APRIL SCOTT, CSC Docket No. 2018-3672, 2018-3673

BackgroundApril Scott requests reconsideration of the attached final decision, rendered on April 4, 2018, which upheld her removal from the eligible lists for Police Officer (S9999R), City of East Orange (East Orange) and Police Officer (S9999R), Bloomfield Township (Bloomfield), on the basis of an unsatisfactory criminal background.

By way of background, the petitioner’s name was certified to East Orange on February 2, 2016 (0L160095) and to Bloomfield on April 27. 2016 (0L160513). In disposing of the February 2, 2016 certification, East Orange requested the removal of the petitioners name due to an_ unsatisfactory criminal background, unsatisfactory driving record, and a negative credit history. Specifically, East Orange submitted a background report detailing November 19, 2003 and May 8, 2006 arrests; three Temporary Restraining Orders (TROs) filed against the petitioner in 2011; responses to calls at the petitioner's residence by the Bloomfield Police Department; her financial history; and her involvement in seven motor vehicle accidents. In disposing of the April 27. 2016 certification, Bloomfield requested the petitioner’s removal on the basis of an unsatisfactory criminal record. In support, Bloomfield submitted a New Jersey State Police Fingerprint Identification System Automated Applicant Record dated August 19. 2015, which detailed the petitioner's November 19, 2003 arrest.

With regard to the petitioner’s criminal background. both East Orange and Bloomfield asserted that the petitioner was arrested at age 22 on November 19, 2003 and charged with two offenses under the New Jersey Code of Criminal Justice, which were diverted through the Pre-Trial Intervention (PTI) Program in July 2004. The charges from that incident were ultimately dismissed on August 12, 2005 and the records from that arrest were expunged in March 2009. East Orange also indicated that in May 2006, the petitioner, then aged 25, was charged with simple assault, in violation of N.J.S.A. 2C:12-1A and endangering the welfare of children, in violation of N.J.S.A. 2C:24-4A. East Orange submitted that on July 9, 2007, the petitioner pled guilty to the simple assault charge and was sentenced to time served and assessed a $45.00 fine. In its previous decision, the Civil Service Commission (Commission) found that the totality of the circumstances. including the petitioner’s background and driving record, supported her removal from the subject eligible lists.

Appellant's argumentIn her request for reconsideration, the petitioner argues that when the Commission rendered its April 4, 2018 decision, it failed to recognize that East Orange and Bloomfield failed to comply with Civil Service law and rules and that each appointing authority presented inaccurate information about her background and driving records. At the outset, she argues that the Commission overlooked Bloomfield’s failure to submit proper supporting documentation when disposing of the April 27, 2016 certification and East Orange's failure to provide her with the documentation it relied upon to support its list removal request until March 15, 2017. She contends that these issues should have led the Commission to restore her name to the subject eligible list or record her name as bypassed on the certifications, rather than removed.

With regard to her background, she contends that both appointing authorities failed to properly consider the circumstances surrounding her arrests when requesting her removal from the subject eligible list, as required under Civil Service law, rules and case law. She maintains that the statement in the Certification Disposition Notice from the February 2, 2016 certification that her name was removed from the list by East Orange “due to a record of arrests and/or convictions which relates adversely to this position” (emphasis added) evidences this issue, as it is “not a factual statement,” because she only has a single conviction for a disorderly persons offense. In addition, she argues that the Commission should not have treated her 2003 and 2006 arrests as part of a pattern. Rather, she maintains that because the 2003 charges were dismissed and expunged, her 2006 simple assault conviction should be considered an isolated incident. Further, she provides an explanation for her 2006 guilty plea which is identical to the statement she submitted to the Commission prior to its April 4, 2018 decision.

In addition, she contends that East Orange presented misleading information about five police reports and about three TROs.! Specifically. she submits that the

1 The petitioner also complains that the Commission failed to acknowledge the dismissal of these three TROQs in its initial decision. However, the Commission notes that in its April 4, 2018 decision, five police reports that East Orange utilized did not involve matters where she was accused of wrongdoing. Rather, they included calls for medical assistance for her children and a call complaining about her neighbors. She also noted it included mention of a report in which she was identified as a witness to a dispute and a harassment complaint she filed against her landlord. As to the TROs, she emphasizes that no final restraining orders (FRO) were issued against her. Moreover, with regard to the FRO she had against her children’s father, she argues that Bloomfield failed to indicate how it warranted her removal from the subject eligible list.

She also complains that the Commission failed to acknowledge misleading statements in East Orange's responses to her appeal, including claims that she pled guilty to child endangerment, had interactions with police in multiple disputes, and that the Department of Children and Families, Division of Child Protection and Permanency came to her home because of contact from the East Orange Police Department. Additionally, she maintains that Bloomfield’s statement in its background report that she was convicted of aggravated assault and endangering the welfare of a child in 2003 was erroneous. She also argues that the criminal history report that Bloomfield submitted was misleading because it contained information about three other people with criminal records. She further contends that both Bloomfield and East Orange failed to acknowledge the expungement of her 2003 arrest and the return of her children to her custody as evidence of her rehabilitation. Moreover, the petitioner cites, in part, the Commission's decision in In the Matter of Keith Hernandez (CSC, decided March 9, 2017), to argue that the 11 years since her last conviction and the 12 years since her last arrest were so remote in time as to warrant her restoration to the subject eligible list.

