In the Matter of Barry T. Hunter DOP Docket No (Merit System Board, decided February 9, 2005)

Transcription

1 In the Matter of Barry T. Hunter DOP Docket No (Merit System Board, decided February 9, 2005) Barry T. Hunter, a Police Officer with the City of Plainfield (Plainfield), petitions the Merit System Board for an Intergovernmental Transfer to the title of Police Officer with the City of Elizabeth (Elizabeth). By way of background, the Intergovernmental Transfer Pilot Program was established, effective September 1, 1999, and expired on August 31, This program was established to permit the transfer of State, county and municipal employees between jurisdictions without loss of permanent status, subject to the approval of the transferring agency, the receiving agency, the transferring employee and the Department of Personnel (DOP). N.J.A.C. 4A:4-7.1A, the rule governing the Intergovernmental Transfer Program, became effective on November 19, In the intervening time period, i.e., from September 1, 2000 through November 18, 2001, requests for Intergovernmental Transfers were reviewed on a case-by-case basis, subject to the approval of the DOP and the utilization of rule relaxation procedures. The petitioner asserts that, upon the implementation of the Intergovernmental Transfer Pilot Program in September 1999, he interviewed for a position with the North Brunswick Police Department, and he was advised that he ranked third among the candidates interviewed. He claims that the North Brunswick Police Department would have been prepared to offer him a position in February However, during the intervening time period, Michael Lattimore, the Public Safety Director with Plainfield, determined in December 1999 that he would no longer consent to the participation of any Police Officers with Plainfield in the Intergovernmental Transfer Program. This determination was made because Lattimore perceived that many Police Officers were transferring out of the jurisdiction, but no Police Officers had requested Intergovernmental Transfers into Plainfield. Subsequently, in 2003, the petitioner asserts that he was contacted by David Rose, Esq., an attorney for the National Association for the Advancement of Colored People (NAACP), who was seeking minority Police Officers to interview with certain jurisdictions in New Jersey who were seeking to increase the diversity of their Police Departments. As a result, the petitioner interviewed with the Police Departments in the Boroughs of Fort Lee and Sayreville. However, in response to his request that he be permitted to transfer to one of these jurisdictions, Lattimore reiterated his reluctance to participate in the Intergovernmental Transfer Program by letter dated July 7, Subsequently, on October 15, 2003, Plainfield submitted a layoff plan to the Department of Personnel (DOP) for approval, which included the possible layoff of several members of the Police Department, effective January 16, In order to lessen the potential impact of these layoffs, Police Officers with Plainfield were permitted to explore the possibilities of Intergovernmental Transfers to other jurisdictions. The petitioner contacted the Boroughs of Fort Lee and Sayreville regarding an Intergovernmental Transfer but received no response from either jurisdiction. In addition, the petitioner inquired with Elizabeth s Police Department, but he was advised that there were no vacancies at that time. 1 1 It is noted that the petitioner submitted a letter of resignation to the City of Plainfield on February 16, 2004 in order to accept a position as a Sheriff s Officer with Mercer County. His resignation was to be effective February 27,

