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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...