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Connell v. Board of Review and City of Atlantic City

Decided: April 6, 1987.

BRENDAN L. CONNELL, APPELLANT,
v.
BOARD OF REVIEW AND CITY OF ATLANTIC CITY, RESPONDENTS



On appeal from a Final Decision of the Board of Review, Department of Labor.

Bilder, Gaynor and Scalera. The opinion of the court was delivered by Bilder, J.A.D.

Bilder

This is an appeal from a decision of the Board of Review which held that claimant was disqualified for unemployment benefits because of misconduct connected with his work.

Appellant worked as a police officer for Atlantic City. On June 25, 1985 he was involved as a driver in a two-car automobile accident which was fatal to the other driver. The accident took place in Beesleys Point, some 12 miles from Atlantic City, at a time when appellant was not fulfilling an active duty assignment. About three months later, on October 9, 1985, he was indicted for a third degree criminal offense, death by auto, N.J.S.A. 2C:11-5. The next day, October 10, 1985, he was charged with serious breach of discipline, N.J.A.C. 4:1-16.9(a)4,

and conduct unbecoming an employee in the public service, N.J.A.C. 4:1-16.9(a)11. He was suspended as of October 9, 1985 pending disposition of the criminal charges; the departmental hearing on the disciplinary action was postponed for the same period. On February 18, 1986 appellant pled guilty to the death by auto charge. On April 4, 1986 he was sentenced to a term of probation and ordered to forfeit his office as a police officer. Thereafter, by action dated April 16, 1986, the Atlantic City Police Department advised appellant he had been removed from office effective October 9, 1985.

On October 13, 1985, a few days after his suspension, appellant applied for unemployment benefits which were initially denied on the ground he was discharged for gross misconduct connected with work. Appellant appealed and on February 5, 1986 the Appeal Tribunal reversed, finding that no evidence had been produced to substantiate the charge that he had committed the pending death by auto charge. The tribunal did find, however, that because he was a police officer, the alleged misconduct was relevant although it occurred outside of Atlantic City.

As noted, defendant later pled guilty to the criminal charge. Atlantic City appealed on the basis of this new evidence. For good cause, the Appeal Tribunal reopened the matter and held a new hearing. In the light of the conviction the Appeal Tribunal found appellant had been discharged for gross misconduct connected with work, that he was disqualified for benefits as of April 14, 1986 and that he was not entitled to any benefit rights based on wages from Atlantic City prior to discharge. Accordingly, it held his October 13, 1985 claim invalid and that appellant was liable to refund any benefits received.

On appeal the Board of Review, after reviewing the matter on the record below reached the same conclusions except that it noted the disqualification related back to October 6, 1985. Accordingly, it modified the decision of the Appeal Tribunal as to the date of disqualification only.

On appeal from the decision of the Board of Review, appellant contends that his misconduct was not connected with his work and that a gross misconduct disqualification can only occur upon discharge, an event which did not occur until April 16, 1986; that a suspension cannot trigger disqualification.

The applicable section of the law relating to unemployment benefits, N.J.S.A. ...


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