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In re J.B.

July 18, 2006

IN THE MATTER OF J.B., POLICE OFFICER (S9999D), HIGHLANDS BOROUGH*FN1


On appeal from a Final Administrative Decision of the Merit System Board.

The opinion of the court was delivered by: Stern, P.J.A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted June 13, 2006

Before Judges Stern, A.A. Rodríguez and Fall.

Docket No. 2005-64.

Appellant, J.B., appeals from a final administrative determination of the Merit System Board which affirmed the removal of his name from the eligible list for the position of police officer in Highlands Borough. The Board rejected appellant's procedural and substantive claims, and based its decision "on the totality of his background, including the falsification of his academic record, his arrest one and one-half years before having his name certified, and his discipline as a volunteer fire fighter."

We reject appellant's attack on the procedure utilized in considering his appeal from the initial determination of the Department of Personnel. The Board considered all facts relevant to the issue of eligibility and the Borough's request for removal of appellant from the list of eligibles. Furthermore, appellant ultimately received all the documentation presented to the Department of Personnel and had an adequate opportunity to respond.

With respect to the impact of appellant's arrest, the Board recognized appellant's contention that "the charges were downgraded to the disorderly persons offense of simple assault," that "he had the arrest expunged," that "his arrest occurred when he was [nineteen] years old" and that "this was his only arrest." However, the Board found significant the fact that appellant did not "explain the circumstances surrounding his arrest, which occurred only one and one-half years before his name was certified for the [] position" and that he provided no "evidence of rehabilitation."

The Board referred to our opinion in Tharpe v. City of Newark Police Dep't, 261 N.J. Super. 401 (App. Div. 1992), for the proposition "the presentation to an appointing authority of a pardon or expungement shall prohibit an appointing authority from rejecting an eligible based on such criminal conviction, except for law enforcement, fire fighter or correction officer and other titles as determined by the Commissioner."

In Tharpe we noted that an arrest "standing alone, may have no persuasive force in assessing an applicant's qualifications," but "may [nevertheless] warrant the removal of an appellant's name particularly where the position sought involves enforcement or administration of the law." 261 N.J. Super. at 406. We further stated that "the relevant circumstances should be carefully considered" in terms of "whether the circumstances surrounding the arrest 'adversely relate[] to the employment sought.'" Ibid. (alteration in original) (citing N.J.S.A. 11A:4-11). Tharpe relied on N.J.S.A. 11A:4-10 and N.J.S.A. 11A:4-11, and concluded that someone arrested could not be worse off than someone convicted of a crime.

N.J.S.A. 11A:4-10 provides:

Eligibles may be questioned as to criminal convictions and pending criminal charges. Eligibles for a law enforcement, fire fighter or correction officer title ...


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