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In re Kennedy


July 30, 2007


On appeal from the Merit System Board, 2002-1557.

Per curiam.


Submitted: January 17, 2007

Before Judges Kestin and Payne.

Paul Kennedy appeals from a final decision of the Merit System Board (MSB) upholding the action of the State Parole Board in returning Kennedy to his formerly held permanent title position as a Senior Parole Officer at the end of a working test period in a higher position. We affirm.

In rendering its decision, the MSB adopted the findings of fact and conclusions of law contained in Administrative Law Judge (ALJ) Bruno's initial decision. Kennedy raises two points on appeal: that the decision, rooted in a finding of unsatisfactory performance in the higher position, was "not supported by substantial evidence, when the incidents of performance at issue were merely stylistic and not substantive[;]" and that the MSB erred "in concluding that [Kennedy] did not attain permanent status . . . when the Parole Board failed to notify [him], on or before the last day of the working test period [that it had] request[ed] an extension of the working test period."

Kennedy had been employed by the Parole Board since September 15, 1984. In March 2001, he held a position as Senior Parole Officer. On March 24, 2001, he was appointed to the position of Assistant District Parole Supervisor subject to completing a working test period that, according to the Department of Personnel, began on April 6, 2001. He was assigned to the Parole Board's District # 9 office in Newark. Until July 1, 2001, he served under District Parole Officer Devine. After that date, he served under Devine's successor, District Parole Officer Alt.

Devine completed the initial evaluation of Kennedy's performance as Assistant Parole Supervisor. She rated him as "satisfactory" and explained that rating in her testimony at the hearing in this matter. However, on July 31, 2001, as the end of Kennedy's initial working test period approached, Alt evaluated Kennedy's work as unsatisfactory, specifying reasons and recommending that the working test period be extended. On October 4 or 5, Alt issued a third progress report, with an "unsatisfactory" rating for specific reasons stated, and recommended another extension of the working test period. On October 4 or 5, however, Alt issued a notice to Kennedy that he was terminated from the position of Assistant District Parole Supervisor. Kennedy appealed to the MSB and the matter was referred to the Office of Administrative Law as a contested case.

At the hearing, Alt testified regarding particular instances of deficient performance. The incidents she cited were supported by the testimony of another Assistant District Supervisor at the District #9 office and several parole officers. Kennedy, himself, testified in rebuttal, shedding a different light on the instances related.

The ALJ noted that the matter was governed by N.J.A.C. 4A:2-4.3(b), which places upon the employee the burden of proving that a termination following a working test period and a return to a former position was a decision reached by the appointing authority in bad faith. The ALJ evaluated all of the testimony and supporting evidence, and concluded that no bad faith existed here. He found "no evidence of furtive design, ill will or other illicit motivation in any of Alt's progress reports[,]" and that the criticisms she had attached to the second and third progress reports had been "constructive."

Kennedy had also argued in the hearing, as he does on appeal, that the extension of the working test period had been untimely. That argument was based on the premise that the working test period had begun on March 24, 2001, the day he commenced his duties in the new position, rather than on April 6, 2001, the date designated by the Department of Personnel. The ALJ rejected this argument on the basis that the Department of Personnel had fixed April 6, 2001 as the beginning date of the working test period in accordance with general standards and practices that governed such matters, and that the appointing authority had nothing to do with that determination. The ALJ observed, as well, that Kennedy, at all pertinent times, had been aware of the unfavorable evaluations of his performance.

In adopting the decision of the ALJ, the MSB must be taken to have recognized the validity of the good faith test that informed the ALJ's review. The burden of proof allocation in N.J.A.C. 4A:2-4.3(b) promotes that standard. Taken together, the standard and the burden of proof allocation require the MSB to accord great weight to the discretionary decision of the appointing authority. The concept has a well-established provenance. See Briggs v. Department of Civil Service, 64 N.J. Super. 351, 356 (App. Div. 1960). On review, our duty is to defer, in turn, to the determination of the MSB, the State agency charged by the Legislature with administering the field of public employment.

On appeal to this court, the issue is even narrower. It is merely whether there was substantial evidence to support the finding of the [MSB] that the appointing authority exercised good faith in permitting the judgment that the employee was not competent to perform satisfactorily the duties of the position. [Ibid.]

This venerable principle of appellate review, and its correlative requirement that we respect the discretionary determinations of State agencies within their fields of assigned authority, have been reaffirmed by the Supreme Court in a number of cases, most recently in In re Tammy Herrmann, ___ N.J. ___ (2007).

The policy deference we are obliged to accord extends, as well, to the standards of pertinent regulations that inform the Department of Personnel's actions in this subject matter area. See N.J.A.C. 4A:4-5.1 to -5.5. The beginning date for the working test period established by the Department must be taken to control; we have been given no reason to believe that anything that occurred here deviated from general practices in the subject matter area. Therefore, Kennedy's argument, based upon the March 24 presumed beginning date of the working test period, that the appointing authority's request for an extension was untimely and that, as a consequence, Kennedy attained permanent status before his appointment as Assistant District Parole Supervisor was terminated, is without sufficient merit to warrant further discussion, R. 2:11-3(e)(1)(E), especially in the light of the absence of prejudice noted in the ALJ's initial decision.



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