In the Matter of Darian Vitello Docket No (Merit System Board, decided February 28, 2007)

Transcription

1 In the Matter of Darian Vitello Docket No (Merit System Board, decided February 28, 2007) The Superior Court, Law Division, has transmitted, by the attached order, the case of Vitello v. Borough of Belmar to the Merit System Board to address Darian Vitello s entitlement to a permanent appointment as a Police Officer with the Borough of Belmar. The following facts are not disputed. Darian Vitello served as a Patrolman with the North Hanover Township 1 Police Department from December 7, 2001 through March 21, 2003, at which time he was laid off for reasons of economy or efficiency. By letter dated March 28, 2003, Vitello was advised by the Department of Personnel (DOP) that his name had been placed on the Statewide Law Enforcement Officer Eligible Listing in accordance with N.J.S.A. 40A: ( Rice Bill ). Vitello was appointed by the Borough of Belmar (Borough) as a Police Officer, effective May 14, On May 3, 2006, Vitello, represented by Charles E. Schlager, Jr., Esq., filed a complaint in the Superior Court, Law Division, seeking an order that he was permanently appointed as a Police Officer with the Borough, as well as attorney s fees, court costs, and any other relief deemed equitable. Vitello alleged that he was hired provisionally by the Borough in April 2003, pending the retirement of another employee, Skip Allen, who retired in August Despite this retirement, Vitello claimed that he remained provisional in his title, and two eligibles on the Police Officer (S9999D) eligible list were permanently appointed at this time. When he questioned these personnel transactions and his uncertain status, he was informed that the Borough s ability to offer him a permanent position was contingent on the unsettled employment status of another officer, Kara Ketcham. Vitello asserted that, under threat of removal, he signed a DOP form on July 8, 2004, reflecting that he was serving an interim appointment. He also contended that he was inappropriately advised that, if he did not file for and pass the Law Enforcement Examination in 2006, he would be terminated. 3 In his complaint, Vitello argued that he relied on the Borough s representations that he would be made permanent upon Allen s retirement to his detriment. Specifically, he ceased seeking employment in other jurisdictions, and he initially relocated his residence to the Borough. Since the time of his initial appointment, however, he claimed that he 1 North Hanover Township has not adopted the provisions of Title 11A of the New Jersey Statutes. 2 According to DOP records, Police Sergeant Frederic Allen retired, effective August 1, DOP records reflect that Vitello did, indeed, take and pass the Police Officer (S9999H) examination. The resultant eligible list promulgated on December 24, 2006 and expires on December 23, 2008.

2 had again moved out of the Borough. 4 The Superior Court, Law Division granted the Borough s motion to transfer this matter to the DOP for consideration. Upon receipt of this matter, the parties were afforded the opportunity to supplement the record. In its submission to the Board, the Borough, represented by Arthur R. Thibault, Jr., Esq., contends that Vitello has been serving an interim appointment since the commencement of his employment. The Borough indicates that, in March 2003, a permanent Police Officer, Ketcham, commenced a leave of absence. It notes that it was able to consider him for an interim appointment to this position by virtue of his placement on the Rice Bill list, and, by so doing, it was able to appoint a fully trained officer who was able to immediately perform the full duties of a Police Officer. In contrast, if it were to fill this position on an interim basis from the open competitive eligible list in effect at the time, the appointee would have had to attend the requisite training before commencing active duty. The Borough underscores that it is a small community along the New Jersey shore, which employs approximately 20 Police Officers, and its population grows exponentially during the summer months due to the influx of tourists. Thus, the immediate filling of Ketcham s position, just as the summer season was commencing, was necessary to ensure adequate police coverage. The Borough emphasizes that Vitello was aware, at all times, of the nature of his appointment. In support of this assertion, the Borough submits an offer of employment, dated March 27, 2003, in which he is advised that this appointment is temporary in nature due to current situations within the Department. In addition, the Borough Council s Resolution Number , which effectuated Vitello s appointment, refers to his position as an Interim Police Officer, and the oath of office taken by Vitello indicated that he would justly perform the duties of an Interim Police Officer. The Borough also submits two DOP forms, signed by Vitello. The first, which was signed by Vitello on May 21, 2003, reflects a temporary appointment 5 of six months or less, and the second, signed on July 8, 2004, indicates an interim appointment [r]eplacing Kara Ketcham. Additionally, the Borough submits a June 14, 2004 letter from Vitello s attorney, in which he acknowledges that, [a]t the time of hire, Officer Vitello was told he was being hired provisionally due to a situation involving another Belmar Officer, Kara Ketcham. Thus, the Borough initially suggests that Vitello s claim is untimely. The Borough argues that N.J.A.C. 4A:2-1.1 provides that appeals must be filed within 20 days after the appellant had notice or should reasonably have known of the decision, situation, or action being appealed. It contends that Vitello was clearly aware of the non-permanent nature of his appointment when he accepted the position in May 4 According to DOP records, Vitello reported that he resided in the Borough when he filed for the Police Officer (S9999H) examination, which had a closing date in March The Borough indicates that this form contained an error, in that his appointment at this time should have also been recorded as an interim appointment.

