In the Matter of Paul Birkenstam m, Assistant Business Manager 1 (S 0718L), Departm ent of Hum an S ervices CSC Docket No.

Transcription

1 In the Matter of Paul Birkenstam m, Assistant Business Manager 1 (S 0718L), Departm ent of Hum an S ervices CSC Docket No (Civil Service Com m ission, d ecided November 22, 2011) Paul Birkenstamm appeals the attached decision of the Division of State and Local Operations (SLO), which found that the appointing authority had presented a sufficient basis to remove the appellant s name from the Assistant Business Manager 1 (S0718L), Department of Human Services, eligible list on the basis of an unsatisfactory background report. The appellant, a veteran, took the open competitive examination for Assistant Business Manager 1 (S0718L), achieved a passing score, and was ranked first on the subsequent eligible list. The appellant s name was certified to the appointing authority on February 19, In disposing of the certification, the appointing authority requested the removal of the appellant s name from the eligible list on the basis of an unsatisfactory background report. Specifically, the appointing authority indicated that when the appellant previously worked for the appointing authority at the Division of Medical Assistance and Health Services (DMAHS), 1 his employment was discontinued due to an ethical violation. The appointing authority also indicated that the appellant was not a good fit for the position based on the responses he made during his interview. 2 On appeal to SLO, the appellant asserted that his name should be restored to the eligible list, but he did not provide any specific arguments. SLO determined that the appointing authority had presented a sufficient basis to remove the appellant s name from the subject eligible list. On appeal to the Civil Service Commission (Commission), the appella nt asserts that when he previously served at DMAHS, he was charged with inability to perform duties and with conduct unbecoming a State employee. 3 In this regard, the appellant states that his work performance was not at issue, but the underlying issues actually involved his wife s place of employment, his failure to disclose his wife s place of employment, and the fact that her company did busin ess with the State. In addition, the appellant avers that on his first day of employment with DMAHS, he was asked to complete an Outside Activity Questionnaire 1 The appellant previously served as a Supervising Program Developmen t Specialist, Man agem ent and Finance from August 2, 2008 to October 16, Official personn el records reflect th at the appellant resigned in good standing. 2 The appointing auth ority contends that when th e appellan t was in terviewed as a prospective candidate for employmen t, his answers focu sed on the data/it perspective instead of th e fiscal operations aspect of the position. 3 Th e appellant was served with a Preliminary Notice of Disciplinary Action (CWA) on October 7, 2008.

2 (Questionnaire), but he did not adequately provide answers to the questions regarding departmen t, division/bureau, service/title, and duties, because he was unsure about the correct response due to the fact that he was a novice in his position. The appellant adds that these questions were later completed by another employee, which is evident from t he different style of writing on the form. Further, the appellant questions if a reasonable person, who previously only worked with budgets in private industry, would be expected to have knowledge about all of the particulars of Medicaid or the names of Medicaid companies doing business with the State. In this regard, the appellant contends that given his background, such knowledge involving Medicaid could only be obtained through work experience or from on the job training. The appellant asserts that as a result, his responses to the Questionnaire only reflected the limited knowledge that he possessed at the time, which was practically nothing. The appellant adds that in order to clear his n ame of the charges, he scheduled a Loudermill hearing, but it was cancelled without a reason. Moreover, the appellant avers that he resigned in good standing and he should not be forever barred from pursuing employment with the State. In response, the appointing authority maintains tha t the appellant s name should be removed from the eligible list for an unsatisfactory background report. Specifically, the appointing authority asserts that while the appellant resigned in good standing, it cannot be construed as an entitlement to future employment. In addition, the appointing authority contends that when he completed the Questionnaire, in response to question number seven, Are there any members of your immediate family employed by or through partnership or corporate office, hold an interest in any firm performing any service for the State of New J ersey or directly or indirectly receiving funding from the State, the appellant answered No. In this regard, the appointing authority states that while the appellant indicates that someone a ssisted him in completing the Questionnaire because he was a novice to the organization, he did not indicate that someone else other than himself checked no to question number seven. The appointing authority adds that if the appellant had any concerns a bout how to adequately answer the Questionnaire, he should not have signed it without having full understanding of the questions. Further, the appointing authority explains that it was disclosed that the appellant s wife was employed at a Health Maintenan ce Organization (HMO) that directly receives funding from DMAHS. It was determined by the appointing authority s Ethics Liaison Officer and the State Ethics Commission that this arrangement constituted a conflict of interest. 4 Moreover, the appointing au thority asserts that it must appoint an individual with impeccable trust who will assist with managing a multi-million dollar budget, and the appellant is not an appropriate candidate for the position at issue. 4 S ee also, In the Matter of S upervising Program Developm ent S pecialist, Managem ent and Finance (S 3045G), S tatewide (CSC, decided February 11, 2009).

