merit system board appeals

On October 5, 2009, the Appellate Division decided In the Matter of John Fasanella, Docket No.: A-4455-07T1. In the case, John Fasanella, a sheriff’s officer in Mercer County, appealed a decision of the Merit System Board (“Board”) upholding adverse administrative determinations regarding a promotional examination for lieutenant.

The promotional examination for lieutenant was announced with a closing date of December 21, 2004. Fasanella was one of the nine individuals who applied for and were admitted to that examination. The examination was conducted in written form on June 9, 2005, however, Fasanella, who was on active military duty from May 12, 2004 to June 25, 2006, was unavailable to take the examination on the date it was given.

The June 9, 2005 examination resulted in a four-name eligibles list, promulgated on September 29, 2005, with an expiration date of September 28, 2008. The first-ranked person on that list, a non-veteran, was appointed effective December 1, 2005.

On July 24, 2006, shortly after Fasanella’s return from active military duty, the Department of Military and Veterans Affairs granted his application for veteran’s status. He made several requests of the Department of Personnel (“DOP”) to schedule his make-up examination for the lieutenant position. His examination occurred in June 2007. A memorandum from DOP, dated September 10, 2007, noted an “employment list change” with Fasanella ranked first on the list with veteran’s status. An October 15, 2007 memorandum from the Sheriff’s Office to Fasanella advised that the ranking had been modified as “for future certifications only.” Fasanella promptly filed his internal appeal from the latter determination.     

Subsequently, DOP notified Fasanella that his veteran’s status designation had been incorrect and that the eligibles list had been corrected to reflect his rank on the then-existing list as “A1 non-veteran.” Fasanella appealed that decision.

In considering the issues raised in the two appeals, the Board rejected Fasanella’s contention that he was entitled to the lieutenant appointment because he was, ultimately, first on the eligibles list and had veteran’s status. The Board determined that Fasanella did not qualify for veteran’s status at the time the list was certified. The Board also decided that the latitude conferred on the appointing authority by operation of the “rule of three” validated the appointment of the person who had been designated, notwithstanding that he was second on the list after Fasanella’s name had been added.  This appeal ensued.Continue Reading Promotional Examination Results Remanded in Light of USERRA

On June 18, 2009, the Appellate Division decided In the Matter of Andre Ruiz, Firefighter (M2271E), City of Camden, Docket No.: A-2611-07T2. In the case, Andrte Ruiz appealed the Final Administrative Action of the Merit System Board (“Board”) issued on October 11, 2007, concluding that the City of Camden (“City”) properly bypassed Ruiz under the “Rule of Three.” Ruiz also appeals from the Board’s January 22, 2008 Final Administrative Action denying his petition for reconsideration.

On October 3, 2005, the Department of Personnel (“DOP”) issued Certification Number Ol052133 to the City respecting open-competitive lists M2013A and M2271E containing the names of 150 eligible candidates for the position of firefighter. Ruiz was on list M2271E. The City returned the certification in March 2006 proposing the removal of several names, including that of Ruiz, ranked thirty-sixth, on the ground that he failed to meet the City’s residency requirements. On April 3, 2006, the City appointed thirty-five eligible candidates to the position of firefighter while the propriety of the proposed removals was still pending before the DOP.

On January 18, 2007, the Board determined that the City had failed to establish that Ruiz and five other eligible candidates, including Ruiz’s brother who resided at the same address as Ruiz, did not reside in the City. As such, the Board ordered the City to either produce sufficient documentation to support removal of the six eligible candidates based on non-residency, appoint them, or produce adequate justification for bypassing them or removing them on other grounds within sixty (60) days. 

On March 14, 2007, the City responded to the Board’s January 18, 2007 decision by submitting additional documentation to the DOP seeking to establish that Ruiz and the five other eligible candidates did not meet the City’s residency requirements. Thereafter, on April 3, 2006, the City notified the DOP that it had used the Rule of Three to appoint thirty-five eligible candidates to the position of firefighter. Despite stating it employed the Rule of Three, the City represented that no eligible candidates had been bypassed and appointments had been made through eligible candidate No. 74. The City sought entry of an order that it had properly disposed of open-competitive lists M2013A and M2271E.

On March 20, 2007, the DOP issued a disposition-deficiency notice to the City, notifying it that the reasons it had submitted for removal of Ruiz and two other eligible candidates, including Ruiz’s brother, based upon non-residency were not acceptable. It permitted the City to bypass two of the three eligible candidates provided the City submitted a short, written positive statement explaining why other lower or equally ranked eligible candidates were appointed. However, it required that the City appoint one of the three eligible candidates.Continue Reading Candidate Properly Bypassed Under Rule of Three

On April 15, 2009, the Appellate Division decided In the Matter of Cornelius Caruso, Docket No.: A-1612-07T1. In the case, Cornelius Caruso appealed his termination as police officer in the City of Orange Police Department.