2 In March 2004, the petitioner discussed the possibility of an Intergovernmental Transfer with the Township of North Brunswick Police Department. However, he was again advised by Edward Santiago, Police Chief with Plainfield, that he did not wish to approve the petitioner s Intergovernmental Transfer, due to manpower shortage. The petitioner claims that he then sought the intervention of the Mayor of Plainfield, Albert McWilliams. Following a meeting with Mayor McWilliams on March 25, 2004, the petitioner indicates that Mayor McWilliams expressed his willingness to approve the Intergovernmental Transfer. Another candidate was eventually selected for the vacant position with the Township of North Brunswick, but the petitioner alleges that he was not selected because Santiago advised the Township of North Brunswick that he did not endorse the petitioner s Intergovernmental Transfer. In April 2004, the petitioner alleges that Santiago was considering approving the Intergovernmental Transfer of a Caucasian Police Officer, Michael Auricchio, based on Auricchio s involvement in a shooting incident while on duty. However, the petitioner also submits a letter dated April 29, 2004 from the Policemen s Benevolent Association (PBA) indicating that Lattimore would not agree with a lateral transfer, due to concerns with staffing levels. Commencing in June 2004, the petitioner attempted to obtain a position with Elizabeth through the Intergovernmental Transfer Program. The petitioner was advised in a letter dated August 5, 2004 from City Administrator, Norton Bonaparte, Jr., that Plainfield would not consent to his Intergovernmental Transfer. Santiago also reiterated his reluctance to consent to an Intergovernmental Transfer, due to concerns with staffing levels. The petitioner claims that, contrary to Plainfield s contention that no Police Officers ever sought an Intergovernmental Transfer into the jurisdiction, four Police Officers had been hired in Plainfield through the Intergovernmental Transfer Program since June Specifically, the petitioner submits letters dated May 11, 2004 to Nuno Carvalho, Khisha Bethea, Shayne Lugo, and Christopher Sylvester, notifying them that Plainfield was filling three vacant Police Officer positions and suggesting that they could be considered for one of the positions if placed on a reemployment list or through an Intergovernmental Transfer. The petitioner also asserts that, in August and September 2004, he had the opportunity to accept a position with Elizabeth s Police Department, but Plainfield would not approve. During this time period, the petitioner alleges that Santiago consented to the Intergovernmental Transfer of a Caucasian Police Officer, Gregory Lordi, to the Hillside Township Police Department. The petitioner indicates that Lordi s father and brother had served in the Hillside Township Police Department prior to their deaths, and Santiago wished to allow Lordi to also serve in that jurisdiction. However, the petitioner notes that Santiago subsequently rescinded his consent to Lordi s Intergovernmental Transfer. In response, Plainfield, represented by Frank G. Capece, Esq., asserts that, in late 2003, it granted permission to all Police Officers to explore Intergovernmental Transfer possibilities as an alternative to impending layoffs. As of January 16, 2004, the effective date of the layoffs, the However, on February 23, 2004, the petitioner submitted, and the appointing authority accepted, a letter rescinding his resignation.

3 petitioner had not succeeded in effecting an Intergovernmental Transfer. Nevertheless, Plainfield notes that it granted the petitioner an extended transfer period. Plainfield emphasizes that the petitioner was the only Police Officer granted such an extension. When the petitioner still had not succeeded in obtaining a position with another jurisdiction, Plainfield revoked it authorization for the petitioner s Intergovernmental Transfer on August 5, Plainfield also questions the petitioner s motives in seeking an Intergovernmental Transfer, and it submits a letter from Rose which indicates that [t]he Elizabeth [police] force is known to pay more, and [the petitioner] view[s] that as a goal. With regard to Auricchio and Lordi, Plainfield maintains that neither of these Police Officers has been granted an Intergovernmental Transfer 2, and it submits an August 5, 2004 letter to Auricchio, confirming that his Intergovernmental Transfer was not approved on account of concerns with staffing levels. Finally, Plainfield maintains that it is justified in uniformly denying Intergovernmental Transfers requested by Police Officers. In this regard, it notes that: The City suffers a negative impact both from a financial and a public safety standpoint when a veteran officer leaves. The City loses the large investment of money to train that officer as well as the experience that the officer has accumulated. Plainfield s experience has further been that no police officers have sought to transfer into the City. The City of Elizabeth indicates that it conducted an interview with the petitioner in September 2000, and it contacted Plainfield to ascertain whether an Intergovernmental Transfer of the petitioner would be possible. By letter dated October 10, 2000, Elizabeth informed the petitioner that it was unable to consider him for employment, since Plainfield was unwilling to consent to the Intergovernmental Transfer. Elizabeth also notes that, while the petitioner was asked to complete another application for employment in July 2004, a background investigation was never initiated. Thus, Elizabeth was never in a position to consider the petitioner for employment or offer him a position. While Elizabeth notes that the petitioner also produced an Intergovernmental Transfer Agreement, dated August 24, 2004 and signed by Mayor McWilliams, it returned this document to Plainfield, since it was not signed by the appointing authority for Plainfield. 3 Finally, Elizabeth notes that it has a residency ordinance requiring all public safety personnel to be residents upon appointment. It is noted that the petitioner resides in Piscataway, New Jersey. In response, the petitioner contends that Plainfield did provide Plainfield Police Officers an opportunity to seek an Intergovernmental Transfer to another jurisdiction. He relies on two letters from the Policemen s Benevolent Association discussing possible Intergovernmental Transfers for Auricchio and Lordi. The April 29, 2004 correspondence regarding Auricchio indicates that Lattimore would not agree with a lateral transfer, and the September 28, 2004 letter regarding Lordi demonstrates that the City of Plainfield and the Township of Hillside are involved in communications regarding [Lordi s] desire to transfer. The September 28, 2004 letter also contains the union s expression of support of Lordi s Intergovernmental Transfer. 2 Department of Personnel records confirm that both referenced Police Officers remain employed by Plainfield. 3 Department of Personnel records indicate that Karen Dabney, Personnel Director, is the designated appointing authority for Plainfield.

