Carteret, NJ – Borough officials today lambasted a New Jersey Appellate Division decision reinstating a Borough crossing guard who had been terminated for distributing confidential student records and then lying to investigators about her role in the incident.
The crossing guard was terminated in April 2012, following a disciplinary hearing that resulted in a determination that she improperly received a Carteret High School student’s confidential records which included attendance, grade and confidential personal information, in the summer of 2011. The crossing guard obtained the student record from a school employee during the Summer of 2011 and admitted under oath to passing on the information to other individuals who then distributed it publically.
The Borough was subsequently advised of the incident by school officials and instituted an investigation which resulted in the disciplinary charges against the guard. After several individuals, believed to be involved in the matter asserted their fifth amendment right against self incrimination the Borough referred the matter to the Middlesex County Prosecutor. In December 2011, the Middlesex county Prosecutor’s Office citing “prosecutorial discretion” elected not to pursue criminal charges against the individuals involved and authorized the Borough to proceed with administrative charges. The Borough then moved forward with the disciplinary hearings against its only employee involved.
After a week long hearing before an independent hearing officer, Municipal Court Judge Maria DelValle Koch, the guard was found guilty of the charges with a recommendation that she be terminated from her employment. In her decision, Judge Koch found that the guards version of events “taxes credulity.”
The Borough then followed Koch’s recommendation and terminated the guard.
The guard turned to the Public Employee Relation Commission, the state agency established for the purpose of reviewing only public employer/employee disputes, for what Borough officials termed “a second, third and fourth bite at the apple.” In a January 2014 Award, the PERC appointed union arbitrator overturned the guard’s discharge and directed her reinstatement, notwithstanding the prior decision by Judge Koch. According to the Borough Attorney Robert Bergen, who did not handle the appeals, “unfortunately, under existing law, arbitrators are not bound at all by any of the prior findings or decision on the initial disciplinary charges. They don’t worry about letting the facts get involved in the decision making process. The problem in New Jersey is that the few bad public employees have an almost unending process of appeals and countless avenues to avoid being held accountable for their actions.”
The Borough subsequently filed an action in the Superior Court challenging the Arbitrator’s Award for failing to render a proper decision on all of the issues raised by the Borough in the disciplinary matter. Judge Frank Ciuffani, SCCD, agreed with the Borough and remanded the matter back to the Arbitrator for further findings. In a May 14, 2014 decision on remand, the Arbitrator summarily confirmed his prior Award, overturning the discharge and reinstating the guard to her prior position and compensation.
Following the Arbitrator’s remand Award the Borough paid the guard through the end of the 2012 School Year for which she had been appointed at the time of her termination but determined not to rehire her for subsequent school years. Under New Jersey law crossing guards can only be appointed for a term of one year after which they may be reappointed in the discretion of the appointing authority.
Thereafter, the crossing guard thorough her union filed a Complaint in Superior Court in September 2014, seeking to compel the Borough to rehire her beyond 2012.
In February 2015, the trial court judge, citing the very limited statutory basis for a court to overturn an Arbitrator’s decision, upheld the Arbitrator’s award which he found required the Borough to rehire the guard for the period of time beyond her one year statutory appointment.
It was that decision that the Borough appealed. In its December opinion, the Appellate Division panel ignored state law that limits the terms of crossing guards to one (1) year and hid behind a long standing policy giving almost blind deference to the decisions of arbitrators. A position that Borough officials called a victory of bad procedure over sound public policy.
“It is unfortunate, that we have a system that protects the interests of errant public employees at the expense of the interests of the public.” said councilman Skippy Sitarz who serves as police commissioner which oversees the crossing guards.. “In this case, the PERC arbitrator brushed aside the fact that a minor student’s private records were accessed and distributed and decided instead that the individual who admitted to distributing those records and then lied to investigators about it was not only entitled to keep their job but also deserved no punishment whatsoever.”