Additionally, the petitioner contends that her driving record did not provide an adequate basis to remove her name from the subject eligible list, particularly as the subject Certification Disposition Notices did not indicate that it was a basis for her removal and neither East Orange nor Bloomfield mentioned her driving record in their initial responses to her appeals. She also asserts that neither East Orange nor Bloomfield provided supporting documentation for each “non-certified” driver's abstract and that there are “questionable items” on those driver's abstracts. She contends that East Orange failed to detail how her “extensive vehicular accident history” supported her removal, as it did not provide detailed information about any accident or explain why it supported her removal, as she did not receive any moving violations from these accidents. She notes that the two accident reports she furnished to the Commission indicated that the other drivers fled the scene and she was not cited for any moving violations. Further, she maintains that East Orange’s use of her accident history to remove her name from the subject eligible list without providing accident reports is “prejudicial.” She alleges that Bloomfield failed to eee the Commission stated that the petitioner's “record includes three TROs filed against her by her children’s former babysitter in 2011, which were eventually dismissed” (emphasis added).

submit all required documentation regarding her driving record when it disposed of the subject certification and that it is only relying upon her driving record as a basis to support her removal from the subject eligible list in “retaliation” for her pointing out the above-noted errors in its background report. She also contends that Bloomfield erroneously indicated in its background report that she received summonses for careless driving in 2007 and for failure to obey traffic control signals in 2008 and that the notation about her involvement in five accidents in 2005 is misleading, as she was not at fault for these accidents and she did not receive a summons for any of them.

The petitioner also argues that a comparison of her background and driving records to other public employees demonstrates that Bloomfield and East Orange are “prejudice[ed]” and accord “preferential treatment” in their decision making? and unfairly removed her name from the eligible list. In this regard, she submits that Bloomfield continued to employ a Police Officer after it settled a civil lawsuit in which it was alleged that the Police Officer assaulted an individual during a 2013 traffic stop and she cites the Commission's decision In the Matter of Tameika Dwyer, (CSC, decided February 4, 2015) as proof that East Orange has allowed Police Officers to continue to work even after a driver's license suspension. Further, she asserts that both East Orange and Bloomfield continued to employ a municipal court judge after a 2016 arrest for driving while intoxicated and a 2018 judicial conduct complaint.’

Further, she takes issue with the Commission noting in its initial decision that she was bypassed on the July 24, 2015 certification (OL150912) from the Police Officer (S9999R), Bloomfield eligible list because she maintains that she was not “properly notified” that she was bypassed when Bloomfield disposed of that certification and “wasn’t given the chance” to appeal that action.! The petitioner

* The petitioner does not elaborate as to how Bloomfield and East Orange are prejudiced or to whom they accord preferential treatment.

4 The petitioner also argues that her removal from the subject eligible lists was not warranted because the City of Newark continued to employ a Police Officer who was subject to three arrests and two TROs within a two-year timeframe. However. hecause such a comparison does not demonstrate any impropriety in East Orange or Bloomfield’s hiring practices, this argument will not be addressed further.

' Concerning Bloomfield’s bypass of the petitioner when disposing of the July 24, 2015 certification, the Commission notes that the bypass is considered a separate matter and the petitioner would have been required to file an appeal within 20 days of when she was notified of her bypass. See NuJ/.A.C. 4A:2-1.1. Although the petitioner does not specify when she jJearned of her bypass, it is noted that in her submission to the Commission dated July 21, 2017. she argued that that Bloomfield’s decision not to remove her when disposing of the July 24, 2015 certification showed that the subsequent removal of her name from the subject eligible list with the disposition of the April 27, 2016 certification was unwarranted. Further, it is noted that she did not contest her bypass in the foregoing submission. Accordingly, because there is no record of the petitioner appealing her bypass after she learned of that action, her arguments concerning this bypass are untimely.

also argues that the Commission should not have considered her employment record because neither East Orange nor Bloomfield cited her employment record as a basis for removing her from the subject eligible list. Furthermore. she contests that the Commission’s characterization of her employment record as “mixed” because she argues that she would not have been hired as Family Service Worker if that had been true.

BackgroundDespite an opportunity to do so, neither Bloomfield nor East Orange submitted any arguments or documentation in response to the instant request for reconsideration.

CONCLUSION

RuleN.J.A.C. 4A:2-1.6(b) sets forth the standards by which a prior decision may be reconsidered. This rule provides that a party must show that a clear material error has occurred or present new evidence or additional information not presented at the original proceeding which would change the outcome of the case and the reasons that such evidence was not presented at the original proceeding.