Caruso became a police officer in 2000. In 2005, he began to experience serious problems related to his use of alcohol. He voluntarily entered a program at the Carrier Clinic in December 2005. When he did so, he failed to follow the Department’s requirement that he notify the communication supervisor and apply for a leave of absence. No charges were filed with respect to that omission.

Caruso left the Carrier Clinic in March 2006. He was found by the Department to be fit for duty and returned to work on April 1, 2006. Caruso was instructed to make periodic reports concerning his recovery, which instruction was confirmed in a letter from the City’s attorney to Caruso’s attorney. No such periodic reports were ever made.

The Department permits fifteen days of sick leave per year. The Department assessed Caruso for use of 2006 sick leave only during the period from January 1 to January 10, 2006. The period from January 11 to March 31, 2006, was charged as a combination of administrative and compensatory leave. After Caruso’s return to duty in April, he went out on sick leave from April 6 to April 18; May 10 to July 7; October 25 to November 4; and December 12 to the end of 2006. Consequently, by December 2006, Caruso had taken significantly more sick leave than was permitted by the Department.

On December 12, 2006, Caruso left work because of an eye infection. However, according to Caruso, his problem with alcohol use returned in December 2006. On December 22, 2006, Caruso left his home and traveled to Hazelden, a rehabilitation clinic located in Minnesota. He again failed to notify the communications supervisor, although others apparently notified one of his superiors who subsequently contacted Caruso and arranged for him to surrender his service weapon. Caruso also failed to complete the required form for a leave of absence.

As a result, on January 18, 2007, the City filed formal disciplinary charges against Caruso. The disciplinary charges were as follows: (1) performance of duty; (2) insubordination; (3) obedience to laws and rules; and (4) abuse of sick leave. 

Caruso left Hazelden and returned to New Jersey on January 19, 2007. He started intensive outpatient aftercare on January 23, 2007, which required his attendance at a program for four hours a day, four days per week, as well as attendance at Alcoholics Anonymous sessions.

Continue Reading Termination of Police Officer Arising from Substance Abuse Upheld

On March 30, 2009, the Superior Court of New Jersey, Appellate Division decided the case In the Matter of Richard J. Rivera, Docket No. A-3672-07T2. In the case, Richard J. Rivera, a county corrections officer assigned to the Monmouth County Correctional Institute (“MCCI”), appealed from a final decision of the Merit System Board suspending him

In In the Matter of Thomas F. Fricano, Borough of Freehold, Docket No.: A-2280-07T3, the Appellate Division addressed Appellant Thomas Fricano’s appeal from final decisions of the Merit System Board (“Board”), dated September 27, 2007 and December 7, 2007, upholding his resignation in good standing from the Borough of Freehold Police Department.

By way of background, Fricano received a regular appointment as a police officer in Freehold on April 3, 2006. The appointment was subject to the successful completion of a one-year probationary working test period, commencing after completion of a police training course. On February 2, 2007, Fricano, in a written letter, resigned to pursue other opportunities in law enforcement. The appointing authority accepted the resignation, which was made effective February 22, 2007. 

The circumstances surrounding Fricano’s resignation are in dispute and at the core of the appeal. According to Fricano, on February 2, 2007, after having served ten months of his one-year probationary working term, he was summoned to the office of the Police Chief. Allegedly, the Chief ordered Fricano “to resign or be terminated immediately.” Denied his request for legal representation or to have a PBA representative present, Fricano drafted and submitted a letter of resignation under duress and coercion. Thereafter, on February 16, 2007, Fricano’s counsel wrote to the Chief requesting that he be able to rescind the resignation. The Borough attorney advised Fricano that he would not be reinstated, instead stating that “they could have fired him instead.” Subsequently, on March 13, 2007, Fricano was issued a preliminary notice of disciplinary action, charging him with numerous violations. On March 22, 2007, the appointing authority withdrew the charges and, thereafter, on March 28, 2007, issued Fricano a letter indicating that he did not satisfactorily complete his working test period and that he was being terminated effective April 3, 2007.

The Borough offers a different version. When called to his office, the Chief advised Fricano that his performance during the working test period had not been satisfactory, and, therefore, offered him the option to resign effective February 22 or face termination for failure to satisfactorily complete his working test period. This offer was made so that Fricano could avoid any stigma which might attach to an involuntary termination. Fricano decided to resign and submitted a resignation letter the same day. In the letter, Fricano explain that he resigned to pursue “a different choice in the Law Enforcement Career.” Although he did not work after February 2, he was paid through February 22, and his resignation was recorded effective February 22, 2007. After being subsequently informed of Fricano’s intention to challenge his resignation, the police department issued the preliminary notice of disciplinary action on March 13, 2007. On March 22, 2007, the police department withdrew the charges and, instead, as a cautionary measure, issued a letter to Continue Reading Officer’s Resignation Not Attributed to Duress, Upheld