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Reporter 11-1.PMD ERIT YSTEM EPORTER VOLUME ? NUMBER 1 MS RVolume 11, Number 1 - Fall 2004 A digest of notable Merit System decisions Court Overturns Absolute IN THIS ISSUE Volunteer Firefighter Preference IMO Richard Dreyer, II, and WRITTEN RECORD APPEALS & James Hammond ……................................................. page 25 HEARING MATTERS OF PERSONNEL INTEREST Active Military Service Warrants List Revival IMO Giocchino Panico …………………………....…......page 2 Major Rule Changes………….......................... page 14 Board’s Statutory Authority to Increase Disci- plinary Penalty Properly Exercised IMO Craig Davis...........................................……....... page 3 TO OUR READERS: When we launched the premier issue of the Appointment of Veteran Mandated Where Top- Merit System Reporter in 1988, we told our readers ranked Non-veteran Not Interested that this publication “was developed in response to IMO Thomas D’Angelo ..………………………..........…page 8 numerous requests from attorneys, union leaders, pub- lic employers and other interested parties for a source Good Cause Not Shown to Extend Certification of information on decisions concerning merit system Disposition Date law and rules.” We went on to express our hope that IMO Police Officer (S9999B), readers “will find this publication informative and City of South Amboy ................................................. page 11 useful.” Through the years, we have received signifi- cant positive feedback from our readers. We have heard from many of you that the Merit System Re- porter is both informative and useful. Indeed, the only FROM THE COURT criticism we received was that the publication did not appear often enough, or did not include enough deci- Violations of Last Chance Agreement Sufficient sions. Basis for Removal Now, with the development of the Internet and IMO Horace Watson …………………………………….page 16 the enhancement of the Department of Personnel’s web site, we have the means to provide all interested par- ties—not just those on our mailing list—with an abun- Supreme Court Rescinds Appointment Based on dant source of decisions on merit system law and rules. Security Breach of Make-up Examinations Beginning with January 2004, notable decisions by IMO Police Sergeant (PM3776V), the Merit System Board and the Commissioner of Per- City of Paterson .…..……............................................ page 17 sonnel are being placed on our web site at www.state.nj.us/personnel. In the months and years Non-disclosure of Arrest Record Grounds for ahead, we will add to this resource, without the limi- Removal tations of printing, paper and mailing. We also plan to index these decisions, so that this portion of the IMO Anthony Dillard ……………………………....…. page 20 web site will become a valuable research tool. With this new resource, it will no longer be Court Agrees with Board’s Interpretation of 45- necessary to publish the Merit System Reporter. There- day Rule fore, with mixed feelings, I am announcing to our read- IMO Joseph McCormick ……………………………...... page 22 ers that this is the final issue of the Merit System Reporter. Henry Maurer Editor-in-Chief www.state.nj.us/personnel 11:1 MSR 2 WRITTEN RECORD APPEALS AND HEARING MATTERS It is noted that the appointing authority was notified of this matter and has filed no Active Military Service Warrants objection. List Revival In the Matter of Giocchino Panico, CONCLUSION Police Officer (S9999B), City of Paterson (Merit System Board, decided September 3, 2003) In the instant matter, appellant asserts that because he was called to active duty and unable to complete the appointment process, he Giocchino Panico requests that the should not be punished for his decision to “honor eligible list for Police Officer (S9999B), City of and defend my country by entering the United Paterson, be revived so that his name may be States Marine Corps.” Lieutenant Mott certified to the appointing authority when he is indicates that “[a]s a former United States released from active military duty. Marine I know what it is to serve your Country. The subject eligible list was promulgated At the very least in this time of war this Country on April 20, 2001 and expired on June 19, 2002. can attempt to assist these men and women of Appellant’s name appeared as the 26th ranked the armed services in any legal way possible.” non-veteran on the October 16, 2001 Under the circumstances presented, certification of the subject eligible list appellant should be given an opportunity to be (Certification No. OL012085). Although considered for appointment upon his return appellant had an interview with the subject from active military duty. However, if jurisdiction, he was unable to complete appointed, appellant is not entitled to a preemployment processing prior to being retroactive date of appointment. N.J.A.C. 4A:4- activated into the United States Marine Corps 4.6(a) provides that interested eligibles on Reserves. As such, the appointing authority military leave shall continue to be certified and indicated that appellant was to be retained as the appointing authority may consider such “Interested, future certifications only” when it eligibles immediately available for appointment returned the certification for disposition on June even though reporting for work may be delayed. 