P.E.R.C. No. 2004-81, NJ/State (Community Affairs)

CaptionSTATE OF NEW JERSEY BEFORE THE MERIT SYSTEM BOARD AND PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matters of STATE OF NEW JERSEY, JOINT DECISION AND ORDER DEPARTMENT OF COMMUNITY AFFAIRS, Respondent, DOP Docket Nos. 2001-3359 & 2002-622 -and- OAL Docket Nos. MAXIMO A. NINAL, JR. CSV 913-01 & CSV 9344-01 Appellant. ---------------------------------- STATE OF NEW JERSEY (DEPARTMENT OF COMMUNITY AFFAIRS), Respondent, -and- PERC Docket No. CI-H-2002-15 MAXIMO A. NINAL, JR., Charging Party. ¶

SynopsisSYNOPSIS ¶

In a joint order, the Public Employment Relations Commission and the Department of Personnel adopt an Administrative Law Judge's recommendation and make enforceable the terms and conditions of a settlement agreement entered into between Maximo A. Ninal, Jr. and the State of New Jersey (Department of Community Affairs). Ninal's appeal filed with the Merit System Board and his unfair practice charge filed with the Commission had been consolidated for hearing before an ALJ. At the hearing, the parties entered into a settlement agreement which was subsequently reduced to writing. Ninal refused to sign the written agreement and sought to have the hearings continued. The ALJ found that the parties entered into the settlement agreement voluntarily and freely with the advice of counsel and without any fraud. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE MERIT SYSTEM BOARD AND PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matters of STATE OF NEW JERSEY, JOINT DECISION AND ORDER DEPARTMENT OF COMMUNITY AFFAIRS, Respondent, DOP Docket Nos. 2001-3359 & 2002-622 -and- OAL Docket Nos. MAXIMO A. NINAL, JR. CSV 913-01 & CSV 9344-01 Appellant. ---------------------------------- STATE OF NEW JERSEY (DEPARTMENT OF COMMUNITY AFFAIRS), Respondent, -and- PERC Docket No. CI-H-2002-15 MAXIMO A. NINAL, JR., Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Peter C. Harvey, Attorney General (Julie Cavanagh, Deputy Attorney General) ¶

For the Charging Party, Maximo A. Ninal, Jr., pro se ¶

JOINT DECISION ¶

Maximo A. Ninal, Jr. ( “Appellant” ) filed appeals with the Merit System Board regarding a ten-day suspension and his removal from employment by the State of New Jersey, Department of Community Affairs. Appellant also filed an unfair practice charge with the Public Employment Relations Commission. The appeals were transmitted to the Office of Administrative Law and a Complaint on the unfair practice charge was issued. The matters were consolidated before an Administrative Law Judge. P.E.R.C. No. 2003-45, 29 NJPER 401 (¶130 2003). ¶

At an October 16, 2003 hearing, extensive settlement negotiations took place and the parties settled the matter. The terms of the settlement were placed on the record. The pertinent terms called for Appellant’s withdrawal of the appeals and the unfair practice charge in exchange for a lump sum payment of $35,000 and a resignation in good standing. ¶

The ALJ questioned Appellant about the terms of the settlement and Appellant indicated that he understood that the matter was being settled that day. The parties agreed that the terms of the agreement would also be reduced to a written agreement that would reflect the terms as stated on the record. ¶

No written agreement was forwarded to the ALJ. The attorney for Respondent informed the ALJ that Appellant refused to sign a written agreement memorializing the settlement. On December 31, 2003, Respondent filed a motion to enforce the settlement. ¶

The case was re-listed for March 24, 2004 to give Appellant an opportunity to explain why he refused to sign the agreement. Although Appellant was represented by counsel, he personally indicated that he did not want to honor the settlement agreement, and that he wanted to continue the hearing. He indicated that he had not understood the terms of the agreement that had been placed on the record on October 16, 2003. Appellant stated that he was under the impression that the agreement reached was only an offer, and that a signed agreement had to be executed. The ALJ conducted a lengthy review of the record, including the transcript of the prior proceedings. ¶

On March 29, 2004, the ALJ issued an Initial Decision finding that the parties entered into the settlement agreement voluntarily and freely with the advice of counsel and without any fraud. He also found that the agreement was fair and just under the circumstances and consistent with law, and that approval of the settlement agreement would serve the interests of justice. The ALJ approved the terms of the settlement agreement as reflected in the transcript of the October 16, 2003 proceeding. The ALJ ordered the parties to comply with the settlement terms, subject to final approval by the Commission and the Merit System Board. ¶

On May 4, 2004, Appellant filed exceptions.1/ He asserts that enforcing the Initial Decision may violate his constitutional and civil rights. He further asserts that he did not understand or review the terms of the settlement and that he felt coerced. Appellant indicates that he would sign the Settlement Agreement if he could have an additional $5,000. ¶

On May 11, 2004, Respondent filed a response urging adoption of the ALJ’s Initial Decision. On May 26, Appellant filed a supplemental submission. ¶

New Jersey has a “strong public policy favoring the settlement of litigation.” Zuccarelli v. Dept. of Environmental Protection, 326 N.J. Super. 372, 380 (App. Div. 1999), certif. den. 163 N.J. 394 (2000) (citing Nolan v. Le Ho, 120 N.J . 465, 472 (1990). A voluntary settlement agreement is binding upon the parties, whether or not made in the presence of the court or in writing. Pascarella v. Bruck, 190 N.J. Super. 118 (App. Div. 1983); In the matter of Edgar Medina (MSB, decided May 23, 2000) (MSB acknowledged settlement placed on the record even though appellant did not sign written memorialization of agreement). The question in this case is whether the agreement was voluntarily entered into. The ALJ ruled that it was. We agree. ¶

N.J.A.C. 1:1-19.1 provides that where the parties orally disclose the full settlement terms, and the ALJ determines that the settlement is voluntary, consistent with the law and fully dispositive of all issues in controversy, the ALJ shall issue an initial decision incorporating the full terms and approving the settlement. The ALJ has done exactly that. ¶

Appellant was represented by counsel. The terms of the settlement agreement were placed on the record at the October 16, 2003 hearing. Appellant asked and answered questions about the settlement that indicated his understanding of its terms and did not suggest any confusion or coercion. That the parties engaged in subsequent negotiations in an attempt to conclude the matter does not undermine the fact that on October 16, the consolidated matter was settled upon mutually agreeable terms. We know of no constitutional or civil rights that would be contravened by enforcing this settlement agreement. Finally, the agreement is not in contravention of any Merit System law or rule. ¶

Having independently evaluated the record and considered the ALJ's Initial Decision, the Board, at its meeting on June 9, 2004 and the Public Employment Relations Commission, at its meeting on May 27, 2004, adopt the ALJ’s recommendation and make the terms and conditions of the settlement agreement enforceable. ¶

JOINT ORDER ¶

The terms and conditions of the October 16, 2003 settlement agreement as recited in the Initial Decision are acknowledged and enforceable. ¶

DECISION RENDERED BY THE DECISION RENDERED BY THE ¶

MERIT SYSTEM BOARD ON PUBLIC EMPLOYMENT RELATIONS ¶

JUNE 9, 2004 COMMISSION ON MAY 27, 2004 ¶

Ida L. Castro Lawrence Henderson ¶

Commissioner Chairman ¶

Department of Personnel Public Employment Relations ¶

Commission ¶

Chairman Henderson, Commissioners Buchanan, DiNardo, Mastriani and Sandman voted in favor of this decision. None opposed. Commissioner Katz was not ¶

Note1/ The Initial Decision was mailed to Appellant on April 19, 2004. ¶