedeno’s ar-gument that his employment at MSU could notbe terminated due to his bribery conviction with-out a court order of forfeiture pursuant toN.J.S.A. 2C:51-2(b)(2). The court noted that “thiscase does not involve the forfeiture of publicemployment which a person held at the time ofa criminal conviction but rather the disqualifi-cation from future public employment based ona prior criminal conviction.” Cedeno, supra, 319N.J. Super. at 157, n.3. The Appellate Divisionstated that the application of this permanentdisqualification is not governed by the proce-dures set forth in N.J.S.A. 2A:51-2(b), but ratherby N.J.S.A. 2C:51-2(d), “which imposes an auto-matic disqualification from public employment

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without the initiation of any court proceeding.”Id.

The Court did not discuss the appropriateprocedure for the threshold determination forthe automatic disqualification: whether or notthe offense touched and concerned the publicemployment. Clearly, if a court previously or-dered a forfeiture of employment based onN.J.S.A. 2C:51-2(a)(2), then the disqualificationapplies. If, however, a forfeiture pursuant toN.J.S.A. 2C:51-2(a)(1) or (3) did not require a“touches and concerns” analysis, or no forfeitureorder was ever sought, then a challenge to a dis-qualification requires that a “touches and con-cerns” analysis be conducted. Unlike the forfei-ture provision in N.J.S.A. 2C:51-2(a), the plainlanguage of the statutory disqualification pro-vision, and its interpretation by the Cedenomajority, clearly do not require that a court de-termine the applicability of the disqualification.Thus, the “touches and concerns” determinationis left to the Board in the context of an appealfrom a list removal or termination of employ-ment based on the statutory disqualification.

Accordingly, based upon the plain lan-guage of N.J.S.A. 2C:51-2(d), as interpreted bythe Appellate Division in its published decisionin Cedeno, the Board found that Rivera was for-ever barred from public employment. SinceRivera’s conviction was for physically abusing apatient at Woodbine during his previous employ-ment at that facility, his offense clearly touchedand concerned his public employment at the timeof the offense. Moreover, there is no evidencethat the Attorney General or the county pros-ecutor sought or received a court order waivingthe disqualification provision for the appellant’sdisorderly persons offense pursuant to N.J.S.A.2C:51-2(e). Therefore, the Board ordered that,pursuant to N.J.S.A. 2C:51-2(d), Rivera was ab-solutely and automatically barred from regain-ing his erroneously conferred status as a Resi-dential Services Worker at Woodbine and upheldhis removal.

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Several rule initiatives adopted or under review will help employees and appoint-ing authorities better use and understand merit system rules and, in some cases, encour-age flexibility in merit system employment.

Among recently adopted rules, amendments to N.J.A.C. 4A:3-3.8 permit local ap-pointing authorities to request the establishment of intermittent titles. Before these amend-ments took effect on June 19, 2000, intermittent titles were only allowed in State service.With the adoption of these amendments, however, local appointing authorities can nowfill vacancies on an on-call or seasonal basis, within the framework of noncompetitive,career service appointments. To seek the Department of Personnel’s approval of inter-mittent titles in local service, a local appointing authority should contact its customerservice team.

Also recently adopted is a new rule implementing former Governor Whitman’s schoolvolunteer leave program, N.J.A.C. 4A:6-1.24. This program, effective with the currentschool year, allows State employees in the career, senior executive and unclassified ser-vices up to 20 hours per calendar year to participate in an academically beneficial schoolactivity in New Jersey. An employee need only request the leave in advance and providewritten verification from the school principal or designee of his or her participation in theschool activity. The school volunteer leave program thus helps schools meet the educa-tional needs of students while providing State employees with the opportunity to becomemore involved in their communities. Local appointing authorities may establish theirown school volunteer leave programs.

