In the Matter of Pamela Sitek DOP Docket No. 2004-4040 (Merit System Board, decided July 14, 2004) Pamela Sitek, a Practical Nurse at Runnells Hospital, Union County, represented by Benjamin Benson, Esq., petitions the Merit System Board for interim relief of her immediate suspension, effective May 11, 2004. By way of background, on May 28, 2004, the petitioner was served with a Preliminary Notice of Disciplinary Action (PNDA), immediately suspending her, effective May 11, 2004, and proposing her removal on various charges, including incompetency, inefficiency or failure to perform duties, conduct unbecoming a public employee, and violation of the appointing authority s policies and procedures relating to the use and storage of medications. Specifically, the appointing authority asserted that, on May 11, 2004, the petitioner consented to a search of her personal locker. As a result, a significant amount of narcotic and non-narcotic medication was located. The search uncovered several tablets of prescription medication, which was the property of Runnells Hospital, including Percocet, Ativan, Xanax and Ambien. 1 The PNDA also advised that a departmental hearing would be scheduled for June 22, 2004. It is noted that, at the petitioner s request, the departmental hearing has been adjourned until July 13, 2004. In the instant petition for interim relief, the petitioner asserts that, on May 11, 2004, she agreed to be interviewed by the police regarding an allegation that a co-worker illegally possessed and used narcotics. During the interview, she was informed that the co-worker had accused the petitioner of keeping medications in her personal locker at the hospital. The petitioner asserts that: For many years at Runnells, it has been a common and accepted practice for nurses to keep excess quantities of certain widely used medications in our lockers in case of patient emergencies. At times, Runnells would run into situations in which it either did not have adequate backup supplies of certain widely used medications, or in which the off-site pharmacy, located in Edison, New Jersey, could not fill a particular prescription within a reasonable amount of time at specific times of the day. The petitioner claims that, on May 11, 2004, Hospital Administrator Joseph Sharp advised her that she was being immediately suspended without pay. However, she claims that she was never advised of why the appointing authority sought her immediate suspension, the nature of the charges against her, or the general evidence in support of the charges. See N.J.A.C. 4A:2-2.5(b). Further, she asserts that she was not afforded an opportunity to respond to the charges prior to being immediately suspended. See N.J.A.C. 4A:2-2.5(b). The petitioner also notes that she was not served with a PNDA 1 It is noted that the Union County Prosecutor s Office also conducted an investigation into this matter. By letter dated May 24, 2004, Executive Assistant Prosecutor Anne K. Frawley advised that a criminal complaint would not be filed against the petitioner.
regarding her immediate suspension within five days, as required by N.J.A.C. 4A:2-2.5(a)1. Moreover, the petitioner argues that the appointing authority did not possess a basis to immediately suspend her based on the nature of the charges against her. In this regard, she contends that her possession of medication does not support a finding that she was unfit for duty, a hazard to any person if permitted to remain on the job, or that an immediate suspension was necessary to maintain safety, health, order, or the effective direction of public services. The petitioner also argues that her exemplary 16-year career with the appointing authority and the fact that it was a common and accepted nursing practice to store excess medications in her locker also negate any inference that there was a basis to immediately suspend her. In light of the procedural deficiencies and the appointing authority s failure to present a valid basis for an immediate suspension, the petitioner argues that she is clearly likely to succeed on the merits of an appeal of the disciplinary charges. In addition, the petitioner contends that there is a very real danger of immediate and irreparable harm, in that she has lost several thousands of dollars in salary and overtime since her immediate suspension without pay on May 11, 2004. Moreover, she notes that she has been forced to expend additional funds in order to retain an attorney in the instant matter. Finally, the petitioner contends that there is no danger of injury to any other party if the appointing authority is required to award her back pay for the period of the immediate suspension and counsel fees, and to schedule an immediate hearing. In response, the appointing authority, represented by Frank G. Capece, Esq., argues that the delay