3 2003 and of the continuing interim appointment when he signed a DOP form to that effect in July The Borough asserts that his filing of the instant claim in May 2006 was, thus, well beyond the 20-day time frame. As to the merits, the Borough notes that Vitello was initially appointed to fill Ketcham s position while she was out on a leave of absence. Since that time, Ketcham has been removed from employment in September 2003 and filed a timely appeal with the Merit System Board, which is currently pending at the Office of Administrative Law. Thus, the Borough maintains that the interim nature of Vitello s appointment was, and remains, appropriate, pursuant to N.J.A.C. 4A:4-1.6(b). In addition, while the Borough concedes that it made two permanent Police Officer appointments in August 2003 when faced with the retirements of two employees, it emphasizes that there is no requirement that it permanently appoint an individual serving an interim appointment when a permanent position becomes available. In response, Vitello reiterates the assertions contained in his original complaint, including his claim that he is serving provisionally in the title of Police Officer. In addition, he claims that there is strong evidence they [the Borough] did inform Vitello that the[y] were indeed hiring him from [the Rice Bill list]. He also alleges that the Borough changed his appointment designation from temporary to interim without notice. Moreover, Vitello asserts that he will be irreparably harmed if he is not awarded retroactive permanent status in the instant matter, since he is approaching the maximum hiring age for municipal Police Officers, 35 years of age. 6 Vitello also contends that the Borough violated N.J.A.C. 4A:4-1.6(k), which provides that an appointing authority is required to advise interim appointees of their rights under an interim appointment. As to the timeliness of his challenge, Vitello alleges that he originally contacted DOP in the summer of 2004 regarding his employment status. 7 It should be noted that, at the time of his appointment in May 2003, Vitello also appeared on the eligible list for Police Officer (S9999D), and he appeared in the 13 th position on a June 2, 2003 certification of that list. Because the eligibles in the second and third positions were appointed, Vitello was not reachable for appointment on the certification. CONCLUSION Initially, the Borough contends that the instant matter should be dismissed as untimely, asserting that Vitello has been aware that his appointment was not permanent since 2003, and he filed his complaint in Superior Court in May It is noted that DOP records indicate that Vitello was 31 years old as of the March 2006 closing date for the Police Officer (S9999H) examination. 7 Staff of the Division of Human Resource Management confirms receipt of an inquiry from Vitello.

4 However, there is evidence in the record that Vitello had been in contact with representatives of the DOP prior to the filing of his complaint and raised some of the issues raised herein. It appears that he was seeking resolution to his employment status without the necessity of filing an adversarial action. Therefore, given his continuous contact with the DOP prior to the filing of his instant complaint, it is appropriate to address the merits of his complaint. N.J.S.A. 40A: provides: (a) The provisions of any other law to the contrary notwithstanding, the appointing authority of a county or municipality which, pursuant to N.J.S.A. 40A:14-106, in the case of a county, or N.J.S.A. 40A:14-118, in the case of a municipality, has established and maintains a police force may appoint as a member or officer of the county or municipal police department any person who: (1) was serving as a law enforcement officer in good standing in any State, county or municipal law enforcement department or agency; and (2) satisfactorily completed a working test period in a State law enforcement title or in a law enforcement title in a county or municipality which has adopted Title 11A, Civil Service, of the New Jersey Statutes or satisfactorily completed a comparable, documented probationary period in a law enforcement title in a county or municipality which has not adopted Title 11A, Civil Service; and (3) was, for reasons of economy, terminated as a law enforcement officer within 60 months prior to the appointment. b. A county or municipality may employ such a person notwithstanding that: (1) Title 11A, Civil Service, of the New Jersey Statutes is operative in that county or municipality; (2) the county or municipality has available to it an eligible or regular reemployment list of persons eligible for such appointments; and (3) the appointed person is not on any eligible list. A county or municipality which has adopted Title 11A, Civil Service, may not employ such a person if a special reemployment list is in existence for the law enforcement title to be filled.

