On appeal from a final decision of the New Jersey Merit System Board, DOP Docket No. 2006-2631.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.S. Fisher and Kestin.
Joseph Poplawski appeals from a May 11, 2007 decision of the Merit System Board (Board) rejecting Poplawski's challenge to the action of his employer, Burlington County (the appointing authority), in removing his name from a promotional list for sheriff's officer sergeant. He argues that the decision must be overturned because the Board omitted to address a constitutional issue he raised, which required an evidentiary hearing; and generally denied him due process of law in not affording him an evidentiary hearing at which he could place in question the motivation for the action taken by the appointing authority. He also contends that the Board's decision was not supported by the record and was, therefore, arbitrary.
The Board found that Poplawski's "employment history adversely relate[d] to the position of Sheriff's Officer Sergeant. Accordingly, [Poplawski's] unsatisfactory employment record constitutes sufficient cause to remove his name from the eligible list . . . ."
We have reviewed the record in the light of the arguments advanced by the parties and discern no merit in the issues raised on appeal. There was no need for an evidentiary hearing, where the only question would have been the propriety of basing the decision made on Poplawski's employment history, consisting of two matters of record.
Both of those matters involved suspensions from duty for conduct unbecoming a public employee. They arose from comments made by Poplawski regarding a superior officer. In the first matter, a minor disciplinary sanction was imposed, a one-day suspension. The second matter was settled between the parties--while that matter was pending in the Office of Administrative Law after Poplawski challenged the disciplinary action taken--with the imposition of an agreed-upon six-day suspension from employment, a major discipline by definition. See N.J.A.C. 4A:2-2.2(a)(3).
Poplawski does not question the accuracy of the employment record relied upon; rather, he seeks, in this matter, to relitigate the sufficiency of the earlier charges brought against him, especially the second one. Such a collateral attack, on either a legal ground or a factual basis, is inappropriate where the earlier proceeding was resolved via a settlement of the issues.
The record provides ample support for the findings and conclusions reached. With due deference for the Board's discretionary determination based on its policy-making prerogatives, we discern nothing arbitrary, capricious, or unreasonable in the decision made. See Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998); Mazza v. Bd. of Trs, 143 N.J. 22, 25 (1995); Campbell v, Dep't of Civil Serv., 39 N.J. 566, 562 (1963).
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