On appeal from the Merit System Board, Department of Personnel, Docket Nos. 2002-4692 and 2004-1226.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Sapp-Peterson, and Alvarez.
Petitioner Anthony D'Altrui appeals a Merit System Board (MSB or the Board) December 21, 2007 final decision removing him from the position of Construction Official with the Borough of Sayreville. We affirm.
On April 16, 2002, petitioner was suspended indefinitely pursuant to a preliminary notice of disciplinary action. That same day, petitioner was arrested and charged with various criminal offenses. The charges and the suspension stemmed from the same allegations, namely, that for years, petitioner had falsified payroll records for the sub-code officials under his supervision. The Borough issued a final notice of disciplinary action after a departmental hearing on June 5, 2002, affirming the indefinite suspension. The grand jury declined to indict petitioner.
On March 23, 2003, the Borough served petitioner with a second preliminary notice of disciplinary action, charging him with neglect of duty, conduct unbecoming a public employee, and other cause. Following another departmental hearing, he was served with a final notice of disciplinary action sustaining the charge of conduct unbecoming a public employee. He was removed from his position effective September 9, 2003.
Petitioner appealed the suspension and the removal separately. The matters were transmitted to the Office of Administrative Law (OAL) and consolidated for disposition. On October 10, 2007, the Administrative Law judge (ALJ) issued a written opinion finding that the Borough had established that petitioner was guilty of conduct unbecoming a public employee by a preponderance of competent and credible evidence. The ALJ recommended that petitioner's removal be affirmed. On December 21, 2007, the Board affirmed the decision despite petitioner's filed exceptions. This appeal followed.
Petitioner was initially employed by the Borough in February 1994 as a temporary electrical inspector. Approximately a month later, he was hired as the permanent electrical sub-code official by the Borough construction official, Edward Jasinowski. Jasinowski told petitioner that he would be compensated for nineteen hours of work weekly, but did not explain how those nineteen hours would be structured. He did indicate that the general practice was for on-site inspections to be performed on Tuesdays and Thursdays.
Petitioner was selected to replace Jasinowski when in April 1997, Jasinowski was terminated for leaving work early to tend to personal matters, performing inspections improperly, and "questionable operations in the office." Soon after, the Borough increased the weekly hours for construction department employees from nineteen to twenty-one.
Shortly after petitioner became the construction official, the Borough issued an employee handbook, which required all employees to accurately record all hours worked. It also specified that the mayor, council, and the relevant union president must formally approve any deviations from the handbook's policies and procedures as to any employee.
When petitioner hired the three sub-code officials, he instructed them that they had to be present for work on Tuesdays and Thursdays, and that "administrative things" could be performed in the office or off-site. He also told them that they would not be compensated for more than twenty-one hours per week.
At the OAL hearing, petitioner testified that occasionally construction office personnel worked more than twenty-one hours per week. He perceived this to be a benefit to the municipality because the employees, himself included, never sought additional compensation. His perspective was that weeks in which they worked more than twenty-one hours were offset by weeks in which they worked fewer than twenty-one hours. There were no records maintained, however, as to any excess hours worked by petitioner or the three sub-code officials.
The union that includes Borough sub-code officials, the American Federation of State, County and Municipal Employees (AFSCME), had previously entered into a labor agreement with the Borough that required part-time employees to be paid by the hour. It also places a ceiling on the number of hours that could be worked by a part-time employee before he or she was considered a full-time employee and paid full-time benefits.
The Borough's business administrator, Joseph D'Arco, who served in that capacity until September 2000, testified that although petitioner had the authority to modify the weekly schedule, he was not permitted to modify the union contract or deviate from handbook procedures absent prior ...