In the Matter of Michael Vidal, Kean University DOP Docket No (Merit System Board, decided July 13, 2005)

Transcription

1 In the Matter of Michael Vidal, Kean University DOP Docket No (Merit System Board, decided July 13, 2005) Michael Vidal, a former Campus Police Officer with Kean University, represented by Christopher Vaz, Esq., requests a hearing on his separation from employment at the end of his working test period (WTP), effective June 28, 2004 and his removal on charges also effective June 28, By way of background, the petitioner was appointed as a Campus Police Officer on June 28, 2003 and began a one-year WTP pursuant to N.J.A.C. 4A: On June 17, 2004, the appointing authority sent the petitioner a letter enclosing copies of his completed Progress Reports 1 and indicating that he had not satisfactorily completed his WTP in the title of Campus Police Officer. The letter advised the petitioner that as a result thereof his employment with the appointing authority would be terminated, effective June 28, Regarding his removal on charges, the appointing authority served the petitioner with a Preliminary Notice of Disciplinary Action (PNDA) on March 16, 2004, charging him with two counts of insubordination, conduct unbecoming a public employee and neglect of duty. Based upon these charges, the petitioner was immediately suspended without pay effective March 17, A departmental hearing was held on April 1, However, the Hearing Officer did not issue his report on the hearing until January 25, The reason given for this gap in time was that as a result of the petitioner s legal challenge 3 to his termination from employment based on his WTP, the appointing authority held the disciplinary action in abeyance. A Final Notice of Disciplinary Action (FNDA) upholding all but one of the insubordination charges and removing the petitioner from employment effective June 28, 2004, was issued on February 17, On February 28, 2005, the petitioner appealed his removal to the Merit System Board (Board) along with his release at the end of his WTP. In support of his request for a hearing, the petitioner argues, with regard to the removal, that the appointing authority did not issue the FNDA until more than 1 It is noted that there were three Progress Reports enclosed with the appointing authority s letter of June 17, The first one covered the first six months of the petitioner s WTP from June 28 to December 28, 2003 and was marked Satisfactory. The second Progress Report covered the period from December 28, 2003 to March 28, 2004 and was marked Unsatisfactory. The third Progress Report covered the period from March 28 to June 28, 2004 and was also marked Unsatisfactory. 2 It is noted that the appellant did not file a request for interim relief of his immediate suspension pursuant to N.J.A.C. 4A:2-2.5(a)1, either after receiving the PNDA on March 16, 2004 or after his departmental hearing on April 1, The appellant filed an action in Superior Court challenging his release at the end of his WTP.

2 10 months after the departmental hearing in violation of N.J.A.C. 4A:2-2.6 which provides generally, that within 20 days of a hearing, an appointing authority shall make a decision on the charges and furnish the employee with an FNDA. The petitioner also argues that this is a statutory mandate pursuant to N.J.S.A. 11A:2-14. The petitioner contends that it was the appointing authority s unilateral decision to hold the disciplinary action in abeyance. Specifically, the petitioner contends that by separating him from employment at the end of his WTP, the appointing authority effectively abandoned the disciplinary action. Additionally, the petitioner maintains that once the appointing authority realized it had not properly followed the evaluation process contained in N.J.A.C. 4A:4-5.3(b) 4 regarding the WTP, that it issued the FNDA in order to ensure a second bite at the apple. In support of this contention, the petitioner notes that of the three Progress Reports, only one contains a signature above the caption Signature of Employee. The second two Progress Reports have no signature above this caption. Moreover, the petitioner submits a report from a forensic document/handwriting expert which maintains that the signature on the first Progress Report purporting to be the petitioner s signature is, in fact, not the petitioner s signature. Additionally, the petitioner submits a copy of the Stipulation of Dismissal of his Superior Court action relating to his release at the end of his WTP, dated March 17, It is noted that the Dismissal was without prejudice. Finally, the petitioner requests that the Board decline to process the appointing authority s untimely attempt to carry out major discipline 10 months after the departmental hearing. He also requests that the Board undertake an investigation of the appointing authority s practices as he asserts such investigation will bear out the appointing authority s intentional pattern of misconduct, fraud and deceit. In opposition to the petitioner s requests, the appointing authority, represented by JoAnn Fitzpatrick, Deputy Attorney General, argues that the investigation which the petitioner requests that the Board undertake is both premature and irrelevant to his appeal. The document that he alleges contains a forged signature is the petitioner s first six month probationary report, which was satisfactory. The appointing authority also alleges that the petitioner has not alleged any harm from this alleged act. The appointing authority maintains that it is the events that occurred in the second six month period of the WTP that are relevant to the petitioner s appeal. In this regard, the appointing authority sets forth that if the Board refers the appeal to the Office of Administrative Law, the petitioner can argue its relevance at that time. 4 N.J.A.C. 4A:4-5.3(b) provides that for entry level law enforcement titles, an appointing authority shall prepare a progress report on the employee at the end of six months and a final report at the conclusion of the WTP.

