In the Matter of Deborah Payton, City of Jersey City DOP Docket No (Merit System Board, decided January 17, 2007)

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1 In the Matter of Deborah Payton, City of Jersey City DOP Docket No (Merit System Board, decided January 17, 2007) The appeal of Deborah Payton, a Clerk with the City of Jersey City, of her removal, effective April 11, 2005, on charges, was heard by Administrative Law Judge JoAnn Lasala Candido (ALJ), who rendered her initial decision on December 8, Exceptions were filed on behalf of the appellant and cross exceptions were filed on behalf of the appointing authority. Having considered the record and the ALJ s initial decision, and having made an independent evaluation of the record, the Merit System Board (Board), at its meeting on January 17, 2007, accepted and adopted the Findings of Fact as contained in the attached initial decision, but did not adopt the ALJ s recommendation to uphold the removal. Rather, the Board modified the penalty to a five-day suspension. DISCUSSION The appointing authority presented the appellant with a Final Notice of Disciplinary Action (FNDA) which indicated that she was removed on charges of conduct unbecoming a public employee and neglect of duty. Specifically, the appointing authority asserted that on March 3, 2005, the appellant received five $1 bills from co-worker Lucien Taduran which she took home and failed to turn in as required. Upon the appellant s appeal, the matter was transmitted to the Office of Administrative Law for a hearing as a contested case. In her initial decision, the ALJ noted that Taduran testified that on March 2, 2005, he received five $1 bills for photocopying a map for a member of the public. Taduran photocopied the $1 bills and since he was due to leave for the day, he locked the money in his office. Taduran testified that he gave the money and a copy of the receipt to the appellant on March 3, The appellant acknowledged that she received the money from Taduran on March 3, She maintained that when she returned to work after lunch, Taduran gave her the money while she was walking to the restroom. As a result, she placed the money and the receipt in her back pocket and forgot about it. The appellant testified that on the following day, she was questioned about the $5 at which time she remembered placing it in her back pocket. Although the appellant asked if she could return home to get the money, she was not allowed to do so. Instead, she was immediately suspended. The appellant testified that her Union President told her to hold

2 onto the money and return it at the departmental hearing, which she did. Eduardo Tolozo, the Tax Assessor, testified that he made a photocopy of the bills the appellant turned in at the departmental hearing and compared them to the photocopies Taduran had made. However, the serial numbers did not match. The ALJ found that it was unusual for anyone to photocopy a cash payment. Additionally, the ALJ found that there was no policy in place as to what to do with cash that was received after the guard had picked up the deposit for that day. Based on the foregoing, the ALJ found that Taduran credibly testified that he had photocopied the money he had received. Therefore, the ALJ concluded that although it might have been plausible that the appellant forgot the money as she claimed, the fact that the cash she presented at the departmental hearing had different serial numbers made her claim less plausible. Consequently, the ALJ concluded that the difference in the serial numbers indicated that the appellant did not leave the receipt and cash intact. As a result, the ALJ found that the appointing authority had met its burden of proof and upheld the appellant s removal. Upon its de novo review of the record in this matter, the Board agrees with the ALJ s description and characterization of the incident. Therefore, the Board upholds the ALJ s Findings of Fact. However, the Board does not agree that the record supports both the charge of conduct unbecoming a public employee and the charge of neglect of duty. In this regard, although the Board agrees that the appointing authority sufficiently supported the charge of neglect of duty, the Board does not agree that it supported the charge of conduct unbecoming a public employee. New Jersey courts have applied the standard of conduct unbecoming in numerous cases, and have said that [t]he phrase is an elastic one, that has been defined as any conduct which adversely affects the morale or efficiency of the bureau... [or] which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services. Karins v. City of Atlantic City, 152 N.J. 532, 554 (1998). The Board finds that the instant matter did not meet the standard of conduct unbecoming a public employee. In particular, the Board notes that Taduran gave the appellant the money while she was on her way to the restroom, and that she then placed the money in her back pocket and she appears to have forgotten about it. Moreover, it is noted that the next day, when questioned regarding the money, the appellant remembered that it was in her back pocket and requested to return home to get the money. However, the appointing authority refused and instead immediately suspended her although the ALJ found that there was no policy in place as to what to do with money that was received after the deposit had been made for the day. Further, while the ALJ found the fact that the serial numbers did not match particularly significant in establishing the charges, the Board notes that no

