New Jersey Civil Service Commission Not Afraid to Call B.S. on Employers

In my last post I wrote about the Appellate Division case of In the Matter of Ambroise, which demonstrated that employees will get a fair hearing before the New Jersey Civil Service Commission and in appeals to state appellate Courts.  Another recent Appellate Division opinion in the case of In the Matter of Christopher Dunlap, Fire Fighter (M1838W), Township of Hillside shows that the Civil Service Commission and Appellate Division are not afraid to call B.S. on employers when the situation warrants.

 

Background

Christopher Dunlap passed the civil service examination for firefighter, and his name was placed on the eligible list.  His name was certified for employment with Hillside Township.  He completed the application process, but was rejected by the Township for allegedly making a “material misrepresentation” on his application.  Making any “material misrepresentation” in the hiring process will cause an applicant to be removed from the eligible list.  The Township said that he failed to disclose juvenile charges against him.  Facts are everything, so I will quote at length from the Appellate Division’s decision.

Dunlap completed the Township’s application for employment form, including question two in the “Arrests, Summonses, Criminal History” section. The question asked, “Have you ever been arrested for or charged with juvenile delinquency?” Dunlap answered “yes.” When next asked to “complete details with dates, age at time of offense, violation type, location, and disposition,” he answered, “October 30, 2006, 17 years old, possession of weapon for unlawful purpose, Hillside High School, Community Service, DNA testing ordered.” Question three asked “Have you ever been arrested for, indicted for, or convicted of any violation of the criminal law?” Dunlap answered “yes.” In response to a request for “complete details with dates, age at time of offense, violation type, location, and disposition,” Dunlap answered, “juvenile arrest reference answer to number 2.”

Question nine stated “Use the space below to provide us with any other related information.” Dunlap replied:

#2 Continued: Fingerprinting ordered, write a letter and forfeit weapon.

On Monday October 30, 2006, my pocket knife, which I use on the weekends to help my uncle open boxes on his trucking route, fell out of my pocket. The security guard by the name of Melvin witnessed the knife fall and his response was “come on let’s go to the office, you are getting in trouble”. Being as though school was already let out I was attempting to leave the building. Melvin tried to detain me with the help of detective Wilson. I was pinned to the ground and hand cuffed. It was an honest mistake, I forgot it was still in my pocket, it was not a regular occurrence for me to carry a knife. Although it was classified as a weapon my reasons for carrying a pocket knife was never supported by thoughts of trying to cause harm or violence to anyone. As a child who had just lost his mother and no father present working on the weekends with my uncle was very imperative to my survival. Trying to juggle being an employee, a student, and an athlete it slipped my mind and I truly forgot it was in my pocket.

Upon further investigation, Hillside Township learned the high school incident led to Dunlap’s being charged with the following offenses: resisting arrest; possession of a weapon in an educational institution; aggravated assault; and possession of a weapon for an unlawful purpose. Ultimately, the other charges were dismissed, and Dunlap’s juvenile record reflects only the possession of a weapon for an unlawful purpose disposition.

The Township, acting in its capacity as appointing authority, removed Dunlap from the list of eligible candidates, finding that by omitting the dismissed charges, he made a false statement of material fact in his employment application.

 

Dunlop’s Appeal to the New Jersey Civil Service Commission

Dunlop appealed his removal from the eligible list, which resulted in his failure to be hired, to the New Jersey Civil Service Commission.  The Commission made short work of the Township’s argument that Dunlop had his anything.

[Dunlap] argued the incident happened almost fifteen years prior to his application, and he pointed out the additional charges filed against him were dismissed. After reviewing the record, the CSC made findings and concluded the Township failed to demonstrate Dunlap made a false statement of material fact in his application. The CSC found Dunlap’s answers to questions two and three on the employment application supplied information sufficient to enable the Township to “properly complete its background investigation.” While the police report contained additional information not in Dunlap’s application, the Township was able to obtain the report based on the information he provided. Hence, the CSC was not persuaded on the record before it that Dunlap made a materially false statement in his employment application.

The CSC also found the incident, which took place when Dunlap was a juvenile, to be an isolated one. Finding Dunlap had not been involved in any other criminal incidents, the CSC concluded the incident was sufficiently remote in time to declare him rehabilitated.

The CSC issued a final decision, reversing the Township’s removal of Dunlap from the list. The CSC ordered that the firefighter’s list be revived, and Dunlap’s name be “certified at the time of the next certification for prospective employment opportunities only.”

The Township appealed the Civil Service Commission’s opinion to the Appellate Division of the Superior Court of New Jersey, which hears appeals from New Jersey’s administrative agencies such as the Civil Service Commission.

 

The Appellate Division’s Decision

The Appellate Division likewise made short work of the Township’s arguments.  It first explained that although appellate courts will defer to agency determinations unless they are arbitrary, capricious, lack support in the evidentiary record, or make mistakes of law, the party challenging the Civil Service Commission’s decision bears the burden of proving this.  It held that the Township had not bet its burden of proof, and therefore it affirmed the Civil Service Commission’s decision.  The court explained:

The Township contends the core question is whether Dunlap withheld information material to the position he sought to obtain. In support of its position that he did so, the Township maintains Dunlap “made a false statement of material fact on his employment application when he failed to disclose his juvenile arrest….” The Township further posits Dunlap was responsible for providing “full and accurate information” in the application, and that it, as the appointing authority, is not responsible for adding missing details concerning respondent’s criminal history. We are not persuaded, substantially for the reasons set forth in the CSC’s final decision. We add the following brief comments.

[New Jersey civil service law] permits the removal of an eligible person from an employment list when that individual “has made a false statement of any material fact or attempted any deception or fraud in any part of the selection or appointment process,” or for “other sufficient reasons,”

The CSC relied on Dunlap’s answers in questions number two and three, as well as his incident narrative in the application. The record shows his answers were sufficiently detailed, including the date and location of the incident, his age at the time, and his juvenile disposition. The CSC found Dunlap’s omissions were not material, as respondent had disclosed sufficient information for the Township to properly complete its background investigation.

We cannot conclude the CSC’s final decision lacks fair support in the record.  Consequently, we defer to the agency.  The Township failed to meet its burden of showing the CSC’s decision to be arbitrary, capricious, or unreasonable.

(Citations omitted.)

 

The Takeaway

This case was an obvious overreach by the Township.  Dunlap clearly gave sufficient information about his charges, probably much more than most candidates.  Indeed, an applicant who worked his way through high school after his mother had died and his father left is clearly the type of person we want as a public servant in New Jersey.  The Township’s argument that he misrepresented what happened was really nonsense, and it was heartening that the Civil Service Commission and Appellate Division were willing to call the Township out for it, albeit in gentle, legal terms.

The bottom line is that this case, combined with the Ambroise case, demonstrate that government employees will get a fair hearing before New Jersey’s Civil Service Commission and appellate courts.

 

Contact Us

At McLaughlin & Nardi, LLC, we take pride in representing government employees in all aspects of New Jersey employment law, including civil service appeals.  Call us at (973) 890-0004 or fill out the contact form on this page to schedule a consultation with one of our New Jersey civil service attorneys.  We can help.