Benefiting both employees and appointing authorities are amendments to the do-nated leave rule, N.J.A.C. 4A:6-1.22, adopted on December 5, 2000 and effective in Janu-ary, 2001. First, the amendments extend eligibility to employees who are organ donors,including bone marrow donors. Second, these amendments will help determine anemployee’s eligibility for donated leave. Prior to their adoption, for an employee to beeligible for participation in the program, the employee had to be suffering from a “cata-strophic health condition or injury,” or be needed for the care of an immediate familymember with such a condition or injury. However, interpretations of the term “catastrophichealth condition or injury” have varied and caused confusion. Following exhaustive re-search of donated leave programs of other public and private employers, the Merit SystemBoard proposed and has now adopted a new, workable definition of the term.

Effective on November 6, 2000 was another rules clarification, this one concerningthe maximum age requirement of 35 for municipal police officer eligibility. Former expe-rience as a New Jersey Transit Police Officer, a police officer for the Southeastern Penn-sylvania Transit Authority (SEPTA) and a police officer for Amtrak may be used to bringan individual’s age below 35. Additionally, the experience of anyone previously employedby a State or Federal law enforcement agency or another public entity, who performedduties comparable to the positions listed in N.J.S.A. 40A:14-127.1 (municipal police of-

RULES ROUND-UP

By Elizabeth J. RosenthalPersonnel and Labor Analyst

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ficer, sheriff ’s officer, county police officer and State trooper), may be used to offset age.These amendments will assist municipalities in finding qualified and experienced indi-viduals to appoint as municipal police officers. However, the amendments do not changethe statutory prohibition against using these age offsets if an individual’s actual age isover 45, unless he or she was laid off for reasons of economy or efficiency.

A practice taking place in some public safety agencies was the impetus for a ruleamendment to N.J.A.C. 4A:10-1.1, regarding violations and enforcement of merit systemlaw and rules. Although subsection (e) prohibits the payment and acceptance of compen-sation to affect a personnel action, it appeared that stronger, more specific language wasnecessary to address situations in which individuals in some local police and fire depart-ments were inducing superior officers to retire with substantial sums of money not longbefore the expiration of an applicable promotional list. Therefore, additional language insubsection (e) specifically prohibits the offer, payment, acceptance or solicitation of a re-tirement or resignation incentive between an employee and his or her superior in orderfor the employee to gain a promotion or the opportunity for a promotion. This amend-ment was effective on December 18, 2000.

Two other rule amendments are under review for proposal in the near future. Pre-proposed for preliminary comment are amendments to N.J.A.C. 4A:2-2.12, regarding theawarding of counsel fees to an appellant in a major disciplinary matter who has prevailedon all or substantially all of the primary issues. Currently, the rule sets forth some gen-eral criteria for setting counsel fees: the time and labor required, and the customaryhourly rate. However, in implementing the rule, the Merit System Board had, until re-cently, engaged in the uniform practice of granting counsel fees at the hourly rate of $125for a partner and $100 for an associate. A recent court decision, In the Matter of EricFlake, Docket No. A-3612-97T5 (App. Div., decided April 21, 1999), found that the Boardwas, in effect, engaging in rulemaking by uniformly applying those rates.

Therefore, specific criteria for setting hourly rates have been drafted and the Boardhas solicited comments from interested parties. The suggested criteria follow the factorsset forth in the Rules of Professional Conduct and a landmark court decision, Rendine v.Pantzer, 141 N.J. 292 (1995). Once the comments received regarding the Board’s pre-proposal are evaluated, amendments will be formally proposed and an opportunity forfurther comment provided.

Also under review are draft amendments and a draft new rule regarding intergov-ernmental transfers. A successful intergovernmental transfer pilot program establishedby the Commissioner of Personnel expired on August 31, 2000, and the Merit SystemBoard plans to codify the program in the rules. The drafts are being circulated to theCommissioner’s statutory advisory boards. They provide a mechanism to inject addi-tional flexibility into merit system appointments. Intergovernmental transfers are in-tended to achieve three broad goals: provide appointing authorities with experiencedemployees, which would help eliminate the need for costly training; facilitate placementof employees who may wish to work for another jurisdiction for professional or personalreasons; and provide an alternative to employees facing layoffs due to economy, efficiencyor other related reasons.

As the Department of Personnel moves forward into the 21st century, more ruleinitiatives such as the ones described here are expected to be proposed to add versatilityand strength to the merit system.

