On appeal from a final administrative action of the Merit System Board, DOP No. 2005-2317, OAL No. CSV 562-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Yannotti and LeWinn.
Appellant, Tony Mack, who was defeated in his run for mayor by Trenton Mayor Douglas Palmer, lost his position as the coordinator of Trenton's Bureau of Recycling when the Bureau's functions were eliminated. He asserts that he was removed for political reasons. An Administrative Law Judge (ALJ) agreed with him, but the Merit System Board disagreed, and in a December 20, 2006 decision, found that Trenton's termination of Mack's employment was justified. On Mack's appeal from the Board's decision, we affirm.
We summarize the facts from the transcript of Mack's hearing before the ALJ in February, March and April, 2006.
On February 11, 1991, Mack was provisionally appointed as Trenton's Recycling Coordinator in the Department of Public Works, and was permanently appointed to that post on October 13, 1992. As of the May 2002 mayoral election, he and Palmer had a political and social relationship. Mack had been "an intricate part" of Palmer's mayoral campaigns for the preceding twelve years, and Palmer had been instrumental in Mack becoming a freeholder.
According to Mack, in April 2002, Palmer privately told him that he was not going to seek re-election in 2006. When Palmer heard rumors that Mack was contemplating running for mayor in 2002, Palmer "called [him] over to assure [him] that this was [Palmer's] last time," and after that Mack could "go for it."
Mack testified that Palmer publicly made his decision known at an election eve rally on the Monday before the May 2002 election. Nonetheless, approximately a month and one-half after Palmer's 2002 victory, he told Mack that he had changed his mind about the 2006 election, and he attempted to dissuade Mack from running. Although Palmer did not subsequently tell Mack not to run, Mack asserted that Bill Watson, Palmer's political advisor, told him that they needed to "sit down and talk to discuss this." Palmer announced his 2006 candidacy for mayor in 2003. He denied ever asking Mack not to oppose him and claimed he first learned that Mack intended to run for mayor from a June 2003 newspaper article.
Rodney Washington, a voter registration coordinator and field worker, had been involved in Trenton politics for twenty-five years. He was friendly with Mack and had been friendly with Palmer. Describing himself as not the "best" employee, Washington was terminated from his municipal position in October 2002. According to Washington, the City alleged that he "had dumped some tires and what you call double dipping, got paid for it." Although he was acquitted on criminal charges, his termination was upheld after an administrative hearing. He acknowledges that he had between ten and fourteen prior disciplinary infractions because he "took advantage of the situation because of [his] political pull. [He] had the mayor."
Washington claimed that immediately after Palmer's May 2002 victory, Palmer announced to a group of political people that it would be his last term and "one of the guys is going to have to replace" him. Thus, beginning in June 2002, Washington began "boosting" Mack for mayor. In October 2002, Palmer angrily told Washington to stop promoting Mack and that he was "cutting him off." When disciplinary charges were lodged against Washington two weeks later, Washington called Palmer as he did on prior occasions when he had been in trouble. Although Palmer had made telephone calls on Washington's behalf in the past, this time Palmer told him to "[c]all your boy Tony up."
Palmer defeated Mack in the 2006 mayoral election.
When Jane Feigenbaum became Trenton's Acting Business Administrator in 2002, the City was providing residential and commercial recycling services. Residential recycling was performed by Waste Management, Inc., a private contractor, and commercial recycling was performed "in-house" by the City's Recycling Bureau. A portion of the commercial recycling was done by the City under contract with the State. Eleven persons were employed in the Recycling Bureau; three were dedicated to the State contract.
The Recycling Bureau was funded, in part, by two trust funds. The Regular Recycling Trust Fund, which was the repository of generated revenues from the sale of recyclables, was anticipated to "fund, if not all, a good portion of the program." Another trust fund, the State Recycling Trust Fund, paid portions of employees' salaries, including Mack's.
Eric Jackson, the Director of Public Works, testified that in mid-2001, Mack recommended the purchase of a new sorting machine for recyclables. Mack claimed that the sale of unsorted recyclables would generate $40 a ton, while the sale of sorted recyclables could bring $200-250 per ton. He asserted that the new system "would have reduced [Trenton's] solid waste landfill budget by another million or $2 million. This was the overall objective of the conveyor system, to reduce the amount of money we pay for landfill costs." The sorting machine, which Trenton purchased for over $200,000, was never put into operation and remained with the manufacturer for resale.
Donald Arrington, Trenton's Sanitation Superintendent and a former employee of the Recycling Bureau, disputed Mack's testimony. He claimed that it was illegal for recyclables to be deposited in a landfill and that Mack's testimony about "landfill savings" was inaccurate.
During 2001 and 2002, Feigenbaum began examining the efficiency of various City operations to determine if "it made sense to continue performing certain operations in house." A review of fire department operations resulted in the consolidation of firehouses and an increase in the number of personnel on trucks. Other scrutinized operations included sanitation, recycling and forestry because similar operations had been privatized in other municipalities. Feigenbaum explained that the City's financial resources were limited because much of its property, which is state-, county-, and federally-owned, was tax-exempt, and funds that the City had been receiving for state-owned properties had been frozen since 1995. For all but two municipalities, recycling in Mercer County had been done through the Mercer County Improvement Authority (Improvement Authority) under contract with a private company.
Denying that Palmer said anything to her about eliminating the recycling program, Feigenbaum identified a December 19, 2002, e-mail from Budget Officer Elana Chan to Eric Jackson, in which Chan expressed alarm about the funding for recycling. In response to an inquiry from Jackson as to whether $22,000 could be taken from the Regular Trust Fund to purchase a truck, Chan wrote:
In the last five months, the Recycling division has charged 3 big items against this old Trust:
(1) Recycler Box Truck $59,900
(2) 10% deposit with Mayfran Sorting ...