3 It is noted that official person nel records indicate that the appellant was appointed to the position of Analyst Trainee with the Board of Public Utilities on September 6, CONCLUSION N.J.A.C. 4A:4-6(b), in conjunction with N.J.A.C. 4A:4-4.7(d), provides that t he appellant has the burden of proof to show by a preponderance of the evidence that an appointing authority s decision to remove his or her name from an eligible list was in error. N.J.A.C. 4A:4-6.1(a)9 allows the removal of an eligible s name from an eligible list for other sufficient reasons. Removal for other sufficient reasons includes, but is not limited to, a consideration that based on a candidate s background and recognizing the nature of the position at issue, a person should not be eligible for appointment. N.J.A.C. 4A:4-4.7(a)1, in conjunction with N.J.A.C. 4A:4-6.1(a)7, allows for the removal of an individual from an eligible list who has a prior employment history which relates adversely to the position sought. In the instant matter, the appellant argues that his name should be restored to the eligible list because he resigned in good standing from his position at DMAHS in The appellant also argues that he was a novice while employed in his position at DMAHS and was unable to adequately complete the Outside Employment Questionnaire. He also argues that a reasonable person with his experience would not have been aware of every Medicaid company that conducts business with the State. Initially, the appointing authority argues that the appellant was not a good fit for the position because he did not perform adequately during his interview. The appointing authority s claim that the appellant was not a good fit for the position based on his interview is not a sufficient basis for removing his name from the eligible list. In this regard, while the appointing authority s assessment of the appellant s interview skills may be sufficient to bypass a non-veteran candidate, that r eason cannot apply to a veteran. S ee N.J.A.C. 4A:4-4.8(a)3. Thus, since the appellant is a veteran, the appointing authority could not request to bypass his name on the basis that he was not a good fit for the position. The appointing authority also argues that the appellant failed to adequately complete the Outside Employment Questionnaire, and it is responsible for appointing an individua l with impeccable trust who will assist with managing a multi-million dollar budget. The record reflects that the appellant resigned in good standing, after receiving a Preliminary Notice of Disciplinary Action seeking termination of his employment. Nevertheless, for the reasons discussed below, his resignation in good standing alone is an insufficient reason to restore his name to the eligible list.

4 The appellant s argu ment that a reasonable person in his position would not have been aware of every Medicaid company that conducted business with the State is unpersuasive. In this regard, it is reasonable to conclude that the appellant was aware that his wife was employed by an HMO. As such, he should have, at the very least, reported on the Outside Employment Questionnaire that his wife worked for an HMO or requested information from the appointing authority in order to discern whether her HMO conducted business with the State. Further, while the appellant claims that he did not adequately complete the Outside Employment Questionnaire because he was a novice and did not understand the questions, it was his responsibility to adequately complete the Outside Em ployment Questionnaire. In this regard, he should have asked questions about the forms before he submitted them to the appointing authority. While the appellant argues that the appointing authority later added information to the Outside Employment Questionnaire, it does not overcome the fact tha t he failed to complete it or disclose that his wife worked for the HMO. Such behavior is inappropriate for an individual applying for the position at issue, which is a high level position with fiscal responsibility. Thus, since the appellant confirms the appointing authority s arguments that he failed to disclose information that was determined to be an ethical violation, there is a sufficient basis to remove his name from the eligible list. Moreover, the Commission has rem oved candidates from eligible lists under circumstances where the candidate, in his or her prior employment, resigned while disciplinary charges were pending or resigned in good standing in lieu of discipline and had a prior disciplinary history. For example, in S trasser v. Cam den County (MSB, decided May 28, 1992), the removal of an eligible from an open competitive list was upheld based on the eligible s employment history which showed that he had resigned while disciplinary charges imposing a removal were pending. In regard to the appellant s argument that the removal of his name from the eligible list is indicative that he will be forever barred from pursuing employment with the State, his arguments in that regard are moot since he obtained employment in State service as an Analyst Trainee on September 6, Finally, while the appellant complains that his Loudermill hearing was cancelled without reason, his argument in that regard is untimely since he failed to appeal that matter. Nevertheless, since the appellant was a member of the Communications Workers of America (CWA), he was unable to appeal his disciplinary matter to the Commission. In this regard, N.J.S.A. 11A:2-14 provides that, when the State and the majority representative have agreed to a disciplinary review procedure that provides for binding arbitration of disputes involving major disciplinary actions, that procedure is the exclusive avenue of appeal. The current collective bargaining agreement between CWA and the State of New J ersey provides for binding arbitration of disciplinary matters. Thus, the Commission lacks jurisdiction over such disciplinary appeals, but the appellant could have challenged the disciplinary charges through the arbitration process if he wished to

5 do so. It appears that he opted to resign in good standing in lieu of pursuing such an appeal. Accordingly, given the position at issue and in consideration of the evidence in the record, the appointing authority has presented a sufficient basis to remove the appellant s name from the eligible list for Assistant Business Manager 1 (S0718L), Department of Human Services. ORDER Therefore, it is ordered that this appeal be denied. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.