P.E.R.C. No. 2006-1, Rutgers

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of RUTGERS, THE STATE UNIVERSITY, Respondent, -and- Docket No. CO-1994-158 THOMAS FIGUEIRA, Charging Party-Intervenor. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies Thomas Figueira’s request for special permission to appeal a Hearing Examiner’s decision granting Rutgers, The State University’s motion to quash a subpoena directed to Professor and former University President Francis Lawrence. The Commission holds that it will not intrude on the evidentiary rulings of a Hearing Examiner mid-hearing absent extraordinary circumstances. ¶

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 PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of RUTGERS, THE STATE UNIVERSITY, Respondent, -and- Docket No. CO-1994-158 THOMAS FIGUEIRA, Charging Party-Intervenor. ¶

AppearancesAppearances: ¶

For the Respondent, McElroy, Deutsch, Mulvaney & Carpenter, LLP (John J. Peirano, of counsel) ¶

For the Charging Party-Intervenor (Thomas Figueira, pro se) ¶

DECISION ¶

On June 23, 2005, a Hearing Examiner granted a petition to quash a subpoena directed to Professor and former University President Francis Lawrence. The Hearing Examiner found that Lawrence is a “high level” government official who has not been shown to have “first-hand knowledge” of or “direct involvement” in facts underlying the two remaining issues in this case. See Hyland v. Smollok, 137 N.J. Super . 456, 460 (App. Div. 1975) (high-level government officials should not be deposed absent showing of first-hand knowledge or direct involvement in the events giving rise to an action, absent a showing that such deposition is essential to prevent injustice). ¶

On June 27, 2005, the charging party-intervenor, Thomas Figueira, requested special permission to appeal that ruling. He has also requested oral argument. On July 5, Rutgers, The State University filed a letter in opposition to the request. On July 11, the charging party filed a reply. We will consider that reply over the objection of the respondent. ¶

The charging party-intervenor argues that Lawrence is a colleague who has had considerable direct personal dealing with the charging party and who was directly involved in the processing of the Edmunds document, which “punished the [charging party] ostensibly for harassment of two colleagues” ; the Hearing Examiner’s decision is premature; the charging party has a right to question Lawrence about how the authors of the Edmunds document got a copy of a letter the charging party wrote to Lawrence; and it is reasonable to assume that Lawrence might have had something to do with developing the Edmunds document. ¶

We deny oral argument and special permission to appeal. As we stated in P.E.R.C. No. 2005-47, 31 NJPER 79 (¶36 2005), we will not intrude upon the evidentiary rulings of a Hearing Examiner mid-hearing absent extraordinary circumstances. At the conclusion of the hearing, any party may file exceptions to the Hearing Examiner’s recommendations and we will consider the case as a whole, including any disputed discovery or evidentiary rulings. We also note that the charging party-intervenor may renew his subpoena request during the hearing should evidence be introduced showing that Lawrence had any first-hand knowledge of or direct involvement in the development of the Edmunds document or in the decision to transfer the charging party-intervenor’s office. ¶

OrderORDER ¶

The request for special permission to appeal is denied. ¶

BY ORDER OF THE COMMISSION ¶

Lawrence Henderson ¶

Chairman ¶

Chairman Henderson, Commissioners Buchanan, DiNardo, Fuller and Watkins voted in favor of this decision. None opposed. Commissioners Katz and Mastriani were not present. ¶

DATED: July 28, 2005 ¶

Trenton, New Jersey ¶

ISSUED: July 28, 2005 ¶