OFFICE OF ADMINISTRATIVE LAW

State of New Jersey

INITIAL DECISION OAL DKT. NO. CSV 11781-06 AGENCY DKT. NO. 2007-2055-I IN THE MATTER OF JADWIGA WARWAS, CITY OF PLAINFIELD. ___________________________________ Stephen E. Klausner, Esq., for appellant David I. Minchello, Esq., for respondent (Ventantonio & Wildenhain, P.C., attorneys) Record Closed: October 29, 2007 BEFORE JAMES A. GERAGHTY, ALJ: Appellant Dr. Jadwiga Warwas appeals her removal as Health Officer by the City of Plainfield (“City” or Plainfield) effective September 11, 2006 for insubordination and conduct unbecoming a public employee because she worked part time for the City of Paterson from home disseminating health-related information at a computer while restricted to home on extended sick leave from Plainfield. She appealed to the Merit System Board which transmitted the matter to the Office of Administrative Law (“OAL”) on December 19, 2006. After three scheduled unsuccessful settlement conferences from January through March 2007, the matter was set down for hearings on September 27 and October 2, 2007. Counsel for the City requested an adjournment which appellant opposed. The motion was denied and a hearing was held September 27, 2007. The City presented one witness, Ms. Karen Dabney, City Personnel Director. Dr. Warwas testified on her own behalf. The parties submitted post-hearing briefs, the last of which was received by the OAL on October 29, 2007, the day on which the record closed. STATEMENT OF THE ISSUES Decided: December 12, 2007

New Jersey is an Equal Opportunity Employer

OAL DKT. NO. CSV 11781-06

The issue is whether appellant committed misconduct as City Health Officer which warranted removal. FACTUAL BACKGROUND The testimony and documentary evidence of record, establishes the following uncontested FACTS: Jadwiga Warwas, M.D. is a licensed physician who was hired by the City of Plainfield as Health Officer on October 1, 2003. Her tenure with Plainfield has been tumultuous. A subordinate accused her of harassment for shouting at her. A municipal court dismissed the charges. Daniel Williamson, Esq., the private prosecutor in the case, became Plainfield Corporation Counsel who, along with City Administrator Carlton McGee, brought two minor disciplinary actions against her, appeals from which are pending. In addition, Dr. Warwas is a party defendant in a discrimination case against the City pending in Superior Court brought by the Chief Sanitarian. So too, Dr. Warwas figures as a witness in a lay off challenge by three fomer Health Department employees pending at the OAL. Due to stress from these contentious matters, Dr. Warwas developed peptic ulcers and clinical depression which resulted in her taking sick leave from July 25, 2006 through September 8, 2006. Her attending physician certified on five occasions through September 2006 that Dr. Warwas, due to a personal health problem, “was restricted to home and could not work/attend school.” (Exhibit R-1). The City granted her leave pursuant to the Family Medical Leave Act. At the time, Dr. Warwas had accrued 364 hours of sick leave and 243 hours of vacation time from which the City debited 185.5 sick hours. (Exhibit R-2). The City received an anonymous message that, while on sick leave, Dr. Warwas was working part time for the City of Paterson. The City requested the City of Paterson to disclose public records verifying whether and to what extent Dr. Warwas worked for the City of Paterson from July 24, 2006 to August 29, 2006. (Exhibit R-3). The City of Paterson responded under cover of a letter dated December 13, 2006 revealing that on

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OAL DKT. NO. CSV 11781-06 different occasions during that time, appellant worked as a Quality Assurance Coordinator from one to six and a half hours on different days for a total of 109 hours. (Exhibit R-4). The response indicated that she originally had been hired September 15, 2003. As part of the investigation, Catherine Correa, Director of the Paterson Department of Human Services, on October 3, 2006, issued a “To Whom It May Concern” letter stating : As the immediate Supervisor of Dr. Jadwiga Warwas, M.D., I hereby certify that her duties and assignments with my Division has (sic) not required her presence in the office in Paterson. A great deal of work requires the collection and electronic submission of HIV/AIDS information which is transmitted electronically from her home. In reference to the enclosed Attachment C, please be advised that Dr. Warwas was not working from the Ryan White Title One Paterson Office. (Exhibit R-5). By Preliminary Notice dated September 14, 2006, the City charged appellant with insubordination and conduct unbecoming a public employee by having “. . . reported to work for the City of Paterson . . . [although she] worked various hours (in the position of Quality Assurance Coordinator) from 7/24/06 to 8/29/06, even though (per her health certificates) she ‘was restricted to home and could not work/attend school’” while receiving sick pay compensation from the City. (Exhibit P-1). The City conducted a disciplinary action hearing on September 30, 2006 at which Corporate Counsel Williamson represented the City. Hearing Officer Martin Hellwig, Director of Public Safety, found that the City sustained the charges against Dr. Warwas and recommended her termination.1 On October 23, 2006, the City issued a Final Notice of Disciplinary Action ordering Dr. Warwas’ removal. OAL HEARING

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Respondent’s September 26, 2007 post hearing brief Exhibit H.