in issuing the petitioner s PNDA was occasioned by the simultaneous criminal investigation being conducted by the Union County Prosecutor s Office. Specifically, the appointing authority asserts that [u]ntil the criminal investigation was completed, the County was not provided with the necessary documentation to prepare or serve a [PNDA]. The appointing authority also notes that the PNDA recited a June 22, 2004 departmental hearing date based on discussions with the petitioner s union representative and the attorney representing her at the time, Michael Bukosky, Esq. 2 Moreover, the appointing authority submits a letter dated June 3, 2004 from the petitioner s present attorney, requesting a further adjournment of the departmental hearing. As a result, the appointing authority re-scheduled the hearing for July 13, 2004, a date that was mutually acceptable to the parties. In addition, the appointing authority submits a certification from Sharp, in which he states that he informed [the petitioner] that this matter appeared to be an extremely serious breach of Hospital policy both in terms of the narcotic and non-narcotic medicines found. Finally, the appointing authority argues that the petitioner s immediate suspension was necessary to maintain the health, safety and welfare of the hospital and its patients, and it contends that the storing of narcotics and other contraband in her locker is a serious matter. 2 While the record reflects that there was some confusion earlier in the departmental proceedings as to whether Bukosky or Benson was representing the petitioner, the Board notes that Bukosky has not submitted any arguments or evidence on behalf of the petitioner in the instant matter. In addition, in a letter dated June 4, 2004, the appointing authority s attorney notes that he has confirmed that Benson will be representing the petitioner.
CONCLUSION N.J.S.A. 11A:2-13 and N.J.A.C. 4A:2-2.5(a) provide that an employee may be suspended immediately and prior to a hearing when the employee has been formally charged with certain crimes or where it is determined that the employee is unfit for duty or is a hazard to any person if permitted to remain on the job, or that an immediate suspension is necessary to maintain safety, health, order or effective direction of public services. N.J.A.C. 4A:2-2.5(a)1 further provides that, when an appointing authority suspends an employee prior to a hearing, a PNDA with an opportunity for a hearing must be served in person or by certified mail within five days following the immediate suspension. N.J.A.C. 4A:2-2.5(b) provides that, prior to the imposition of an immediate suspension, the employee must be apprised either orally or in writing of why an immediate suspension is sought, the charges and general evidence in support of the charges and provided with sufficient opportunity to review the charges and the evidence in order to respond to the charges before a representative of the appointing authority. N.J.A.C. 4A:2-2.5(b) further provides that the employee s response may be either oral or in writing, at the discretion of the appointing authority. Initially, in the instant matter, the appointing authority s immediate suspension of the petitioner when it issued a PNDA was based on its determination that such a suspension was necessary to maintain health and safety. Specifically, the appointing authority asserted that the petitioner s storage of significant amounts of narcotic and nonnarcotic medications in her locker was at odds with hospital policy and practice. In reviewing this matter, it is not necessary to address the merits of the charges against the petitioner. Rather, the issue is whether the nature and seriousness of the charges support the necessity for an immediate suspension. As noted above, the petitioner has been charged with particularly troublesome conduct. Certainly, the discovery of significant quantities of prescription medications, including Percocet, Ativan, Xanax and Ambien, in the petitioner s personal locker presents cause for serious concern. Moreover, the petitioner s unauthorized possession of such medications clearly creates a potentially dangerous situation for the individual patients for whom the petitioner is responsible. Based on the nature of the charges against the petitioner, the Board finds that the appointing authority possessed a valid basis for imposing an immediate suspension, pending her departmental hearing on the merits of the charges, at the time it issued the PNDA. However, the petitioner has also challenged her immediate suspension on procedural grounds, based on the appointing authority s failure to comply with the requirements of N.J.A.C. 4A:2-2.5(a) and (b). See also Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). In a prior case addressing this issue, In the Matter of Anthony Recine (MSB, decided March 10, 1998), the Board found that the Township of Hamilton did not provide a proper pretermination hearing since Recine was not made aware of the charges and the general evidence in support of the charges at the time of his suspension, nor was a PNDA served within five days of his immediate suspension. Similarly, in the instant matter, the petitioner was immediately suspended without pay, commencing on May 11, 2004. The appointing authority concedes that, at that time, it