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FROM THE COURT

County Correction Officer RobertHammond received a Preliminary Notice of Dis-ciplinary Action containing five charges, involv-ing conduct unbecoming a public employee,sexual harassment, verbal abuse of a co-worker,insubordination and refusing to cooperate withan investigatory interview. Following a depart-mental hearing, the appointing authority issueda Final Notice of Disciplinary Action sustainingthe first three charges but dismissing the lasttwo. The Final Notice imposed a 10-day suspen-sion on the appellant; however, it was thereafteramended to include a written agreement that,in lieu of a 10-day suspension, he would receivea five-day suspension and forfeit five vacationdays.

Appellant filed an appeal with the MeritSystem Board in response to the appointingauthority’s decision sustaining the first threecharges. The matter was referred to the Office

Only Charges on FNDA Appealableto the BoardRobert Hammond v. Monmouth CountySheriff’s Department317 N.J. Super. 199 (App. Div. 1999)

of Administrative Law (OAL) for a hearing. Atthe hearing before the Administrative LawJudge (ALJ), the appointing authority moved toresurrect the remaining two charges over theappellant’s objection. The ALJ denied the mo-tion, concluding that expanding the charges atissue would be contrary to N.J.A.C. 4A:2-2.6(d),which requires the issuance of a Final Notice ofDisciplinary Action within 20 days of the depart-mental hearing advising the employee of thecharges sustained and the penalty to be imposed.Following the OAL hearing, the ALJ dismissedthe charges sustained in the Final Notice, find-ing that the complainant’s testimony was notcredible in describing the alleged incident. TheMerit System Board accepted and adopted theALJ’s findings and conclusions.

On appeal to the Superior Court, Appel-late Division, the appointing authority chal-lenged the ALJ’s credibility determinations andan evidentiary ruling. The court rejected thesearguments, holding that the Board was “wellwarranted in relying upon the administrativelaw judge’s credibility determinations and otherfindings of fact…” and the ALJ was within hisdiscretion regarding the admission of testimonyconcerning past conversations between the ap-pellant and the complainant.

The appointing authority further argued,however, that, on appeal to the Board, it shouldhave been permitted to go forward on the twocharges that it had earlier dismissed. The courtheld that a public employer is not empoweredby law to do so after dismissing the charges atthe departmental hearing. The court noted thatthe Board had argued in its brief before the courtthat it could have considered the dismissedcharges below and asked that the matter be re-manded for that purpose. Rejecting this argu-ment, the court held that, as a major disciplin-ary appeal to the Board is from an appointingauthority’s Final Notice of Disciplinary Action,allowing consideration of dismissed charges atthe Board’s level would violate “due process” and“fair play.” The court further stated that theBoard’s original determination should be consid-ered binding.

Following are recent Appellate Divisionsdecisions in Merit System cases. As theAppellate Division opinion IMO FrankHoffman has not been approved for pub-lication, its use is limited in accordancewith R. 1:36-3 of the N.J. Court Rules.

NOTE: IMO Robert Hammond and IMO Frank Hoffmanhave been summarized by staff. The summaries have beenneither reviewed nor approved by the Appellate Division.In the interests of brevity, portions of any opinion maynot have been summaried.

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The Superior Court, Appellate Division,reversed and remanded a decision of the MeritSystem Board in which the appellant was deniedback pay for the period of a six-month suspen-sion as well as for a period of delay determinedto be attributable to the appellant’s attorney.

The decision concerns the effect ofappellant’s noncompliance with a “Final Warn-ing” the appointing authority issued to him in1992 regarding chronic or excessive absences.Specifically, the warning indicated that appel-lant would be removed from employment if hewas absent for more than 15 days a year in anyof the next three years, even if the absences werejustified by doctor’s notes. In April, 1994, hesustained serious injuries in an automobile ac-cident which, he said, necessitated his absencefrom work until July, 1994. Upon his return, theappellant was served with a Preliminary Noticeof Disciplinary Action and removed following ahearing. All of the charges emanated from his1994 work absence due to the car accident.