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OAL DKT. NO. CSV 11781-06 City Personnel Director Karen Dabney testified at the OAL hearing that the Plainfield Municipal Code proscribes outside employment without prior approval upon written application. Plainfield Municipal Code Section 11:11-2 (Exhibit R-6). When Dr. Warwas was hired in 2003, the City Employee Handbook similarly proscribed outside employment without prior approval citing the Municipal Code. (Exhibit R-7). However, the Employee Handbook was amended March 15, 2004 and stated, as to Conflicts of Interest: Employees are allowed to hold outside employment as long as it does not interfere with their City job responsibilities. Employees are prohibited from engaging in outside employment activities while on the job or using City time, supplies or equipment in the outside employment activities. The Department Director with the authorization of the City Administrator may request employees to restrict outside employment if the quality of the employee’s work diminishes. (Emphasis added) (Exhibit P-2). The manual states that it may be amended or supplemented without notice at the discretion of the City. It also states that, if in conflict with the Municipal Code, a union contract, or a State statute or regulation, the latter prevails. Dr. Warwas testified that when she was hired she submitted a resume that disclosed her part-time work for the City of Paterson. She explained that the work entailed compiling and disseminating medical information regarding infectious diseases to Paterson officials and residents. She did the work on weekends and evenings on her own time. The City officials who conducted the interview offered her the Health Officer position without requiring her to abandon work as Quality Assurance Coordinator. For some unexplained reason, this resume was neither in Dr. Warwas’ personnel file nor produced in discovery. It is undisputed that Dr. Warwas did not submit a formal written request to continue this part-time work before commencing sick leave in July 2006. She testified that she did not understand that there was such a requirement given the fact that the resume itself constituted written disclosure. At the

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OAL DKT. NO. CSV 11781-06 OAL hearing, in response to a question from the tribunal, Ms. Dabney candidly and credibly testified that if Dr. Warwas had submitted a written request for permission to continue working as a Quality Assurance Coordinator from her home while on sick leave, permission probably would have been granted. Ronald A. West, the Plainfield Director of Finance and Administration, submitted a “To Whom It May Concern” letter dated October 31, 2006 in the nature of a character reference for Dr. Warwas. He praised her for addressing certain health issues in the community and for liaising with local and State officials concerning bioterrorism. (Exhibit P-5). It is noteworthy that the Plainfield Municipal Code states that outside employment requests shall not be approved if: (1) it will interfere with an employee’s position through a conflict of interest or (2) it shall exceed twenty hours per week. Plainfield Municipal Code Section 11:11-2(c). The City never averred that Dr. Warwas’ part-time work for the City of Paterson would have been either excessive or likely to interfere with her performance as Health Official. The City argues, that assuming arguendo appellant committed misconduct, removal is appropriate because she had been subject to prior disciplinary action. Before taking extended sick leave, Dr. Warwas went on vacation from June 19, 2006 until July 7, 2006. The contention is that she failed to designate an Acting Health Officer during her absence. On July 6, 2006, City Administrator Carlton McGee issued Dr. Warwas a Notice of Disciplinary Action charging her with neglect of duty. The sanction entailed minor discipline, a five-day suspension without pay. (Exhibit R-8). Dr. Warwas met with the City Administrator and Corporation Counsel Williamson during which they agreed to withdraw the suspension if Dr. Warwas would resign. The City understood her to have acquiesced. Dr. Warwas explained that she had consulted with counsel and decided to defend against the suspension. Apparently, Dr. Warwas worked without pay on the days she would have been suspended. Considering her “non-compliance” with the suspension to constitute insubordination, the City again disciplined her by imposing an additional three-day suspension. (Exhibit R-9; Collective R-10). These matters are pending at the Merit System Board. At the OAL hearing in the current matter, Dr. Warwas authenticated a memo she sent to Mr. McGee on May 15, 2006 alerting him that Mr. Randy Moscaritolo, Senior Registered

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OAL DKT. NO. CSV 11781-06 Environmental Health Specialist, would replace her during her vacation as he had the previous year. (Exhibit P-3). FINDINGS OF FACT Based on the testimony and documentary evidence of record, I FIND: 1. Dr. Jadwiga Warwas disclosed her part-time position as a Quality Assurance Coordinator with the City of Paterson in writing on her resume during her interview for the position of Health Officer with Plainfield. No City official objected to her continuing this employment or required her to abandon it as a condition of employment with the City. 2. Dr. Warwas was approved for sick leave by the City from July 24, 2006 until September 8, 2006 based on certificates from a physician, Dr. Eugene M. DeSimone, that due to personal health problems she is restricted to home. 3. From July 25, 2006 until September 8, 2006 Dr. Warwas remained home on sick leave at full pay, utilizing sick and vacation time to which she was entitled. During this time, she continued to work part time for the City of Paterson as Quality Assurance Coordinator for 109 paid hours. This work entailed transmitting information on the internet from a computer at home. At no time did she work from any office of the Department of Human Services in Paterson, or elsewhere on behalf of the City of Paterson. 4. Dr. Warwas’ work as a Quality Assurance Coordinator for the City of Paterson was not on City time nor in any way concealed. In effect, she complied with what was essentially home confinement contrary to the Preliminary Notice of Disciplinary Action specification. The March 15, 2004 City Employee Handbook, in effect at the time of appellant’s sick leave, expressly authorizes non-conflicting outside employment provided the employee is not on the job using City time. Appellant engaged in outside employment on her own unused sick or vacation time for which she was charged during her sick leave. LEGAL AUTHORITY AND ANALYSIS