AnalysisThe instant request for reconsideration is based on the assertion that a clear material error has occurred which would change the outcome of the case. However, a review of the record in this matter reveals that reconsideration is not justified. Initially, the petitioner has not demonstrated that Bloomfield’s and East Orange's handling of supporting documentation supports reconsideration in this matter. Initially, it is noted that Civil Service rules provide that list removal request “may be denied” if an appointing authority fails to provide an eligible or a Commission representative with copies of all documents and arguments it used as the basis for its request. N.d.A.C. 4A:4-4.7(b) (emphasis added). As such, the Commission has the discretion to determine whether any failure to comply with this requirement merits the denial of an appointing authority's list removal request. Here, the petitioner had an adequate opportunity to address the arguments and documentation Bloomfield submitted in response to her appeal, including a letter from its background investigator detailing the reasons for its list removal request, a criminal history record and a certified driver’s abstract. Further, the petitioner has failed to indicate how any delay in East Orange’s responses to her appeal unfairly prejudiced her, as she was provided the documentation and given an opportunity to respond prior to the Commission rendering its decision on her appeal. Accordingly, the petitioner has failed to meet her burden of proof with respect to these issues.

Further, the petitioner has failed to demonstrate that a material error occurred with the Commission’s consideration of her background and driving records. At the outset, the above-noted language in the Certification Disposition Notice did not impact the Commission’s independent review of the petitioner's record and it notes that for reasons of economy and efficiency, the same language is used on Certification Disposition Notices issued to eligibles who are removed for an unsatisfactory criminal record, regardless of whether the eligible has one or more arrests and/or one or more convictions. As such, the language in the Certification Disposition Notice does not provide a basis for the Commission to reconsider its prior decision in this matter. With regard to her overall background, it is undisputed that the petitioner’s background includes a 2006 simple assault conviction after an expunged 2003 arrest involving similar charges, three TROs which were filed against her and nine driving infractions, including one after the closing date. Concerning the finding that she possessed an unsatisfactory background, even with the expungement of her 2003 arrest, the parallel between those underlying charges and her 2006 conviction supports the Commission's conclusion that her 2006 conviction was part of a pattern of arrests, rather than an isolated incident. Although the petitioner maintains that Bloomfield and East Orange presented errors in their supporting documentation, she has failed to demonstrate that the Commission relied upon any such inaccuracy in its prior decision in this matter. Regarding her arguments about East Orange’s consideration of an FRO against the father of her children and her involvement in five traffic accidents, the Commission notes that it did not cite these items as evidence that supported her removal from the subject eligible lists and the petitioner's pattern of arrests distinguishes this matter from Hernandez, supra., as Hernandez’s expunged arrest was the only arrest in his record.

Further, the Commission emphasizes that it was appropriate for it to consider the petitioner’s employment record in its April 4, 2018 decision. Although neither East Orange nor Bloomfield cited it as a basis to remove her from the subject eligible list, because the petitioner made the argument on appeal that her employment as a Juvenile Detention Officer at the Essex County Juvenile Detention Center from June 2010 to May 2011 demonstrated her suitability to serve as a Police Officer, it was necessary to address her contention. It is clear that as a party in In the Matter of April Scott (CSC, decided April 18, 2012), the petitioner was aware that she resigned in good standing from her position of Juvenile Detention Officer, effective May 12, 2011, in lieu of removal. Further, the Commission’s decision was a matter of public record. As such, it was reasonable for the Commission to consider her employment record, even though East Orange and Bloomfield did not assert it as a basis for her removal. Moreover, her rationale for disputing the Commission’s characterization of her public employment record as “mixed” is unavailing. Even though she may have received an appointment to the title of Family Service Worker after resigning in good standing, in lieu of removal, from her position as a Juvenile Detention Officer, a resignation under such circumstances is clearly a blemish on her public employment record, which supports the characterization that it is a “mixed record.”

As to the petitioner's driving record, it is noted that although she questions items on the “non-certified” driver’s abstracts that each appointing authority submitted, in reality, both furnished certified driver's abstracts and these documents are sufficient proof of her driving record. Although the petitioner claims that there are “questionable” items listed in each driver's abstract, the only specific items she disputes are Bloomfield’s reference to a 2007 careless driving violation and a January 2009 citation for failure to obey a traffic control signal. The Commission observes that the above-noted dates appear to correspond to the posting dates for November 2006 careless driving infraction and a September 2008 citation for failing to obey a traffic control signal, respectively. The Commission emphasizes that the petitioner has the burden of proof in challenging her list removal appeals and here, she has failed to submit evidence that her certified driver's abstract contains any errors. Accordingly, there is no basis for the Commission to reconsider its findings concerning her driving record.

While the petitioner cites East Orange and Bloomfield’s handling of incidents involving several employees to argue that her background and driving record did not warrant her removal, the Commission finds that these arguments do not sustain her burden of proof in this matter. The Commission recognizes that an appointing authority may pursue disciplinary charges against a Civil Service employee who is charged with a crime or has his or her driving privileges suspended. However, because the evaluation of an eligible for appointment to a Civil Service title involves different considerations than disciplinary actions, East Orange and Bloomfield’s disciplinary practices cannot be used demonstrate that their hiring practices are arbitrary or capricious. Accordingly, the petitioner has not met the standard for reconsideration.

ORDER

Therefore, it is ordered that this request for reconsideration be denied.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.