On appeal to the Merit System Board, thematter was referred for a hearing at the Office ofAdministrative Law (OAL). The AdministrativeLaw Judge (ALJ) found that the appellant vio-lated the conditions of the warning, but askedwhether such a violation should lead to his re-moval, given the fact that the appointing author-ity did not dispute that his 1994 absence wasbeyond his control. The ALJ therefore recom-mended a six-month suspension in lieu of termi-nation. As the matter was adjourned twice in aone-year period at the request of appellant’s at-torney, the ALJ also recommended that back paydate back to the date the OAL proceedings com-menced, over one year after the six-month sus-pension would have concluded.

Back Pay Not Reduced for Periodof Attorney’s DelayIn the Matter of Frank Hoffman v.Hudson County Department of PublicSafetyA-4124-96T2, (App. Div. June 22, 1999) cert.denied, 163 N.J. 80 (2000)

The Merit System Board accepted andadopted the ALJ’s findings of fact and conclu-sions of law and the recommendation that theremoval be modified to a six-month suspension.The Board also determined that appellant wasnot entitled to counsel fees, as he had not pre-vailed on “all or substantially all of the primaryissues” in the matter, since the Board had up-held the charges of chronic and excessive absen-teeism. See N.J.A.C. 4A:2-2.12(a).

Appellant then took this matter to theSuperior Court, Appellate Division, regardingthe issues of back pay and counsel fees. The courtnoted that the issue of back pay is controlled bySteinel v. City of Jersey City, 99 N.J. 1 (1985).As no “equitable considerations or special cir-cumstances” existed that would justify the de-nial of back pay from the date of reinstatement,such as delay of the proceedings by the appel-lant, the appellant was entitled to back pay fromthe date of his reinstatement following his six-month suspension. The court indicated that theappellant did not himself cause any of the de-lays. For the appellant to be held accountable,the court stated, the record would have to showthat his attorney had engaged in unprofessionalconduct and that it would be equitable to havethe appellant bear the financial cost of this con-duct. The court also found that the delays ap-peared to have had legitimate reasons, and someof the delays actually were attributable to theappointing authority’s attorney and the ALJ.Therefore, the court found unreasonable theBoard’s decision denying appellant back payback to the end of his six-month suspension.

However, the court took this holding a stepfurther by noting that, even if the appellant’sattorney had engaged in misconduct, appellantshould not be held accountable (absent demon-strable prejudice to the appointing authority).The court explained that, were the appellant soheld accountable, he would then be entitled toindemnification by the attorney, which wouldimpinge on the judicial power to discipline at-torneys and therefore be of questionable consti-tutionality.

With regard to the issue of counsel fees,

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the court found that the appellant had not pre-vailed on all or substantially all of the primaryissues presented to the Board. Therefore, thecourt concluded, the appellant was not entitledto counsel fees.

The court’s decision did not cite N.J.A.C.4A:2-2.10(d)4, a rule provision directly on pointwhich states as follows: “The award of back payis subject to reduction by any period of delay ofthe appeal proceedings caused on behalf of theemployee.” As the Board believed that the deci-sion had serious implications for the disciplin-ary appeal process, it filed a petition for certifi-cation to the New Jersey Supreme Court. How-ever, that court denied the petition.

The Conscientious Employee ProtectionAct (CEPA), N.J.S.A. 34:19-1 to -8, includes aprovision that “the institution of an action [un-der CEPA] shall be deemed a waiver of the rightsand remedies available under any other con-tract, collective bargaining agreement, State law,rule or regulation or under the common law.”N.J.S.A. 34:19-8. The Merit System Board(Board) held that this provision precludes a ca-reer civil service employee who has filed a CEPAaction against his employer from appealing tothe Board from a disciplinary action that is alsoone of the grounds of the employee’s CEPA claim.We conclude that a career civil service employeewho has filed a CEPA action is not precludedfrom appealing a disciplinary action to the Boardsimply because the employee alleges that hisemployer instituted disciplinary charges againsthim for the same retaliatory reasons alleged inthe CEPA action.

