warwas v. city of plainfield

8/14/2019 Warwas v. City of Plainfield

1/9

State of New JerseyOFFICE OF ADMINISTRATIVE LAW

INITIAL DECISION

OAL DKT. NO. CSV 11781-06

AGENCY DKT. NO. 2007-2055-I

IN THE MATTER OF JADWIGA WARWAS,CITY OF PLAINFIELD.

___________________________________

Stephen E. Klausner, Esq., for appellant

David I. Minchello, Esq., for respondent (Ventantonio & Wildenhain, P.C.,

attorneys)

Record Closed: October 29, 2007 Decided: December 12, 2007

BEFORE JAMES A. GERAGHTY, ALJ:

Appellant Dr. Jadwiga Warwas appeals her removal as Health Officer by the City

of Plainfield (City or Plainfield) effective September 11, 2006 for insubordination and

conduct unbecoming a public employee because she worked part time for the City of

Paterson from home disseminating health-related information at a computer while

restricted to home on extended sick leave from Plainfield. She appealed to the Merit

System Board which transmitted the matter to the Office of Administrative Law (OAL) on

December 19, 2006. After three scheduled unsuccessful settlement conferences from

January through March 2007, the matter was set down for hearings on September 27 and

October 2, 2007. Counsel for the City requested an adjournment which appellant

opposed. The motion was denied and a hearing was held September 27, 2007. The City

presented one witness, Ms. Karen Dabney, City Personnel Director. Dr. Warwas testified

on her own behalf. The parties submitted post-hearing briefs, the last of which was

received by the OAL on October 29, 2007, the day on which the record closed.

STATEMENT OF THE ISSUES

New Jersey is an Equal Opportunity Employer


2/9


The issue is whether appellant committed misconduct as City Health Officer which

warranted removal.

FACTUAL BACKGROUND

The testimony and documentary evidence of record, establishes the following

uncontested FACTS:

Jadwiga Warwas, M.D. is a licensed physician who was hired by the City of

Plainfield as Health Officer on October 1, 2003. Her tenure with Plainfield has been

tumultuous. A subordinate accused her of harassment for shouting at her. A municipal

court dismissed the charges. Daniel Williamson, Esq., the private prosecutor in the

case, became Plainfield Corporation Counsel who, along with City Administrator

Carlton McGee, brought two minor disciplinary actions against her, appeals from which

are pending. In addition, Dr. Warwas is a party defendant in a discrimination case

against the City pending in Superior Court brought by the Chief Sanitarian. So too, Dr.

Warwas figures as a witness in a lay off challenge by three fomer Health Department

employees pending at the OAL.

Due to stress from these contentious matters, Dr. Warwas developed peptic

ulcers and clinical depression which resulted in her taking sick leave from July 25,

2006 through September 8, 2006. Her attending physician certified on five occasions

through September 2006 that Dr. Warwas, due to a personal health problem, was

restricted to home and could not work/attend school. (Exhibit R-1). The City granted

her leave pursuant to the Family Medical Leave Act. At the time, Dr. Warwas had

accrued 364 hours of sick leave and 243 hours of vacation time from which the City

debited 185.5 sick hours. (Exhibit R-2).The City received an anonymous message that, while on sick leave, Dr. Warwas

was working part time for the City of Paterson. The City requested the City of Paterson

to disclose public records verifying whether and to what extent Dr. Warwas worked for

the City of Paterson from July 24, 2006 to August 29, 2006. (Exhibit R-3). The City of

Paterson responded under cover of a letter dated December 13, 2006 revealing that on

2


3/9


different occasions during that time, appellant worked as a Quality Assurance

Coordinator from one to six and a half hours on different days for a total of 109 hours.

(Exhibit R-4). The response indicated that she originally had been hired September 15,

2003. As part of the investigation, Catherine Correa, Director of the Paterson

Department of Human Services, on October 3, 2006, issued a To Whom It May

Concern letter stating :

As the immediate Supervisor of Dr. Jadwiga Warwas, M.D., I hereby

certify that her duties and assignments with my Division has (sic) not

required her presence in the office in Paterson. A great deal of work

requires the collection and electronic submission of HIV/AIDS information

which is transmitted electronically from her home.

In reference to the enclosed Attachment C, please be advised that Dr.

Warwas was not working from the Ryan White Title One Paterson Office.

(Exhibit R-5).

By Preliminary Notice dated September 14, 2006, the City charged appellant

with insubordination and conduct unbecoming a public employee by having . . .

reported to work for the City of Paterson . . . [although she] worked various hours (in

the position of Quality Assurance Coordinator) from 7/24/06 to 8/29/06, even though

(per her health certificates) she was restricted to home and could not work/attend

school while receiving sick pay compensation from the City. (Exhibit P-1). The City

conducted a disciplinary action hearing on September 30, 2006 at which Corporate

Counsel Williamson represented the City. Hearing Officer Martin Hellwig, Director of

Public Safety, found that the City sustained the charges against Dr. Warwas and

recommended her termination.1

On October 23, 2006, the City issued a Final Notice ofDisciplinary Action ordering Dr. Warwas removal.

