Beruflich Dokumente
Kultur Dokumente
INITIAL DECISION
OAL DKT. NO. CSV 11781-06
AGENCY DKT. NO. 2007-2055-I
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.
The issue is whether appellant committed misconduct as City Health Officer which
warranted removal.
FACTUAL BACKGROUND
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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(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
1
Respondent’s September 26, 2007 post hearing brief Exhibit H.
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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:
(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 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.
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Environmental Health Specialist, would replace her during her vacation as he had the
previous year. (Exhibit P-3).
FINDINGS OF FACT
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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
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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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. Accordingly, I further CONCLUDE that appellant
committed no misconduct.
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.
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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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 08625-
0312, marked "Attention: Exceptions." A copy of any exceptions must be sent to the
judge and to the other parties.
Mailed to Parties: