In the Matter of James Reid Docket No (Merit System Board, decided January 17, 2007)

Transcription

1 In the Matter of James Reid Docket No (Merit System Board, decided January 17, 2007) The appeal of James Reid, a Senior Planner with the County of Monmouth, of his 10-day suspension on charges, was heard by Chief Administrative Law Judge Laura Sanders (ALJ), who rendered her initial decision on November 27, 2006, modifying the 10-day suspension to a five-day suspension. Exceptions were filed on behalf of the appellant and 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 ALJ s initial decision, but did not adopt the ALJ s recommendation to modify the 10-day suspension to a five-day suspension. Rather, the Board upheld the 10-day suspension. DISCUSSION The appellant was charged with conduct unbecoming a public employee, misuse of public property and violation of the Local Government Ethics Law. See N.J.S.A. 40A: Specifically, the appointing authority asserted the appellant s involvement with and advocacy of a local community organization created a conflict of interest with his public position. It was also asserted that he utilized County time and his County account to participate in activities related to the community organization. Upon the appellant s appeal, the matter was transmitted to the Office of Administrative Law for a hearing. The ALJ set forth that the appellant, a Senior Planner, was assigned to assist in the update of the plan for the Route 130 corridor in the northern portion of the County, which generally entailed the creation of planning maps, conducting various types of infrastructure studies, and meeting with other public agencies. In 2004, a non-profit community organization known as the Messengers of Peace began to promote the development of the River Route Edu-Tainment Complex along the Route 130 corridor. The appellant became aware of and supported the group s proposal. The ALJ found that, in March 2005, the appellant utilized his County e- mail account to contact a Rutgers University professor to solicit his assistance in developing a business plan for the project. In response, the appellant s immediate supervisor, Robert Kull, cautioned the appellant regarding his activities, noting that it could create a perception that his promotion of the project and solicitation of assistance could be perceived as an indication that the County approved of the project. The ALJ also noted that, from January through April 2005, the appellant was listed on the website for the Messengers of Peace as an advisory board member

2 in his capacity as a Senior Planner with the County, but, at the appellant s request, the reference to his official position was deleted from the website. The appellant also coordinated an April 5, 2005 meeting among members of the Messengers of Peace, a Smart Growth representative, and members of a local transportation group to discuss the development project. In addition, on April 22, 2005 and April 25, 2005, the appellant attended a Messengers of Peace meeting during work hours. Following the April 25, 2005 meeting, he was quoted in the newspaper, in his capacity as a Senior Planner with the County, stating that the organization had demonstrated that the project was feasible. Upon learning of the newspaper article, Kull and Mark Remsa, the Director of Economic Development and Regional Planning, notified the appellant that he was not to attend any further meetings involving the Messengers of Peace on County time, and he was advised that he would no longer be assigned to the Route 130 planning project. A review of the appellant s activity, however, reflected approximately 130 incoming and outgoing messages between the appellant and the CEO of the Messengers of Peace, occurring as late as June 5, Against this backdrop, the ALJ evaluated the testimony and evidence presented and found that, with the exception of the appellant s attendance at the April 5, 2005 meeting, the appellant s actions and attendance at the various meetings were outside the scope of his official duties. Thus, his attendance at these meetings during business hours amounted to the pursuit of his private interests on County time. The ALJ also concluded that the appellant repeatedly made remarks that were reasonably interpreted as representing the County s official position on the project without authorization to do so, and he continued to do so despite numerous warnings by his superiors of the dangers associated with this behavior. Further, the ALJ found that the appellant failed to disclose to his supervisors the depth of his involvement in the redevelopment project until May Finally, the ALJ found that the appellant utilized the County s system on multiple occasions to advocate the Messengers of Peace project. Thus, the ALJ determined that the appointing authority had met its burden of proving that the appellant s conduct constituted conduct unbecoming a public employee and misuse of County property. However, the ALJ recommended dismissing the charge relating to violation of the Local Government Ethics Law. In this regard, the ALJ concluded that the appellant s charged duties did not involve economic development, and his involvement with the Messengers of Peace, therefore, did not impact the proper discharge of his duties or prejudice his judgment in the exercise of his duties. The ALJ also emphasized that the appellant did not have any financial interest in the project advocated by the Messengers of Peace. Accordingly, the ALJ recommended modifying the 10-day suspension to a five-day suspension. In its exceptions to the initial decision, the appointing authority argues that the appellant violated the Local Government Ethics Law. The appointing authority

3 asserts that N.J.S.A. 40A: does not require a financial interest in an organization in order to find a conflict, and it contends that the appellant s role as a member of the advisory board to the Messenger of Peace unequivocally establishes that he had an interest in the success of that organization. In addition, the appointing authority maintains that the appellant s involvement and statements created the impression, both with the Messengers of Peace and the public, that he represented the County s official position on the project. Further, while it concedes that the appellant did not have the authority to ensure that the organization was successful with its project, the appointing authority emphasizes that he repeatedly held himself out to have such authority. Finally, the appointing authority argues that the seriousness of the appellant s conduct warrants a 10-day suspension without regard to his prior disciplinary history. In his exceptions, the appellant asserts that his efforts on behalf of the Messengers of Peace during the course of his employment did not constitute advocacy. Rather, he claims that his contact was limited to referring a community group to resources that could offer technical expertise with the project. He argues that the use of his County was limited to such endeavors, which he maintains was within the scope of his official duties. The appellant also asserts that his removal from the Route 130 project constituted a demotion and additional disciplinary action. The Board agrees with the ALJ s assessment of the record with regard to the charges of conduct unbecoming a public employee and misuse of County property. However, the Board also concludes that the appellant s conduct constituted a violation of the Local Government Ethics Law. N.J.S.A. 40A: provides, in pertinent part, that local employees shall refrain from: (a) Hav[ing] an interest in a business organization... which is in substantial conflict with the proper discharge of his duties in the public interest; * * * (c) Us[ing] or attempt[ing] to use his official position to secure unwarranted privileges or advantages for himself or others; (d) Act[ing] in his official capacity in any matter where he... has a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment;

4 (e) Undertak[ing] any employment or service, whether compensated or not, which might reasonably be expected to prejudice his independence of judgment in the exercise of his official duties. In the instant matter, there is no dispute that the appellant served on the advisory board of the Messengers of Peace, a community group that was seeking County approval of a proposed redevelopment project on County property. Despite repeated warnings by his supervisors, the appellant continued to make contact with other public and private officials in his capacity as a Senior Planner with the County in an attempt to further the goals of the Messengers of Peace. In several such communications, the appellant spoke favorably of the proposed redevelopment projects, thereby conveying the impression that the County was in support of it. Although the appellant continues to characterize his efforts on behalf of the Messengers of Peace as simple referrals and a service he would provide to any other group that sought his assistance, it must be emphasized that he served on this group s advisory board. The appellant s actions in the matter at hand resulted in a blurring of the line between his private community interests and his official duties. His publicly known position on the group s advisory board and his related position with the County certainly could create the public perception that the appellant could and would utilize his County position to further the goals of the Messengers of Peace at the expense of other groups with competing interests. When viewed together with the appellant s actions on behalf of the Messengers of Peace, i.e., referring to its project in favorable terms as a County official and arranging and attending meetings between the group and other individuals, it is evident that the appellant utilized information and contacts he had, by virtue of his position with the County, to further his private interest in a community group. One must question whether the appellant would have been as accommodating to a developer with different ideas concerning the development of the proposed site for the River Route Edu-Tainment Complex. Such queries are precisely those which the Local Government Ethics Law is aimed at preventing. With regard to the proper penalty, the Board s review is de novo. In addition to its consideration of the seriousness of the underlying incident in determining the proper penalty, the Board also utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). Although the Board applies the concept of progressive discipline in determining the level and propriety of penalties, an individual s prior disciplinary history may be outweighed if the infraction at issue is of a serious nature. Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). As noted above, the appellant s activities constituted conduct unbecoming a public employee, misuse of County property, and violation of the Local Government Ethics Law. The conduct at issue is certainly serious in nature and warrants a 10-day suspension, regardless of the absence of prior discipline in the appellant s employment history. This penalty should serve to impress upon the appellant the impropriety of such activities as a member of the public workforce.

5 Accordingly, based on the totality of the record, including the seriousness of the offense, the Board concludes that the penalty imposed by the appointing authority is neither unduly harsh nor disproportionate to the offense and should be upheld. ORDER The Merit System Board finds that the action of the appointing authority in imposing a 10-day suspension was justified. Therefore, the Board affirms that action and dismisses the appeal of James Reid. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.