OAL HEARING

1Respondents September 26, 2007 post hearing brief Exhibit H.

3


4/9


City Personnel Director Karen Dabney testified at the OAL hearing that the

Plainfield Municipal Code proscribes outside employment without prior approval upon

written application. Plainfield Municipal Code Section 11:11-2 (Exhibit R-6). When Dr.

Warwas was hired in 2003, the City Employee Handbook similarly proscribed outside

employment without prior approval citing the Municipal Code. (Exhibit R-7). However,

the Employee Handbook was amended March 15, 2004 and stated, as to Conflicts of

Interest:

Employees are allowed to hold outside employment as long as it does not

interfere with their City job responsibilities. Employees are prohibited

from engaging in outside employment activities while on the job or using

City time, supplies or equipment in the outside employment activities.

The Department Director with the authorization of the City Administrator

may request employees to restrict outside employment if the quality of the

employees work diminishes. (Emphasis added)

(Exhibit P-2).

The manual states that it may be amended or supplemented without notice at the

discretion of the City. It also states that, if in conflict with the Municipal Code, a union

contract, or a State statute or regulation, the latter prevails.

Dr. Warwas testified that when she was hired she submitted a resume that

disclosed her part-time work for the City of Paterson. She explained that the work

entailed compiling and disseminating medical information regarding infectious diseases

to Paterson officials and residents. She did the work on weekends and evenings on

her own time. The City officials who conducted the interview offered her the Health

Officer position without requiring her to abandon work as Quality AssuranceCoordinator. For some unexplained reason, this resume was neither in Dr. Warwas

personnel file nor produced in discovery. It is undisputed that Dr. Warwas did not

submit a formal written request to continue this part-time work before commencing sick

leave in July 2006. She testified that she did not understand that there was such a

requirement given the fact that the resume itself constituted written disclosure. At the

4


5/9


OAL hearing, in response to a question from the tribunal, Ms. Dabney candidly and

credibly testified that if Dr. Warwas had submitted a written request for permission to

continue working as a Quality Assurance Coordinator from her home while on sick

leave, permission probably would have been granted.

Ronald A. West, the Plainfield Director of Finance and Administration, submitted

a To Whom It May Concern letter dated October 31, 2006 in the nature of a character

reference for Dr. Warwas. He praised her for addressing certain health issues in the

community and for liaising with local and State officials concerning bioterrorism.

(Exhibit P-5). It is noteworthy that the Plainfield Municipal Code states that outside

employment requests shall not be approved if: (1) it will interfere with an employees

position through a conflict of interest or (2) it shall exceed twenty hours per week.

Plainfield Municipal Code Section 11:11-2(c). The City never averred that Dr. Warwas

part-time work for the City of Paterson would have been either excessive or likely to

interfere with her performance as Health Official.

The City argues, that assuming arguendo appellant committed misconduct,

removal is appropriate because she had been subject to prior disciplinary action.

Before taking extended sick leave, Dr. Warwas went on vacation from June 19, 2006

until July 7, 2006. The contention is that she failed to designate an Acting Health

Officer during her absence. On July 6, 2006, City Administrator Carlton McGee issued

Dr. Warwas a Notice of Disciplinary Action charging her with neglect of duty. The

sanction entailed minor discipline, a five-day suspension without pay. (Exhibit R-8).

Dr. Warwas met with the City Administrator and Corporation Counsel Will iamson during

which they agreed to withdraw the suspension if Dr. Warwas would resign. The City

understood her to have acquiesced. Dr. Warwas explained that she had consulted with

counsel and decided to defend against the suspension. Apparently, Dr. Warwas

worked without pay on the days she would have been suspended. Considering hernon-compliance with the suspension to constitute insubordination, the City again

disciplined her by imposing an additional three-day suspension. (Exhibit R-9;

Collective R-10). These matters are pending at the Merit System Board. At the OAL

hearing in the current matter, Dr. Warwas authenticated a memo she sent to Mr. McGee

on May 15, 2006 alerting him that Mr. Randy Moscaritolo, Senior Registered

5


6/9


Environmental Health Specialist, would replace her during her vacation as he had the

previous year. (Exhibit P-3).

FINDINGS OF FACT

Based on the testimony and documentary evidence of record, I FIND:

1. Dr. Jadwiga Warwas disclosed her part-time position as a Quality Assurance

Coordinator with the City of Paterson in writing on her resume during her

interview for the position of Health Officer with Plainfield. No City official

objected to her continuing this employment or required her to abandon it as a

condition of employment with the City.

2. Dr. Warwas was approved for sick leave by the City from July 24, 2006 until

September 8, 2006 based on certificates from a physician, Dr. Eugene M.

DeSimone, that due to personal health problems she is restricted to home.

3. From July 25, 2006 until September 8, 2006 Dr. Warwas remained home on

sick leave at full pay, utilizing sick and vacation time to which she was

entitled. During this time, she continued to work part time for the City of

Paterson as Quality Assurance Coordinator for 109 paid hours. This work

entailed transmitting information on the internet from a computer at home. At

no time did she work from any office of the Department of Human Services in

Paterson, or elsewhere on behalf of the City of Paterson.