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OAL DKT. NO. CSV 11781-06

The Civil Service Act and implementing regulations govern the rights and obligations of certain State employees. N.J.S.A. 11A:1-1, et seq.; N.J.A.C. 4A:1-1.1, et seq. In disciplinary matters, the Appointing Authority has the burden of proof. N.J.A.C. 4A:2-1.4. Major discipline includes fine or suspension for more than five working days or removal. Id. at section 2-2.2. Insubordination and conduct unbecoming a public employee are grounds for discipline. Id. at section 2-2.3. An appellant has the right to de novo review of final disciplinary action. Cliff v. Morris County Bd. Of Soc. Servs., 197 N.J. Super 307 (App. Div. 1984) rev’d in part 101 N.J. 251 (1985) The City of Plainfield Municipal Code requires employees to apply for approval to engage in outside employment. The Employee Handbook in effect when Dr. Warwas was hired tracked the Code. However, the Handbook was amended within a year to delete the requirement that an employee make a written application so long as the outside work does not interfere with the employee’s City responsibilities. Therefore, Dr. Warwas did not in any sense fail to comply with the Employee Handbook by not submitting a written application for permission to do what she had already disclosed in 2003. Moreover, the City Personnel Director quite reasonably testified that had Dr. Warwas submitted a written application, it would have been granted. Indeed, there is nothing about Dr. Warwas’ work from home, not in Paterson, at a computer on her own vacation and sick time that violated any rule or regulation governing her employment. As the Code requirement for written authorization was not amended at the time the revised Employee Handbook was adopted, and therefore arguably superseded the Handbook to the extent in conflict, suffice it to say that the issue is not whether Dr. Warwas violated the Municipal Code by neglecting to apply for “continued approval” of her outside employment, but rather whether her failure to do so constituted misconduct. Since, as she testified, she was unaware of the requirement or, more to the point, that it prevailed over the amended Employee Handbook, Dr. Warwas could not have had the requisite mens rea for misconduct. In other words, Dr. Warwas’ violation, such as it might have been, was not knowing and willful. To the contrary, as she disclosed her part-time employment in her resume in 2003, she assumed that nothing more was required of her.2
Since the tribunal accepts Dr. Warwas’ testimony that her resume disclosed the outside employment, there is no need to reach the spoliation argument raised by appellant’s counsel which, if appropriate,
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OAL DKT. NO. CSV 11781-06

Since the tribunal finds that appellant committed no misconduct in this matter, there is no need to consider the question of prior misconduct. CONCLUSIONS Based on the foregoing findings of fact and legal authority, I CONCLUDE that Dr. Jadwiga Warwas was neither insubordinate nor guilty of conduct unbecoming a public official while working part time as Quality Assurance Coordinator for the City of Paterson from July 24, 2006 through September 29, 2006 while on sick leave as Health Officer in the City of Plainfield. committed no misconduct. DISPOSITION AND ORDER Based on the foregoing findings of fact and conclusions of law, I DECIDE this matter in favor of appellant and ORDER that the charges against her be DISMISSED and that appellant be reinstated to her position as Health Officer with full back pay, benefits, pension rights, and attorney’s fees. I hereby FILE my initial decision with the MERIT SYSTEM BOARD for consideration. This recommended decision may be adopted, modified or rejected by the MERIT SYSTEM BOARD, which by law is authorized to make a final decision in this matter. If the Merit System Board does not adopt, modify or reject this decision within forty-five days and unless such time limit is otherwise extended, this recommended decision shall become a final decision in accordance with N.J.S.A. 52:14B-10. Accordingly, I further CONCLUDE that appellant

would require the tribunal to entertain an adverse inference that the disappearance of the resume from Dr. Warwas’ personnel file warrants the inference that it contained the disclosure. Instead, the tribunal finds her testimony sufficient.

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OAL DKT. NO. CSV 11781-06 Within thirteen days from the date on which this recommended decision was mailed to the parties, any party may file written exceptions with the DIRECTOR, MERIT SYSTEM PRACTICES AND LABOR RELATIONS, UNIT H, DEPARTMENT OF PERSONNEL, 44 South Clinton Avenue, PO Box 312, Trenton, New Jersey 086250312, marked "Attention: Exceptions." A copy of any exceptions must be sent to the judge and to the other parties.

DATE Date Received at Agency:

JAMES A. GERAGHTY, ALJ

Mailed to Parties:

DATE pb/tbj

OFFICE OF ADMINISTRATIVE LAW

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