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In re Blackson

August 12, 2008

IN THE MATTER OF KHADIHHA BLACKSON, JOHN GERMINO, PETER WICKMAN, JEFFREY MERKEL, AND ALBERT COSTON.


On appeal from a Final Decision of the New Jersey Merit System Board, Docket Nos. 1999-1305 and 1999-2602.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 28, 2008

Before Judges Graves and Yannotti.

John Germino, Peter Wickman, Jeffrey Merkel, and Albert Coston appeal from a final determination of the Merit System Board (Board), dated September 7, 2006, which upheld their layoffs from positions with the Housing Authority of the City of Camden (HACC).*fn1 For the reasons that follow, we affirm.

The HACC was created pursuant to the "Local Redevelopment and Housing Law," N.J.S.A. 40A:12A-1 to -50. The HACC receives funds and is regulated by the United States Department of Housing and Urban Development (HUD), pursuant to federal law. In the 1990s, HUD identified a number of serious deficiencies in the operations of the HACC, including political interference with day-to-day operations of the agency, appointments that did not reflect the population of the community, inadequate management, staff and administration, and deficit budgeting.

In July or August 1997, HUD assumed control of the HACC and seized its assets. As part of the HUD plan to make the agency more efficient, the HACC restructured its Department of Modernization (DOM) by hiring a private entity to assume its responsibilities, laid off certain employees within the DOM, and eliminated thirteen additional permanent positions.

Appellants and other employees affected by the layoffs filed petitions with the Department of Personnel (DOP), alleging that the layoffs were in bad faith and were for reasons other than efficiency and economy. The DOP referred the matter to the Office of Administrative Law (OAL) for a hearing before an administrative law judge (ALJ), who rendered an initial decision on August 31, 2005, in which he concluded that the layoffs were in bad faith. The ALJ recommended that the layoffs be reversed and the employees receive full back pay from the time of their layoffs, less any monies they may have earned during that period.

By order dated September 21, 2005, the Director of the OAL granted the Board's application for an extension of the time for issuing its decision to November 29, 2005. At its meeting of November 22, 2005, the Board rejected the ALJ's initial decision and remanded the matter to the OAL for further proceedings.

In a decision dated December 9, 2005, which memorialized its action on November 22, 2005, the Board stated that the ALJ's initial decision was inadequate because the ALJ had not presented the Board "with a coherent and comprehensive description of the actual testimony and evidence in the record." The Board noted that it was unable to determine whether the ALJ's findings were based on credible evidence in the record. The Board also noted that the ALJ found appellants had been laid off for reasons of economy and efficiency but nevertheless determined that the layoffs had been implemented in bad faith. The Board stated that this apparently contradictory finding "require[d] clarification." In addition, the Board found that the ALJ's proposed remedy was "not correct."

Because the ALJ who rendered the August 31, 2005 decision had retired, the matter was assigned on remand to ALJ Joseph Lavery. ALJ Lavery advised the parties that he intended to decide the matter based on the record previously compiled, with a limited evidentiary hearing, if required. The parties did not object to this procedure. Thereafter, the parties submitted additional information to the ALJ, and did not request any additional hearings. ALJ Lavery closed the record on June 5, 2006, and rendered an initial decision on July 18, 2006, upholding the layoffs.

By decision dated September 7, 2006, the Board adopted ALJ Lavery's initial decision. Germino, Merkel, and Wickman filed a notice of appeal on October 24, 2006. Coston filed a notice of appeal on April 24, 2007, and thereafter we granted Coston's motion for leave to file his appeal as within time. By order entered on July 23, 2007, we consolidated the appeals.

Appellants raise the following issues for our ...


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