Appellant Robert Scouler is employed byrespondent City of Camden (City) in the careercivil service position of construction official. OnNovember 24, 1997, the City served Scouler witha preliminary notice of disciplinary action forinsubordination, neglect of duty and misuse ofpublic property. The notice indicated that thealleged insubordination consisted of Scouler ig-noring repeated requests by the Director of De-velopment and Planning for information andreports, and that the alleged neglect of duty con-sisted of Scouler’s failure to produce and delivermonthly reports. At a departmental hearing, thecharge of misuse of public property was dis-missed, but Scouler was found guilty of insubor-dination and neglect of duty, and suspended forthirty days. Scouler appealed this disciplinaryaction to the Board, which referred the matter

CEPA Claim Does Not PrecludeEmployee’s Appeal to the BoardRobert Scouler v. City of Camden332 N.J. Super. 69 (App. Div. 2000)

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to the Office of Administrative Law (OAL). While Scouler’s civil service appeal was stillpending, he filed an action in the Superior Courtagainst the City and various City officials, al-leging that they had retaliated against him, inviolation of CEPA, because he had objected toand refused to participate in violations of theUniform Construction Code and other laws andhad reported those violations to the Departmentof Community Affairs. One of the retaliatory actsalleged in Scouler’s CEPA complaint was theCity’s disciplinary action that was the subject ofhis appeal to the Board.1

Subsequently, an Administrative Law Judge(ALJ), relying upon N.J.S.A. 34:19-8, issued arecommended initial decision which concludedthat “[w]here . . . a civil service employee electsto file a superior court complaint against theappointing authority, citing the CEPA and in-volving the same or substantially the same is-sues as are involved in the civil service case, . . .[t]he CEPA action is the exclusive means of de-termination of the parties’ rights and duties anda civil service administrative case involving thesame subject matter must be dismissed.” TheBoard adopted this recommended decision anddismissed Scouler’s appeal of the thirty-day sus-pension imposed upon him by the City. Scoulerappeals the dismissal of his civil service disci-plinary appeal, and we now reverse. In Young v. Schering Corp., 141 N.J. 16(1995), the Supreme Court addressed the scopeof the CEPA waiver provision involved in thisappeal. The issue in Young was whether thisprovision precludes an employee who has filed aCEPA action from pursuing not only related com-mon-law claims but also other claims that aresubstantially independent of the retaliationclaim. The Court found that the purpose of thewaiver provision is solely to “prevent an em-

ployee from pursuing both statutory and com-mon-law retaliatory discharge causes of action”based on the same operative facts. Id. at 27. Forthis reason, the Court rejected “the overly lit-eral reading of the waiver provision urged bydefendants,” id. at 25, and decided that this pro-vision should be construed “narrowly,” id. at 27.Accordingly, the Court held that “the waiver pro-vision applies only to those causes of action thatrequire a finding of retaliatory conduct that isactionable under CEPA.” Id. at 29. The civil service disciplinary action institutedby the City against Scouler does not involve a“cause[ ] of action that require[s] a finding of re-taliatory conduct that is actionable underCEPA.” Scouler is a permanent employee in thecareer civil service.2 The City may suspend ortake other disciplinary action against such anemployee only for neglect of duty or other goodcause. N.J.A.C. 4A:2-2.3. The Civil Service Actentitles a career civil service employee to a de-partmental hearing before the employer canimpose a suspension of more than five days,N.J.S.A. 11A:2-13, and if the employer sustainsa disciplinary charge at a departmental hear-ing, the employee is entitled to appeal to theBoard, N.J.S.A. 11A:2-14, which may refer thematter for a hearing before an ALJ in accor-dance with N.J.A.C. 4A:2-2.9(b). At that hear-ing, the employer has the burden of proving thatthe employee is guilty of misconduct warrant-ing disciplinary action. N.J.S.A. 11A:2-21. More-over, if the Board concludes that the charge hasbeen sustained, it must make a de novo deter-mination of the appropriate disciplinary action.Henry v. Rahway State Prison, 81 N.J. 571, 576-80 (1980). Thus, the “cause of action” at a civilservice disciplinary hearing is not the employee’sclaim that the employer has taken “retaliatoryaction,” but rather the employer’s claim that the

1 Scouler also alleged that defendants had retaliated against him byundertaking to eliminate his position by “privatizing” his job respon-sibilities and by a course of “threatening, intimidation, hostile, abu-sive and humiliating” conduct.