4 With regard to the employees that the petitioner contends were granted Intergovernmental Transfers into Plainfield, Department of Personnel records reflect the following. Nuno A. Carvalho was permanently appointed as a Police Officer with Plainfield in January 2003, and he resigned in good standing on December 7, 2003 in order to accept a position as a Sheriff s Officer with Union County. This action was taken in order to avoid an impending layoff. In response to Plainfield s May 2004 correspondence, Carvalho attempted to obtain an Intergovernmental Transfer from Union County to Plainfield. However, Carvalho was actually permanently appointed from the Police Officer (S9999D), City of Plainfield, eligible list, effective June 14, 2004, since he had never completed his working test periods as a Police Officer with Plainfield or as a Sheriff s Officer with Union County and, thus, could not attain reemployment through a regular reemployment list or an Intergovernmental Transfer. See In the Matter of Nuno Carvalho (MSB, decided September 8, 2004). Shayne Lugo was permanently appointed as a Police Officer with Plainfield in July 2001, and he resigned in good standing on December 7, Lugo was appointed from a regular reemployment list for the title of Police Officer, effective August 17, Khisha Bethea was permanently appointed as a Police Officer with Plainfield in July 2001 and transferred to the Department of Human Services via the Intergovernmental Transfer Program on February 7, On June 8, 2004, Bethea was permitted to return to Plainfield through an Intergovernmental Transfer. 4 It is noted that, by letter dated November 5, 2004, Rose contacted Henry V. Smith, Director of the Office of Intergovernmental Services, on behalf of the appellant to request Smith s intervention in the appellant s attempt to obtain an Intergovernmental Transfer to Elizabeth. On November 22, 2004, Rose was advised that an Intergovernmental Transfer required the consent of all affected parties, and the Office of Intergovernmental Services was unable to intervene if an appointing authority chose not to approve a transfer request. CONCLUSION N.J.A.C. 4A:4-7.1A(a) provides that an intergovernmental transfer is the movement of a permanent employee between governmental jurisdictions operating under Title 11A, New Jersey Statutes, or the appointment of an employee, by a governmental jurisdiction operating under Title 11A, within 90 days of the effective date of a layoff for reasons of economy or efficiency in which the employee is separated from service from another governmental jurisdiction operating under Title 11A. N.J.A.C. 4A:4-7.1A(b) provides that an intergovernmental transfer shall require the consent in writing of the sending jurisdiction, if any, the receiving jurisdiction and the affected employee, and the approval of the Department of Personnel. N.J.A.C. 4A:4-7.1A(b)1 provides that the receiving jurisdiction may waive its residency ordinance or resolution in consenting to receive a transferring employee. It is noted that, since the inception of the Intergovernmental Transfer Pilot Program in September 1999, and continuing through the present, an Intergovernmental Transfer of an employee required the consent and approval of the sending agency, the receiving agency, the employee, and the Department of Personnel. In other words, participation in the Intergovernmental Transfer program is not and was at no time an entitlement. Rather, 4 While not expressed in the record, it appears that Lugo and Bethea voluntarily left employment with Plainfield in order to avoid the possibility of a layoff in 2004.

