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In the Matter of

March 23, 2011

IN THE MATTER OF CHRISTOPHER MCDONALD.


On appeal from the Waterfront Commission of New York Harbor, No. L-3690-W.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 5, 2012 --

Before Judges Parrillo, Grall and Hoffman.

Appellant Christopher McDonald appeals from the March 22, 2011 order of the Waterfront Commission of New York Harbor (Commission) denying his re-application for registration. For the following reasons, we affirm.

On December 3, 1996, McDonald filed an application to register as a maintenance man, a type of longshoreman, with the Commission, a bi-state corporate and politic entity created by compact between the States of New York and New Jersey, N.J.S.A. 32:23-1 to -225.*fn1 His employer at the time was American Maritime Service of New York, Inc. (AMS), who sponsored his application. For McDonald to work as a longshoreman, as his application so indicated, his name must be included on the longshoreman's register. N.J.S.A. 32:23-27.

In that regard, the Act empowers the Commission to issue licenses and registrations to those individuals applying to work on the waterfront. N.J.S.A. 32:23-86. The Commission may, in its discretion, deny licensure or registration as it deems in the public interest for certain misconduct, including the commission of "fraud, deceit or misrepresentation in connection with any application . . . submitted to or any interview . . . conducted by the Commission." N.J.S.A. 32:23-92(3). The Commission may also reject an applicant if his "presence at the piers or other waterfront terminals . . . constitute[s] a danger to the public peace or safety." N.J.S.A. 32:23-29(c). In addition, to maintain one's registration, the applicant cannot violate any other provisions of the Act, including the requirement that only registered longshoremen work as longshoremen on the waterfront. N.J.S.A. 32:23-27, -92(4).

As a result of his application, McDonald was issued a registration card and his name was included in the Register of the Commission. He commenced work as a Trailer Interchange Receipt (TIR) inspector in Port Newark and Port Elizabeth, responsible for inspecting containers and chassis entering the Port for damage. He remained there until July 2000, when he commenced working at the New York Container Terminal for Island Securing and Maintenance, Inc. (Island Securing), who assumed sponsorship of its new employee. Because his registration was active and his employment transition seamless, McDonald was not required to reapply to the Commission for registration.

That was not the case on February 19, 2010 when he resigned from Island Securing, contemplating a return to his old employer, AMS. Having been advised by McDonald of his voluntary resignation, Island Security informed the Commission that the company was withdrawing its sponsorship of McDonald for registration with the Commission as a maintenance man via letter dated February 19, 2010.

As a result of this notification, the Commission placed McDonald on inactive status because of his lack of employer sponsorship. Once a longshoreman is placed on inactive status, he is no longer able to work on the Waterfront until he obtains a new sponsor and reapplies for registration with the Commission. Consequently, on February 23, 2010, the Commission sent a letter to McDonald informing him that since his sponsorship had been withdrawn, he was required to return his registration card pursuant to N.J.S.A. 32:23-32. Claiming not to have received the letter until late that week because his infant son was in the hospital, McDonald reported to work at AMS on February 23, 2010, without being registered and subsequently mailed back his registration card.

On March 2, 2010, about a week after he commenced his new employment, McDonald went to the Commission office to deliver his sponsorship letter from AMS. At that time, he was advised that he needed to file a re-application for registration with the Commission, which he completed in the office that day. McDonald had wanted to fill out the twenty-two-page application at home because he did not have his employment file with him and might not be able to answer all questions from memory, but was instructed that he had to fill it out in the office.

In response to a question (#27) on the application inquiring into employment history, McDonald answered that he was unemployed from February 19, 2010 to the present, when in fact he was at the time employed by AMS, albeit by then he had only worked there one day due to his son's hospitalization. He also indicated in question #23 that his last date working on the waterfront terminal was February 19, 2010. Another question (#28) asked whether he had "ever been disciplined in any manner ([e.g.]: suspended, demoted, reprimanded, fined, penalized or terminated)[,]" to which McDonald responded "yes[,]" citing only one instance: "NYCT[,] do not remember date[,] missing damage on a container around 2004[,]" in reply to a further question asking for specific details.

On May 11, 2010, McDonald was called to appear before the Commission as part of the re-application process and was asked to produce all relevant employment documents, which he did when he attended the scheduled interview on May 19, 2010. At that time, he acknowledged working for AMS upon his resignation from Island Securing and explained the discrepancy in his answer to question #23 by claiming that at the time he was working in Woodbridge "off-pier[,]" which was outside the Commission's jurisdiction. However, a subsequent Commission investigation proved McDonald's representation wrong. A July 28, 2010 pier inspection by Commission investigators of AMS's waterfront facility in Elizabeth uncovered McDonald allegedly "hiding" in the women's bathroom. The investigation also confirmed that while working for AMS, McDonald had been assigned as a TIR inspector in Port Newark and a TIR inspector and chassis- counter/traffic coordinator in Elizabeth, but never in Woodbridge, as he had claimed during the interview.

The documents produced by McDonald belied his other claim to have been disciplined only once. During his ten-year tenure with Island Securing, McDonald had been cited a number of times for making faulty inspections, leaving work early ...


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