2 Only a career civil service employee has the right to appeal adisciplinary action to the Board. N.J.S.A. 11A:2-6; N.J.A.C. 4A:2-2.1(a).

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employee was guilty of misconduct. Any claimthat the disciplinary charge was brought in re-taliation for conduct protected by CEPA is solelya matter of defense, which the employee has noburden to prove in order to be exonerated. There-fore, the CEPA waiver provision does not pre-clude a career civil service employee who hasfiled a CEPA action from appealing a disciplin-ary charge to the Board simply because the em-ployee alleges that the charge was instituted forthe same retaliatory reasons alleged in the CEPAaction. Furthermore, the CEPA waiver provisiondoes not require the exclusion of evidence of re-taliation in a civil service disciplinary hearing.N.J.S.A. 34:19-8 was only intended “to curtailessentially cumulative remedial actions.”Young, supra, 141 N.J. at 27. It is not an evi-dentiary rule which requires exclusion of evi-dence with obvious probative value. When anemployee denies the factual allegations under-lying a disciplinary charge, the ALJ must weighthe credibility of the employer’s allegations ofmisconduct, which frequently consist of asupervisor’s testimony, against the employee’sdenials. In making this credibility determina-tion, one obvious consideration is whether thesupervisor may have had a motive other thanthe faithful performance of his public duties forfiling the charge and testifying against the em-ployee. Consequently, if N.J.S.A. 34:19-8 wereconstrued to preclude an employee who had fileda CEPA action from presenting evidence of re-taliation at a civil service disciplinary hearing,it could result in the exclusion of evidence criti-cal to a fair and reliable evaluation of the cred-ibility of the witnesses testifying in support ofthe charge. We also note that neither N.J.S.A. 34:19-8 norany other section of CEPA precludes an employeewho alleges a retaliatory motive for the institu-tion of a civil service disciplinary charge fromsubsequently filing a CEPA action. Thus, if theOAL had scheduled a hearing on Scouler’s civilservice appeal prior to the expiration of the one-year period for filing a CEPA action, see N.J.S.A.34:19-5, Scouler could have pursued his civil ser-

vice appeal, and presented evidence of the City’salleged retaliatory motive for bringing the dis-ciplinary charges, and then initiated a CEPAaction after the civil service appeal was con-cluded. An employee’s right to appeal a disciplin-ary charge and present evidence of retaliationin defense of the charge should not turn on thefortuitous circumstance of whether the OAL andBoard complete the proceedings in a civil ser-vice disciplinary appeal before expiration of thelimitations period for filing a CEPA action.Therefore, consistent with the intent of N.J.S.A.34:19-8 to only “prevent an employee from pur-suing both statutory and common-law retalia-tory discharge causes of action,” Young, supra,141 N.J. at 27, we conclude that a career civilservice employee who files a CEPA action is notprecluded from pursuing an appeal of a relateddisciplinary charge to the Board, and that theemployee may present evidence of retaliation atthe hearing on the charge. Accordingly, the Board’s decision dismissingScouler’s appeal is reversed and the case is re-manded for a hearing on the merits.

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Phyllis L. AliNicholas F. AngiuloA. Peter BooneElaine M. DundalaRebecca EvansTimothy M. Griscom

The Merit System Reporteris published semi-annually by the New Jersey Department of Personnel.

Janice Mitchell MintzCommissioner

Department of Personnel

Henry MaurerEditor-in-Chief

Editorial and Production Staff

Nancy C. GilbertSybil JanowitchElizabeth A. NapolitanoDon PappanoElizabeth RosenthalElizabeth Wood

New Jersey Department of PersonnelDivision of Merit System Practices and Labor Relations

P. O. Box 312Trenton, New Jersey 08625-0312

www.state.nj.us/personnel

Appeals Staff Contributing to this Issue: Steve Livingston