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10 N.J.A.R. 89

Valluzzi, John v. Bergen County Department of Purchasing
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Citation: 10 N.J.A.R. 89
Decision Date: 1988
Agency: MERIT SYSTEM PROTECTION BOARD
Synopsis: Appellant was suspended and then, in a second disciplinary action, removed from his title of Senior Systems Analyst, Bergen County. Both appeals were transmitted to the Office of Administrative Law and the cases were consolidated. In the first case, appellant was suspended for 90 days for being absent for more than five business days without permission. In the second case, appellant was removed for (1) falsifying his residency address; (2) signing an affidavit falsely with the intent to defraud the county of $5,278.00, and (3) failing to complete assignments timely and correctly. Appellant had been employed by the county since 1972. In 1985, the county attempted to 'retire' appellant but the Civil Service Com- mission ordered him reinstated with back pay because the removal was an improper forced retirement. Upon reinstatement, appellant was assigned to the Department of Purchasing. He worked in that position for 18 days before being suspended in the first disciplinary action involved in the consolidated appeal. The administrative law judge assigned to the case found, in the suspension matter, that appellant's absence for eight business days was due to the serious illness of his daughter. Appellant requested time off to take his daughter to the hospital, but the request was denied by the head of the Department of Purchasing. Although appellant did not pursue the request through other channels, he was entitled to three days absence as of right to care for sick family members under his collective bargaining agreement. Therefore, the time that appellant was absent without permission was actually five days, not enough to trigger the RNGS ('resigned not in good standing') penalty set by Department of Personnel regulations. N.J.A.C. 4:1-16.14(a). There- fore, the judge found that, given mitigating factors, only a minor disciplinary penalty was proper. The judge ordered the suspension reduced to five days. In the second case, the judge found no wrongdoing by appellant and reversed the removal. Regarding the falsification charge, the judge found that when appellant gave a Bergen County address in response to questions at an earlier departmental hearing he had no intent to falsify. He considered that his home because he paid taxes in New Jersey, although he also used a residence in New York. The false affidavit charge resulted from a certification that appellant had not collected unemployment compensation while he was 'retired' from the county in 1985. The certification was related to collecting back pay after his reinstatement following the 1985 matter. The judge found no intent to defraud, accepting as credible appellant's explanation that he signed the affidvait, which was prepared by his attorney, without reading it. Additionally, regulations pertaining to back pay do not require an employee to disclose unemployment compensation. N.J.A.C. 4:1-5.5(c). Finally, the judge found that appellant's failure to complete assignments was due to the fact that when he was re- instated to the Department of Purchasing he was not given duties appropriate to his title. Instead, he was assigned to work on a com- puter, for which he had no training. An attempt to have appellant transferred to another office where he could perform duties ap- propriate to his title was rejected by the head of the Department of Purchasing. The judge found that appellant was being asked to work out of title and was not afforded any formal training to perform tasks he was assigned. The judge ordered appellant reinstated to duties appropriate to his permanent title. Appellant was granted back pay and counsel fees, pursuant to N.J.S.A. 1 IA:2-22 and N.J.A.C. 4A:2-2.10, 4A:2-2.11 and 4A:2-2.12. Upon review, this initial decision was adopted by the Merit System Board. Barry J. Cohen, Esq., for appellant (Amster & Rosensweig, attorneys) Michael B. Ryan, Esq. for respondent (by special appointment of Peter Scandariato, Esq., County Counsel)
Rule(s) Cited: 4:1-5.5(c) 4:1-16.14(a) 4:1-17.5(b)2 4:1-64 4:1-65 
Citation Tracker adopted-Merit System Bd.; dismissed-App. Div. A-3269-87, 10/27/88 (unreported) [Updated through 1991]