July 23, 2010
IN THE MATTER OF ALFOLABI BABALOLA, JUVENILE DETENTION OFFICER (C2065D), COUNTY OF PASSAIC.
On appeal from the Civil Service Commission, Docket No. 2008-4691.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 6, 2010
Before Judges Lisa and Fuentes.
Appellant, Afolabi Babalola, appeals from the April 24, 2008 determination of the Merit System Board (Board) and the August 28, 2008 decision of the successor to the Board, the Civil Service Commission (Commission), denying appellant's request for reconsideration. These decisions upheld the removal of appellant's name by Passaic County from the eligible list for appointment as a juvenile detention officer based upon his failure to comply with the pre-appointment process. During the pendency of this appeal, we granted Passaic County's motion to supplement the record with information establishing that on April 1, 2009 Passaic County entered into a ten-year shared services agreement with Essex County, by which Essex County will house Passaic County's juvenile offenders. As a result, Passaic County closed its Youth Center in April 2009, laid off employees at that facility and eliminated their positions. Accordingly, the list from which appellant was removed is no longer operative. As a result, Passaic County and the Commission argue that the appeal should be dismissed as moot.
Our disposition of the appeal does not require a detailed recitation of the events leading up to appellant's removal from the eligibility list. The triggering event was appellant's refusal to sign a document entitled "Special Conditions of Employment." In its decision, the Board noted that an eligible's name may be removed from a list for sufficient reasons. N.J.A.C. 4A:4-4.7(a)1, N.J.A.C. 4A:4-6.1(a)9. The Board also noted that, subject to exceptions not applicable here, the appellant bears the burden of proof in disqualification appeals. N.J.A.C. 4A:4-6.3(b). The Board then made the following findings and reached the following conclusions regarding appellant's refusal to sign the special conditions of employment form:
In the instant situation, the Board is mindful that the Passaic County Juvenile Detention Center is a paramilitary organization and that following orders and compliance with policy are of tantamount importance to assure the safety, not only of Mr. Babalola, but also of his fellow officers and those in their custody. Mr. Babalola's refusal to sign what is essentially a basic acknowledgement of routine Juvenile Detention Center policy, including such common sense areas as showing up for work on time for work and in uniform, working one's assigned shift, being subject to mandatory overtime, etc., would be considered insubordination had he completed the pre-employment process and actually started his employment, which would then have been subject to disciplinary action. The Board is not persuaded by Mr. Babalola's assertion that signing the form in question somehow violates the County's labor agreement. Even if such a contention were true, the Board has no jurisdiction over contractual matters which must be pursued via a union grievance procedure or the Public Employment Relations Commission. Moreover, nothing in the document appears to be in violation of Merit System law or rules, nor is it unreasonable for Passaic County to require new employees to sign such a document. Consequently, Mr. Babalola's refusal to comply with the pre-employment process provides a sufficient basis for the appointing authority to remove of [sic] his name from the list. Under these circumstances, in view of the position at issue, the Board grants the appointing authority's request to remove Mr. Babalola's name from the subject eligible list.
Appellant argues on appeal:
THE REQUIREMENT THAT THE APPELLANT SIGN THE "SPECIAL CONDITIONS OF EMPLOYMENT["] WAS ILLEGAL AND DISCRIMINATORY.
THE DECISION TO NOT REINSTATE AND NOT TO RECONSIDER THE INITIAL DECISION WAS AN ABUSE OF DISCRESSION [SIC] AND NOT SUPPORTED BY THE EVIDENCE.
THE APPELLANT SHOULD BE REINSTATED TO THE CIVIL SERVICE LIST AND THE MATTER SHOULD BE REMANDED FOR A DETERMINATION OF BACK PAY, SENIORITY, BENEFITS, ATTORNEY FEES AND DAMAGES.
THE APPEAL SHOULD NOT BE DISMISSED AS MOOT BECAUSE THERE ARE OTHER ISSUES TO BE DECIDED BY THE COURT.
The Board's decision is supported by substantial credible evidence in the record, R. 2:11-3(e)(1)(D), and appellant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Further, in light of the shared services agreement and the fact that the eligibility list from which appellant was removed is no longer operative, this appeal is subject to dismissal because it is moot. We nevertheless offer the following brief comments.
The scope of our review of the decision of an administrative agency is very limited. We will not interfere with the Board's decision unless it is arbitrary, capricious, or unreasonable, or it is not supported by substantial credible evidence in the record as a whole. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). The Board's decision here was based upon undisputed evidence establishing the relevant facts, and its decision is fully in conformity with the controlling legal principles. Accordingly, that decision is supported by substantial credible evidence and is reasonable. We therefore have no occasion to set it aside.
Appellant's basic contention on appeal is that he was singled out, based upon his race and Nigerian ancestry, to sign the Special Conditions of Employment form, and that the form, which was created after the applicable collective bargaining agreement had been entered into, was of necessity not authorized by and therefore in violation of that agreement. Appellant presented no evidence in the administrative proceeding to support these contentions. Passaic County has provided documentation establishing that the form has been used for many years, and that it has been revised from time to time, regardless of the date of any particular collective bargaining agreement. Whether the latest revision date postdated the then-current collective bargaining agreement is of no consequence.
The Board's finding that this was a routine form used for all applicants in appellant's position is well supported by the record.
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