3 Additionally, the appointing authority acknowledges that while the FNDA was not timely issued, the petitioner had notice that he was being removed from his position when he was sent his last probationary report on July 10, 2004 and the form gave the petitioner notice of his right to appeal to the Department of Personnel (DOP). 5 The appointing authority argues that instead of appealing to the DOP, the petitioner initiated an appeal in the Law Division of the New Jersey Superior Court. Had the petitioner followed the proper procedure, his appeals would have been timely filed and the matters could have been resolved. Finally, the appointing authority maintains that the petitioner should not be permitted to now file an appeal in the proper forum after having filed an appeal in the wrong forum. In reply to the appointing authority s arguments, the petitioner contends that the issue of the forged signature on the first Progress Report is both timely and relevant. The petitioner maintains that a forged signature on the first report combined with the fact that there are no signatures on the second and third Reports is directly relevant as to whether the petitioner is permitted to pursue his appeal. The petitioner argues that the appointing authority cannot terminate an employee at the end of a WTP if the employee did not receive progress reports and was never advised of the nature of any alleged performance deficiencies. Additionally, the petitioner takes exception to the appointing authority s statement that he has not alleged any harm as a result of the forged signature. He claims that his termination from employment is the greatest harm that can befall a public employee. He submits that all the evidence points to a plan by the appointing authority to build a false record against him. The petitioner asserts that the fact that the Report containing the forgery indicates satisfactory performance does not mitigate the harm created by the forgery inasmuch as a copy of all the probationary reports were to have been supplied to the petitioner. However, he did not receive a copy of the first report while still employed. Moreover, the petitioner requests a copy of the probationary report that the appointing authority states was sent to him on July 10, 2004 and which purports to detail his appeal rights. The petitioner acknowledges the July 17, 2004 letter from the appointing authority with copies of three Progress Reports. However, those Reports only contain a single page and nowhere on those reports or in the transmittal letter does it indicate that the petitioner could appeal his WTP termination to the DOP. The second and third reports which were marked unsatisfactory also failed to specify how or why the petitioner s performance was considered unsatisfactory and failed to attach any supporting documentation. Finally, the petitioner argues that the appointing authority s serving a FNDA 10 months after a departmental hearing has nothing whatsoever to do with the its gross mishandling of the WTP separation from employment. The petitioner maintains that the appointing authority abandoned the disciplinary action in 2003 and elected to pursue the WTP matter. It was not 5 It is not clear from the record where this date comes from or where on the Progress Reports appeal rights are contained.

4 until the appointing authority realized that its WTP case was seriously flawed that it determined to resurrect the disciplinary action. CONCLUSION N.J.S.A. 11A:2-15 provides that any appeal from adverse actions specified in N.J.S.A. 11A:2-13 and subsection a.(4) of N.J.S.A. 11A:2-6 shall be made in writing to the Board no later than 20 days from receipt of the final written determination of the appointing authority. See also N.J.A.C. 4A: The instant matter concerns a release at the end of a WTP covered by N.J.S.A. 11A:2-6(a)4 as well as a disciplinary action covered by N.J.S.A. 11A:2-13 and subsection a.(4) of N.J.S.A. 11A:2-6; therefore the 20-day time limit is applicable. The 20-day time limitation is jurisdictional and cannot be relaxed. See Borough of Park Ridge v. Salimone, 21 N.J. 28, 46 (1956); See also Mesghali v. Bayside State Prison, 334 N.J. Super. 617 (App. Div. 2000), cert. denied, 167 N.J. 630 (2001); Murphy v. Department of Civil Service, 155 N.J. Super. 491, 493 (App. Div. 1978). The threshold issue in the instant matter is whether the petitioner filed the appeals of his release at the end of the WTP and of his removal with the Board in a timely manner. The Board finds that the petitioner did not file the appeal of his release at the end of his WTP in a timely manner. Specifically, the Board finds that the petitioner had notice that his employment was being terminated effective June 28, 2004 via the appointing authority s letter of June 17, 2004 due to unsatisfactory employment performance during the WTP. While acknowledging that the petitioner did not have all the substantive information he was entitled to regarding his employment performance deficiencies, the petitioner was on sufficient notice that his employment was being terminated. It is also clear from the record that the petitioner knew he had the right to challenge said termination inasmuch as he filed an appeal in the Law Division of the New Jersey Superior Court. However, as the Board has previously determined, the filing of an appeal in a different forum does not toll the time to file an appeal with the Board. See In the Matter of Richard Vogel (MSB, decided March 9, 1999); See also In the Matter of Jose Gonzalez (MSB, decided September 18, 1998). Therefore, since the petitioner did not appeal his release at the end of his WTP until February 28, 2005, his challenge of that action is time-barred. Regarding the petitioner s appeal of his removal from employment on charges, it appears that this appeal is timely filed since the FNDA was issued on February 5, 2005, and the appellant filed his appeal on February 28, Even though timely filed, generally, under circumstances as presented here, the appeal of the disciplinary action would be moot since the appellant did not file an appeal of his release at the end of his WTP in a timely manner. The rationale behind such determination is that even if the appellant were to prevail and have the charges dismissed and be entitled to reinstatement, the Board would not reinstate the appellant since he did not file a timely appeal of his separation from employment

5 based on his WTP. However, in the instant matter, since the appellant was immediately suspended on March 17, 2004 and was not separated from employment until June 28, 2004, the Board is compelled to refer the matter of the appellant s removal to the OAL for a hearing on the basis that if the appellant is successful in having the charges reversed such that he would have been entitled to be reinstated to his position, the appellant may be entitled to receive an award of back pay from the time of his immediate suspension until his separation from employment on June 28, ORDER Therefore, it is ordered that the matter of petitioner s request for a hearing as it pertains to his removal from employment on charges be transmitted to the Office of Administrative Law for a hearing as a contested case. It is also ordered that the petitioner s request for a hearing pertaining to the appeal of his separation from employment at the end of his WTP be denied.