4. Dr. Warwas work as a Quality Assurance Coordinator for the City of

Paterson was not on City time nor in any way concealed. In effect, she

complied with what was essentially home confinement contrary to the

Preliminary Notice of Disciplinary Action specification. The March 15, 2004

City Employee Handbook, in effect at the time of appellants sick leave,

expressly authorizes non-conflicting outside employment provided theemployee is not on the job using City time. Appellant engaged in outside

employment on her own unused sick or vacation time for which she was

charged during her sick leave.

LEGAL AUTHORITY AND ANALYSIS

6


7/9


The Civil Service Act and implementing regulations govern the rights and

obligations of certain State employees. N.J.S.A. 11A:1-1, et seq.; N.J.A.C. 4A:1-1.1, et

seq. In disciplinary matters, the Appointing Authority has the burden of proof. N.J.A.C.

4A:2-1.4. Major discipline includes fine or suspension for more than five working days

or removal. Id. at section 2-2.2. Insubordination and conduct unbecoming a public

employee are grounds for discipline. Id. at section 2-2.3. An appellant has the right to

de novo review of final disciplinary action. Cliff v. Morris County Bd. Of Soc. Servs.,

197 N.J. Super 307 (App. Div. 1984) revd in part 101 N.J. 251 (1985)

The City of Plainfield Municipal Code requires employees to apply for approval

to engage in outside employment. The Employee Handbook in effect when Dr. Warwas

was hired tracked the Code. However, the Handbook was amended within a year to

delete the requirement that an employee make a written application so long as the

outside work does not interfere with the employees City responsibilities. Therefore, Dr.

Warwas did not in any sense fail to comply with the Employee Handbook by not

submitting a written application for permission to do what she had already disclosed in

2003. Moreover, the City Personnel Director quite reasonably testified that had Dr.

Warwas submitted a written application, it would have been granted. Indeed, there is

nothing about Dr. Warwas work from home, not in Paterson, at a computer on her own

vacation and sick time that violated any rule or regulation governing her employment.

As the Code requirement for written authorization was not amended at the time the

revised Employee Handbook was adopted, and therefore arguably superseded the

Handbook to the extent in conflict, suffice it to say that the issue is not whether Dr.

Warwas violated the Municipal Code by neglecting to apply for continued approval of

her outside employment, but rather whether her failure to do so constituted misconduct.

Since, as she testified, she was unaware of the requirement or, more to the point, that it

prevailed over the amended Employee Handbook, Dr. Warwas could not have had therequisite mens rea for misconduct. In other words, Dr. Warwas violation, such as it

might have been, was not knowing and willful. To the contrary, as she disclosed her

part-time employment in her resume in 2003, she assumed that nothing more was

required of her.2

2Since the tribunal accepts Dr. Warwas testimony that her resume disclosed the outside employment,

there is no need to reach the spoliation argument raised by appellants counsel which, if appropriate,

7


8/9


Since the tribunal finds that appellant committed no misconduct in this matter,

there is no need to consider the question of prior misconduct.

CONCLUSIONS

Based on the foregoing findings of fact and legal authority, I CONCLUDE that

Dr. Jadwiga Warwas was neither insubordinate nor guilty of conduct unbecoming a

public official while working part time as Quality Assurance Coordinator for the City of

Paterson from July 24, 2006 through September 29, 2006 while on sick leave as Health

Officer in the City of Plainfield. Accordingly, I further CONCLUDE that appellant

committed no misconduct.

DISPOSITION AND ORDER

Based on the foregoing findings of fact and conclusions of law, I DECIDE this

matter in favor of appellant and ORDER that the charges against her be DISMISSED

and that appellant be reinstated to her position as Health Officer with full back pay,

benefits, pension rights, and attorneys fees.

I hereby FILE my initial decision with the MERIT SYSTEM BOARD for

consideration.

This recommended decision may be adopted, modified or rejected by the MERIT

SYSTEM BOARD, which by law is authorized to make a final decision in this matter. If

the Merit System Board does not adopt, modify or reject this decision within forty-five

days and unless such time limit is otherwise extended, this recommended decision

shall become a final decision in accordance with N.J.S.A. 52:14B-10.

would require the tribunal to entertain an adverse inference that the disappearance of the resume fromDr. Warwas personnel file warrants the inference that it contained the disclosure. Instead, the tribunalfinds her testimony sufficient.

8


9/9


Within thirteen days from the date on which this recommended decision was

mailed to the parties, any party may file written exceptions with the DIRECTOR, MERIT

SYSTEM PRACTICES AND LABOR RELATIONS, UNIT H, DEPARTMENT OF

PERSONNEL, 44 South Clinton Avenue, PO Box 312, Trenton, New Jersey 08625-

0312, marked "Attention: Exceptions." A copy of any exceptions must be sent to the

judge and to the other parties.

DATE JAMES A. GERAGHTY, ALJ

Date Received at Agency:

Mailed to Parties:

DATE OFFICE OF ADMINISTRATIVE LAW

pb/tbj

9

warwas v. city of plainfield

Documents