January 8, 2009
IN THE MATTER OF PAUL BISHOP.
On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2006-796.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2008
Before Judges Lisa and Sapp-Peterson.
Paul Bishop appeals from the final decision of the Merit System Board upholding his removal from his position as an employment specialist in the Essex County Department of Economic Development (County). We affirm.
The precipitating event that ultimately led to Bishop's removal stemmed from his arrest on February 15, 2005, in connection with a non-work-related matter. He remained incarcerated for sixty days, was released and, within a matter of days, was again incarcerated for an additional thirty-four days.
On February 25, 2005, the County personnel director sent Bishop a certified letter to his home address advising him that he had been absent from work for more than five consecutive days without notifying the County of the reason for his absence and without providing the requisite medical proof. The letter informed Bishop that if he failed to return to work by March 1, and did not submit the appropriate documentation, he would be considered as having resigned not in good standing. The letter was sent certified mail to his home address.
On May 10, 2005, Bishop received a preliminary notice of disciplinary action recommending his removal from employment. In the notice he was charged with (1) failure to perform duties, N.J.A.C. 4A:2-2.3(a)(1); (2) inability to perform duty, N.J.A.C. 4A:2-2.3(a)(3); (3) chronic and excessive absenteeism, N.J.A.C. 4A:2-2.3(a)(4); (4) conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); (5) neglect of duty, N.J.A.C. 4A:2-2.3(a)(7); and (6), under an "Other" category, absence without official leave, abandonment of position, failure to follow County policies and procedures, N.J.A.C. 4A:2-2.3(a)(11).
The specifications in support of the charges stated that Bishop had been absent from work beginning February 16, 2005, without notifying the County of his absence, was considered a no-call, no-show status, and that his status was in direct violation of the terms of his probationary employment period as set forth in a Stipulation of Settlement executed between him and the County in July 2004. The specifications provided further that as of May 10, 2005, Bishop had failed to contact the County regarding his absence and, therefore, he was considered to have resigned not in good standing.
On May 26, 2005, Bishop did not attend the departmental hearing because he was still incarcerated. At the conclusion of the hearing, the hearing officer determined that the County had sustained its burden of proof "demonstrating that Bishop should be terminated from his job with the County of Essex because of his absence from work without official leave." Bishop appealed this determination to the Department of Personnel. The matter was transferred to the Office of Administrative Law as a contested case and assigned to an Administrative Law Judge (ALJ) for a formal hearing.
At the conclusion of the hearing, the ALJ issued an Initial Decision, finding that Bishop's case was distinguished from that line of cases involving employees who failed to report to work as a result of incarceration. See Eduardo Diaz v. City of Newark, CSV 11721-03, initial decision, (March 18, 2005), http://lawlibrary.rutgers.edu/oal/search.html>; see also Kodow Amparbin v. City of Newark, CSV 1547-03, initial decision, (November 18, 2005), http://lawlibrary.rutgers.edu/oal/search. html>.
The ALJ noted that in both of those cases, there was no timely notification to the employer of the employees' incarcerated statuses. The ALJ found:
By contrast, [i]n this case, [Bishop] contacted Mr. Ismail [his union representative] on the date of his arrest and then contacted his [i]mmediate supervisor, Roy Sanders, within five working days. Indeed, [Bishop] contacted Roy Sanders several times thereafter although, obviously, he was not in a position to contact Roy Sanders or anyone in the County each day of his incarceration.
Thus, the ALJ concluded that despite obvious constraints, Bishop made some effort to comply with the County protocol. The ALJ reasoned that under the totality of the circumstances, although he failed to fully comply with the County's leave policy, Bishop's imprisonment prevented him from willfully neglecting his duties or absenting himself from work and therefore he committed no misconduct.
The County filed exceptions to the ALJ's initial decision arguing that there is no statute, regulation, decisional law, or policy that mandates that an employee be given automatic leave upon incarceration and that the decision to grant a leave of absence under such circumstances is left to the appointing authority. It additionally argued that in granting an employee a leave of absence, the County is obliged to consider when an employee will return to work and that in Bishop's case, at the time of his absence due to incarceration, no fixed return date could be established. Bishop filed cross-exceptions noting that the ALJ properly determined that under the circumstances of his incarceration, he had substantially complied with the County's notice requirements.