3 explanation was provided as to why the appellant was not allowed to return home the next day to get the money. Instead, she returned the money at her first opportunity, which was at the departmental hearing. Therefore, based on the foregoing, the Board concludes that the appointing authority did not support the charge of conduct unbecoming a public employee and dismisses that charge. However, the Board agrees with the ALJ that the appointing authority did support the charge of neglect of duty, since the appellant failed to secure the cash she received in a safe place and neglected to promptly submit the cash to the appropriate person. With regard to the penalty, in addition to considering the seriousness of the underlying incident in determining the proper penalty, the Board utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). In determining the propriety of the penalty, several factors must be considered, including the nature of the offense, the concept of progressive discipline, and the employee s prior record. George v. North Princeton Developmental Center, 96 N.J.A.R. 2d (CSV) 463. The ALJ found that a review of the appellant s record revealed that she had been employed by the appointing authority for approximately two years and that she had no prior disciplinary record. With regard to the seriousness of the offense, it must be recognized that the most serious charge against the appellant, i.e., conduct unbecoming a public employee, has been dismissed. In this regard, the record does not establish that the appellant intentionally took the $5. Rather, the record evidences that she placed the money in her back pocket and forgot about it. When reminded of the money, she attempted to return the money, but was not allowed to do so. The Board is troubled that the appointing authority failed to allow the appellant to return the money the next day, especially in light of the fact that it had no policy as to what to do with money that was received after the deposit was made. Accordingly, based on the totality of the record, including the seriousness of the offense and the appellant s prior record, the Board concludes that a five-day suspension is the appropriate penalty. Since the penalty has been reduced, the appellant is entitled to back pay, benefits and seniority for the period following the five-day suspension to the date of actual reinstatement. See N.J.A.C. 4A: N.J.A.C. 4A: provides for the award of counsel fees only where an employee has prevailed on all or substantially all of the primary issues in an appeal. The primary issue in any disciplinary appeal is the merits of the charges, not whether the penalty imposed was appropriate. See James L. Smith v. Department of Personnel, Docket No. A T2 (App. Div. March 18, 2004); Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121, 128 (App. Div. 1995); In the Matter of Robert Dean (MSB, decided January 12, 1993); In

4 the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In this regard, the Board notes that the appellant has prevailed on one of the two charges, and her inaction which led to the sustaining of the remaining charge cannot be considered egregious. Moreover, it must be recognized that the more serious charge of conduct unbecoming a public employee was dismissed in its entirety. The Board has previously found that an award of partial counsel fees may be appropriate under circumstances where, as here, an appellant has prevailed on the most serious charge or charges leaving only incidental charges, which give rise to a significantly reduced penalty, such as a minor discipline. Therefore, the Board finds that an award of counsel fees in the amount of 75 percent of services is appropriate. See Thomas Grill and James Walsh v. City of Newark, Docket No. A T3 (App. Div., January 30, 2001); In the Matter of Diane Murphy (MSB, decided June 8, 1999). Compare, In the Matter of Joanne Chase (MSB, decided June 24, 1997) (Board awarded appellant counsel fees in the amount of 90 percent of services where one of two disciplinary charges was upheld, and the appellant s removal was reduced to an official written reprimand); In the Matter of James Haldeman (MSB, decided September 7, 1994); In the Matter of Donald Fritze (MSB, decided January 26, 1993). This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalty imposed by the appointing authority. However, in light of the Appellate Division s decision, Dolores Phillips v. Department of Corrections, Docket No. A T2F (App. Div. Feb. 26, 2003), the Board s decision will not become final until any outstanding issues concerning back pay and/or counsel fees are finally resolved. In the interim, as the court states in Phillips, supra, if it has not already done so, upon receipt of this decision, the appointing authority shall immediately reinstate the appellant to her permanent position. ORDER The Merit System Board finds that the action of the appointing authority in imposing a removal was not justified. Therefore, the Board modifies the removal to a five-day suspension. The Board orders that the appellant be granted back pay, benefits and seniority from the end of her suspension to the date of her reinstatement to employment. The amount of back pay awarded is to be reduced and mitigated to the extent of any income earned or that could have been earned by the appellant during this period. The Board further orders that the appellant be awarded counsel fees in the amount of 75 percent of services. Proof of income earned and an affidavit of services in support of reasonable counsel fees shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision. Pursuant to N.J.A.C. 4A: and N.J.A.C. 4A:2-2.12, the

5 parties shall make a good faith effort to resolve any dispute as to the amount of back pay and/or counsel fees. However, under no circumstances should the appellant s reinstatement be delayed pending resolution of any potential back pay and/or counsel fees dispute. The parties must inform the Board, in writing, if there is any dispute as to back pay and/or counsel fees within 60 days of issuance of this decision. In the absence of such notice, the Board will assume that all outstanding issues have been amicably resolved by the parties and this decision shall become a final administrative determination pursuant to R. 2:2-3(a)(2). After such time, any further review of this matter should be pursued in the Superior Court of New Jersey, Appellate Division.