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In re Winters

September 28, 2010

IN THE MATTER OF STEVEN J. WINTERS, NORTH HUDSON REGIONAL FIRE AND RESCUE.


On appeal from a Final Administrative Decision of the New Jersey Civil Service Commission, No. 2007-2857.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 23, 2010

Before Judges Skillman, Fuentes and Gilroy.

Appellant Steven Winters appeals from the October 10, 2008 final decision of the Civil Service Commission (Commission) upholding his removal from the North Hudson Regional Fire and Rescue (NHRFR).*fn1 We affirm.

On November 30, 2006, the NHRFR served appellant with a ten-count Preliminary Notice of Disciplinary Action (PNDA) seeking to remove him from employment. The PNDA charged appellant with having committed various acts of misconduct relating to the agency's sick leave policy. After appellant failed to appear for an administrative hearing on the charges, the NHRFR served appellant with a Final Notice of Disciplinary Action (FNDA), sustaining the charges and removing him from employment, effective November 30, 2006.

On January 2, 2007, appellant appealed to the Merit System Board, Department of Personnel.*fn2 The Board transferred the matter to the Office of Administrative Law (OAL) as a contested case. The OAL hearing commenced on September 26, 2007, and continued over seven intermittent days when, before appellant began to present his case, the NHRFR filed a motion for partial summary decision on count four that charged appellant with having engaged in outside employment while on sick leave.

Appellant filed a cross-motion for partial summary decision on counts one and four.

On February 5, 2008, the Administrative Law Judge (ALJ) issued his initial decision and order determining that the NHRFR had sustained the charge on count four. The ALJ also recommended appellant's removal from employment.

On October 10, 2008, the Commission issued its final decision, adopting the ALJ's findings and conclusions, and upholding the sanction of removal. It is from this decision that appellant appeals.

I.

Appellant began his employment as a firefighter with Union City Fire Department in 1984. Following the creation of the NHRFR in 1999, appellant continued employment with the NHRFR rising to the rank of captain. In December 2005, as a result of disciplinary measures, appellant was suspended from employment for sixty days and demoted to the position of firefighter.*fn3

In June 2006, appellant sought sick leave from his employment. In support of his application, appellant submitted a certification from a psychiatrist indicating that appellant suffers from a panic disorder and was not able to work in the fire department for the next three to six months. Appellant began sick leave on June 13, 2006.

On June 12, 2006, appellant began work as a per diem electrical inspector/code enforcement officer for the Township of Old Bridge. Between June 12 and November 9, 2006, appellant worked 192.25 hours for the Township, earning $7,134.75.

Appellant also worked for the City of Long Branch from September through November 24, 2006, as a construction official. During his employment with the City, appellant worked at ...


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