5, 2002. Therefore, appellant did not possess a vested On appeal, appellant asserts that when property interest in employment and his he contacted the Paterson Police Department appointment is not mandated. Further, the only to inform them of his active status, “everyone interest that results from placement on an made it seem that it was not a big deal, that I eligible list is that the candidate will be would still be on the list, and that I would most considered for an applicable position so long as likely be in the next academy upon my return. the eligible list remains in force. See Nunan v. Unfortunately, this is not what happened. I was Department of Personnel, 244 N.J. Super. 494 told that my scores were to be thrown out and (App. Div. 1990). See also In the Matter of Emilio that I would have to start the entire process over Nazario, Sheriff’s Officer (S9999B), Mercer and retake the exam.” In support of his appeal, County (Merit System Board, decided January appellant has submitted additional 15, 2003) (The Board found that although the documentation, including a copy of the orders appointing authority had not sufficiently dated December 12, 2001, calling him to active supported its request to remove a veteran from duty status and correspondence on his behalf an eligible list, the veteran was not entitled to from Police Lieutenant William Mott, Paterson a mandated appointment pursuant to N.J.A.C. Police Department. Additionally, appellant 4A:4-4.6(a); however, the Board ordered that submits a copy of his new orders for active duty once available, he was to be certified for future from March 2003 to March 2004. employment opportunities). In addition, 11:1 MSR 3 N.J.A.C. 4A:5-2.1(b) provides that veteran’s Board’s Statutory Authority to preference is effective for all examinations in Increase Disciplinary Penalty which the closing date for applications falls on Properly Exercised or after the determination of veteran’s In the Matter of Craig Davis, Department preference eligibility. A review of the record of Corrections indicates that the application filing deadline for (Merit System Board, decided March 26, the subject exam was February 25, 2000 and 2003) appellant established veteran’s preference on September 27, 2002. As such, appellant cannot receive veteran’s status for the subject exam. However, he will be eligible to claim veteran’s Craig Davis, a Senior Correction Officer preference for all future examinations. at South Woods State Prison, Department of Corrections, represented by Colin M. Lynch, ORDER Esq., petitions the Merit System Board for reconsideration of the final decision, rendered Therefore, it is ordered that this request on December 4, 2002, which affirmed the ALJ’s be granted and once appellant notifies Human recommendation to increase his disciplinary Resource Information Services (HRIS) and the penalty from a 15-day suspension to a six-month appointing authority of his availability, the list suspension. for Police Officer (S9999B), City of Paterson be The record reflects that the petitioner was revived at that time, in order that appellant may served with a Final Notice of Disciplinary be considered for appointment at the time of the Action, dated August 17, 2001, charging him next certification, for prospective employment with inappropriate physical contact or opportunities only. mistreatment of an inmate and suspending him for 15 days. Specifically, the appointing authority asserted that, on June 6, 2001, the petitioner slapped an inmate, JB, on the buttocks while conducting a routine strip search. The petitioner filed an appeal of this disciplinary action with the Board, and the matter was transmitted to the Office of Administrative Law (OAL) for a hearing as a contested case. In his initial decision, Administrative Law Judge (ALJ) Israel D. Dubin recounted, in detail, the testimony presented at the hearing at the OAL. Specifically, the ALJ was confronted with two distinct accounts of the events of June 6, 2001. According to JB, he and 19 other inmates were assigned to complete a highway clean-up detail on June 6, 2001. Upon returning to the facility after completion of the detail, JB and the other inmates waited on line to be strip searched before returning to their cells. When he entered a partitioned area where the petitioner was conducting the searches, JB testified that the petitioner slapped him on the buttocks. JB immediately dressed and reported 11:1 MSR 4 to Correction Lieutenant Richard Battle’s office of the petitioner’s testimony and his demeanor to complete a report on the incident. Another during his testimony. Thus, the ALJ found that inmate, MB, testified in support of JB’s account. the petitioner engaged in the conduct charged, MB testified that he was in the cubicle next to and that his conduct warranted major discipline.
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