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In re Lucas

November 16, 2007

IN THE MATTER OF HARRY LUCAS.


On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2003-850.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: September 11, 2007

Before Judges Axelrad and Payne.

Harry Lucas appeals from a May 25, 2006 final determination of the Merit System Board affirming the decision of the appointing authority, Gloucester County, to terminate his employment as a budget officer effective July 31, 2002, based on a finding of incompetency, inefficiency or failure to perform duties; and insubordination pursuant to N.J.A.C. 4A:2-2.3(a)(1) and (2). Lucas challenges the sufficiency of the evidence in support of the disciplinary charges and the quantum of the punishment. We affirm.

I.

Appellant, who had a degree in accounting and finance, was retained by the County in l986 to help automate its financial reporting. In May l987, he was hired as a budget officer in the County's Treasury Department. In l993, he was transferred to the Department of Government Services. By l997, appellant's principal employment activity was administering the County's involvement with the Community Development Block Grant ("CDBG") Program being run by the U.S. Department of Housing and Urban Development. Appellant received the necessary training and instruction to complete his assigned tasks, including the preparation of reconciliation reports.

During this period, appellant received kudos and recognition from the County. He also received oral criticisms, a plethora of written reprimands, a three-day suspension without pay for chronic inefficiency in September l997, and a two-day suspension without pay for inefficiency in performing his duties in August l999.

Around May 2001 appellant was reassigned to the County Division of Workforce Development. In September 2001, he was suspended for ten days without pay, effective September 17 through October 2, for inefficiency, failure to perform duties, and insubordination.

The County was dissatisfied with appellant's conduct during the six-month period following his return to work. On March 28, 2002, the County served a Preliminary Notice of Disciplinary Action charging appellant with: (1) incompetency, inefficiency or failure to perform duties; (2) insubordination; and (3) conduct unbecoming a public employee, in violation of N.J.A.C. 4A:2-2.3(a)(1), (2) and (6), and seeking his removal. The charges were based on allegations that appellant failed to complete work in a timely and efficient manner, failed to perform the work assigned by his supervisor, and placed an inappropriate document on the desk of his departmental head. Following a departmental hearing, the hearing officer sustained the charges and removal. A Final Notice of Disciplinary Action was issued making appellant's removal effective July 31, 2002.

Lucas appealed, and the matter was referred to the Office of Administrative Law (OAL) for a contested hearing, which was held commencing in May 2005. The following individuals testified on behalf of the County: Tamara Primas-Thomas, who as the Division Head of the County's Workforce Development and other workforce programs in the Department of Economic Development, was appellant's direct supervisor from 2001 to 2002; William Gerson, the County's Fiscal Officer responsible for reviewing appellant's reports; Gary Schwarz, the County's Deputy Treasurer and Chief Budget Officer, who was Gerson's supervisor; and James Cannon, the County's Personnel Director. Appellant testified on his own behalf.

The following facts were presented at the hearing through testimony and memoranda regarding appellant's unsatisfactory performance and deficient work effort after his return from the September 2001 ten-day suspension. Appellant failed to submit the September 2001 reconciliation report in the proper format and by the October 9, 2001 due date; he failed to timely submit the October reconciliation report by the November 8 due date; he failed to submit the November reconciliation report by the December 7 due date; he failed to submit the December reconciliation report by the January 8 due date; and he failed to submit the February reconciliation report by the March 7 due date. In addition, appellant submitted the November and December reconciliation reports with errors, which could not be reconciled with County records. He also did not begin to honor Primas-Thomas' numerous prior verbal and written instructions to submit pre-encumbrance forms with Individual Skill Requests until January 1, 2002, and, as of the time of his removal, had not completed the make-up pre-encumbrance forms for the deficient Skills Requests that he had processed from July l, 200l. In addition, in violation of previous directives and requests, appellant repeatedly refused to sign timesheets, which were necessary to allocate costs to appropriate grants; continued to submit vouchers to the Director without Primas-Thomas' signature; failed to process bills on a weekly basis; and failed to provide listings of obligations for classroom enrollments. The witnesses also testified about the time they had to take from their schedules to correct appellant's mistakes to avoid consequences to the County.

Appellant acknowledged that he failed to timely submit the September through December reconciliation reports and did not begin signing the timesheets until December, and then signed them on an inconsistent basis. In addition, appellant admitted that up until the date of his termination, he was still submitting vouchers without his supervisor's signature, still failing to process bills weekly and still refusing to use forms as directed; he never corrected the third set of reports as requested to be corrected and resubmitted; and he had not completed two funding years of pre-encumbrance forms.

The County also produced testimony and evidence of approximately thirty written memoranda warning appellant of his inefficiency, unsatisfactory performance, failure to perform his duties, and insubordination. These included about eight written warnings for the relevant time period noting appellant's failure to: submit the reconciliation reports on a timely basis and in the proper format, perform pre-encumbrances as previously directed and provide corrected State reports, sign timesheets, and process bills weekly. They further noted errors in reconciliation reports and revised reports and "blatant neglect of responses to [supervisor's] authority and supervision." The record also contains evidence of a multitude of verbal warnings regarding the same issues following appellant's return from his ten-day September suspension. In addition, Primas-Thomas met regularly with appellant in an ...


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