did not possess the specific documentation and evidence forming the factual basis for the petitioner s immediate suspension, which was in the possession of the Union County Prosecutor s Office. While Sharp attests that he informed [the petitioner] that this matter appeared to be an extremely serious breach of Hospital policy both in terms of the narcotic and non-narcotic medicines found, there is simply nothing in the record that suggests that the appointing authority fully complied with the mandate of N.J.A.C. 4A:2-2.5(b). Specifically, there is no evidence that the petitioner was advised of the general evidence in support of the charges against her or that she was provided an opportunity to review the charges and evidence in order to respond to the charges prior to the commencement of her immediate suspension. Moreover, the petitioner has demonstrated that the appointing authority violated N.J.A.C. 4A:2-2.5(a)1, when it failed to serve her with a PNDA within five days of imposition of that suspension. In this regard, the record reflects that the petitioner was immediately suspended on May 11, 2004, and she was served with a PNDA setting forth the charges and specifications of the charges and advising her of the opportunity for a hearing on May 28, 2004. The appointing authority s delay in issuing the PNDA unnecessarily delayed the petitioner s departmental hearing on the merits of the charges and improperly prolonged the period of her immediate suspension. While these procedural deficiencies do not warrant dismissal of the charges, it is appropriate to institute a remedy for the appointing authority s failure to serve the PNDA within the prescribed time frames. See e.g., In the Matter of Kenneth F. Hixenbaugh (MSB, decided February 24, 1998). Thus, since the petitioner did not receive the PNDA until May 28, 2004, 17 days after the commencement of her immediate suspension, it is appropriate that she be awarded back pay for the period from May 11, 2004 to May 28, 2004. Based on the record in the instant matter, the Board finds, however, that any delays in holding the departmental hearing on the merits of the charges following the issuance of the PNDA were requested on behalf of the petitioner. Thus, an award of back pay beyond May 28, 2004 is not warranted. See N.J.A.C. 4A:2-2.10(d)4. The Board also notes that the award of back pay shall not include items such as overtime pay. See N.J.A.C. 4A:2-2.10(d)1. With regard to the petitioner s request for counsel fees, N.J.S.A. 11A:2-22 provides that the Board may award reasonable counsel fees to an employee as provided by rule, and N.J.A.C. 4A:2-2.12 provides that for disciplinary appeals, reasonable counsel fees are awarded where an employee has prevailed on all or substantially all of the primary issues in an appeal. While the Board has awarded reasonable counsel fees in the past where employees have successfully challenged the imposition of immediate suspensions, the instant matter is distinguishable. See e.g., In the Matter of Debora U. Brown (MSB, decided June 9, 2004) (Board awarded reasonable counsel fees where the appointing authority did not possess a valid basis to impose an immediate suspension); In the Matter of Andrew Kullen (MSB, decided September 26, 2000) (Back pay, benefits and counsel fees granted where the appointing authority did not have a sufficient basis for an immediate suspension). See also In the Matter of James Campbell (MSB, decided January 11, 2000); In the Matter of Abnathy Mason (MSB, decided July 7, 1999). Here, while the Board has determined that the petitioner is entitled to back pay for the period of May 11, 2004 to May 28, 2004, based on procedural deficiencies related to her
immediate suspension during that time period, it has also concluded that the appointing authority possessed a valid basis to impose an immediate suspension, commencing on May 28, 2004 when it cured the procedural deficiencies, based on the nature of the charges against her. Thus, the petitioner has not prevailed on substantially all of the primary issues in the instant matter and is not entitled to an award of counsel fees in the instant matter. ORDER Therefore, it is ordered that the petitioner be awarded back pay for the period from May 11, 2004 to May 28, 2004, but that the petitioner s request for counsel fees be denied.