5 participation is at the discretion of the parties involved in the transfer. See In the Matter of Kindred Brunson (MSB, decided January 12, 2005). In the instant matter, the petitioner provides a detailed history regarding his attempts to obtain an Intergovernmental Transfer, dating back to 1999, and he contends that Plainfield s refusal to consent to the Intergovernmental Transfer constituted an abuse of the discretion granted to the sending agency. Essentially, the petitioner alleges that Plainfield s refusal to allow his Intergovernmental Transfer was discriminatory. However, the record reflects that, commencing in December 1999, Plainfield consistently refused requests for Intergovernmental Transfers of Police Officers, due to the negative impact on the Police Department. Plainfield indicates that, since it received no new Police Officers through the Intergovernmental Transfer Program, it was losing experienced and trained Police Officers to other jurisdictions but gaining no similarly experienced Police Officers. This is certainly a legitimate reason for issuing a blanket denial of all requests for Intergovernmental Transfers. Absent any evidence that Plainfield made exceptions to its policy to deny Intergovernmental Transfer requests, the Board will not disturb its decision not to participate in the program. In this regard, the petitioner has not alleged that any Police Officers with Plainfield were permitted to effectuate an Intergovernmental Transfer between December 1999 and October Thus, there is not a scintilla of evidence that Plainfield abused the discretion afforded to it under the Intergovernmental Transfer Pilot Program during this time period. Moreover, in October 2003, the record reflects that all Police Officers in Plainfield, including the petitioner, were granted permission to seek Intergovernmental Transfers to other jurisdictions in order to lessen the impact of impending layoffs. While Plainfield s general consent to Intergovernmental Transfers expired on the proposed effective date of the layoff, January 16, 2004, the petitioner was granted an open-ended extension of Plainfield s approval to effectuate an Intergovernmental Transfer. The petitioner does not dispute that he was the only employee granted such a courtesy. Plainfield revoked its authorization for the petitioner s Intergovernmental Transfer in August Thus, the record reflects that the petitioner had close to one year to obtain his desired Intergovernmental Transfer, but he failed to obtain employment with another jurisdiction during this time frame. It cannot be ignored that the petitioner was the only Police Officer with Plainfield s approval to seek an Intergovernmental Transfer for much of Additionally, while the petitioner notes that Plainfield considered Intergovernmental Transfers for Auricchio and Lordi, it must be emphasized that these transactions were never approved by Plainfield. Although certain officials may have expressed their willingness to permit the Intergovernmental Transfers of Auricchio and Lordi, the fact remains that these employees continued their employment with Plainfield, and there is simply no evidence that Plainfield ever issued final approval for their Intergovernmental Transfers. In fact, Plainfield submits letters addressed to the petitioner and Auricchio, both dated August 5, 2004, confirming that both officers requests for Intergovernmental Transfers had been denied. Concerning the petitioner s present attempts to obtain an Intergovernmental Transfer to Elizabeth, it appears from the record that Plainfield s policy regarding Intergovernmental Transfers is not the sole obstacle. In this regard, Elizabeth indicates that, while it accepted the petitioner s application for employment, it had not even commenced its background investigation. Moreover, Elizabeth notes that the petitioner has not been extended an offer of

6 employment, and it has not indicated its willingness to consent to the petitioner s transfer into its jurisdiction. Elizabeth also indicates that it has a residency ordinance, which it has not yet agreed to waive, which would preclude the petitioner s employment as a Police Officer in Elizabeth, given his current residency in Piscataway. It would be premature to require the petitioner s Intergovernmental Transfer at this time because, presently, only one of the four parties required to approve such a transfer has done so. At this juncture, the sending agency, the receiving agency and the Department of Personnel have not issued the requisite approval of this proposed transaction. Where, as here, there is not a scintilla of evidence that any of these parties has withheld its approval for improper reasons, the Board declines to substitute its judgment for that of the parties. ORDER Therefore, it is ordered that this petition be denied. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.