5 See also, N.J.A.C. 4A:4-3.9 and N.J.A.C. 4A: N.J.A.C. 4A:4-1.6 provides: (b) When an appointing authority makes an appointment to a specific position in State service or a specific title in local service, an interim appointment shall be made where the position/title is held by a permanent employee who: 1. Is on a leave of absence; 2. Is on indefinite suspension; 3. Has been removed or demoted for disciplinary reasons and is awaiting final administrative action by the Merit System Board on appeal; or 4. Has accepted an interim appointment. In the instant matter, there is no dispute that Vitello was appointed, effective May 14, 2003, from a Rice Bill list established in accordance with N.J.S.A. 40A: As noted above, there is also ample evidence in the record that Vitello was well aware that he was not being hired as a permanent employee. Contrary to Vitello s claims, there is not a scintilla of evidence that the Borough ever represented that his appointment would be made permanent upon the impending retirement of Allen. On the other hand, there is evidence that he was, at all relevant times, filling the position previously occupied by Ketcham, who was initially on a leave of absence, was removed from employment, and presently has an appeal of her removal pending at the Office of Administrative Law. However, Vitello s awareness of the non-permanent nature of his appointment is not dispositive. Rather, the key issue in the matter at hand is whether an appointing authority can utilize a Rice Bill list in the manner the appointing authority did here. It is evident from a review of the statutory and regulatory provisions governing Rice Bill lists that this program was not intended to be utilized to make anything other than permanent appointments. Initially, an interim appointment is inconsistent with the legislative goal of the Rice Bill. The dual purpose of the Rice Bill is to provide additional opportunities for continued employment for law enforcement officers and to provide appointing authorities with additional candidates for employment who do not require costly and timeconsuming training. In this regard, N.J.A.C. 4A:4-3.10(e)2 provides that employees appointed from a Rice Bill list [s]hall begin to accrue seniority as of the effective date of the new appointment. Thus, the use of a Rice Bill list to make an interim

6 appointment would be inconsistent with other regulatory provisions that preclude interim appointees from accruing seniority in their interim titles. See e.g., N.J.A.C. 4A:4-1.6(i). Similarly, N.J.A.C. 4A:4-3.10(d)4 provides that Rice Bill appointees [s]hall not be subject to a working test period. If interim appointments were permissible under the program, this provision would be unnecessary, since interim appointees do not serve working test periods. See N.J.A.C. 4A:4-5.2(a). Thus, the Board concludes that appointments of individuals from Rice Bill lists must be permanent in nature. In fashioning a remedy in the instant matter, it is important to recognize that this is an issue of first impression for the Board. Moreover, the Board s conclusion constitutes a departure from the current practice of the DOP. 8 It also cannot be ignored that the Borough reasonably believed, based on its good faith interpretation of the law and past DOP practice, that it was properly placing Vitello in an interim position. The Borough s reasonable expectations must be balanced against those of Vitello. As discussed at length above, Vitello was aware, at all relevant times, of the non-permanent nature of his appointment, and that his continued employment was contingent upon the finalization of Ketcham s separation from employment. Taking all of these factors into consideration, it is appropriate to prospectively apply the Board s determination in this matter. Although Vitello will, thus, not be immediately entitled to permanent status with a retroactive permanent appointment date, the Borough shall permanently appoint Vitello to his position in the event that Ketcham s separation from employment is upheld. Further, if another permanent position becomes vacant during the pendency of Ketcham s appeal, the Borough must permanently appoint Vitello to fill the position. Equity would also require that, upon his permanent appointment, Vitello s date of permanent appointment be recorded as May 14, 2003, for salary step placement and seniority-based purposes only. Finally, in the event that Ketcham is successful in her appeal and reinstated to employment before Vitello is permanently appointed, the Board orders that the Borough permanently appoint him to the next available permanent position and record any break in service as a leave of absence without pay. ORDER Therefore, it is ordered that the Darian Vitello s request be granted in part, and he be permanently appointed to the next available permanent position, as set forth above. It is further ordered that, upon his appointment, Vitello receive a retroactive date of permanent appointment of May 14, 2003, for salary step placement and seniority-based purposes only. 8 In addition to approving Vitello s initial temporary appointment when it was reported, there has been at least one other instance in which the DOP approved an interim appointment from a Rice Bill list.

7 This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.