Upon its de novo review, the Board accepted the factual findings of the ALJ but rejected the ALJ's ultimate determination that leave of absence should have been automatically granted because Bishop's absence was involuntary and he timely notified his supervisor. The Board reasoned that there was no requirement that an employee be provided with leave for incarceration and therefore Bishop was properly charged with chronic or excessive absenteeism and job abandonment. It additionally found that "even if [Bishop] had properly and timely requested a leave of absence, it could not be considered unreasonable for the appointing authority to have denied such a request given [Bishop's] incarceration." The present appeal followed.
On appeal, Bishop raises the following points for our consideration:
POINT II*fn1 THE MERIT SYSTEM BOARD'S DECISION VIOLATES EXPRESS AND IMPLIED LEGISLATIVE POLICIES.
POINT III THE MERIT SYSTEM BOARD DISREGARDED THE DETERMINATION OF THE ALJ WITHOUT DISPUTING ANY OF THE FINDINGS OF FACT ISSUED BY THE ALJ.
A. THE BOARD IGNORED THE WAY IN WHICH PAUL BISHOP'S COMMUNICATION OPTIONS WERE LIMITED AFTER HIS SUDDEN ARREST.
B. THE BOARD AND ESSEX COUNTY WERE UNREASONABLE IN REQUIRING PAUL BISHOP TO STRICTLY ADHERE TO THE PROCEDURES FOR REQUESTING EMERGENCY LEAVE WITHOUT PAY.
C. THE BOARD MISCHARACTERIZED PAUL BISHOP'S APPEAL OF THE DECISION NOT TO GRANT HIM AN EMERGENCY LEAVE OF ABSENCE.
POINT IV AS PRECEDENT FOR ITS DECISION, THE MERIT SYSTEM BOARD RELIED ON SEVERAL PRIOR CASES AS PRECEDENT FOR ITS DECISION WHOSE FACTS ARE CLEARLY DISTINGUISHABLE FROM THE PRESENT CASE.
We have carefully reviewed the record in light of the applicable law, and conclude that the decision of the Board is supported by substantial credible evidence in the record. The Board did not clearly err. Bishop's arguments to the contrary are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). We add the following brief comments.
Bishop's absence from work for more than sixty days is undisputed. That he was incarcerated on charges that were eventually dismissed is irrelevant since his custodial confinement was unrelated to this employment. Thus, the Board properly concluded:
In this regard, [the County] asserts that as part of the Settlement Agreement, [Bishop] had agreed to conform his conduct to all acceptable work standards, which includes attending work regularly.
In this regard, there is no requirement that an employee be provided with leave for incarceration, and therefore, [Bishop] was properly charged with chronic or excessive absenteeism and job abandonment. See N.J.A.C. 4A:6-1.1 et seq. See also, John Harold Clark v. New Jersey Dep't of Transp., Docket No. A-3321-97T2 (App. Div. March 10, 1999); In re Vincent Greenfield (MSB, decided May 23, 2007); In re Louis March (MSB, decided December 15, 2004); In re Lester Smith, [(MSB, decided October 14, 1998)]. It is also noted that [Bishop's] written request for leave was first presented to the County on April 20, 2005, two months after he was first incarcerated. Moreover, even if [Bishop] had properly and timely requested a leave of absence, it could not be considered unreasonable for the appointing authority to have denied such a request given [Bishop's] incarceration.
Under our standard of review, the Board's decision should not be disturbed on appeal unless it is arbitrary, capricious or unreasonable. Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). There are four questions to be considered by a reviewing court:
(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Ibid. (citations omitted).]
Furthermore, we must "defer to an agency's expertise and superior knowledge of a particular field." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992).
The Board's determination does not offend the State or Federal Constitution nor any express or implied legislative policies. Moreover, the record of Bishop's chronic absenteeism is supported by substantial credible evidence in the record and there is no basis for our intervention.