IN THE MATTER OF UMAR SALAHUDDIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF

UMAR SALAHUDDIN, ATLANTIC CITY.

___________________________________

July 13, 2015

Submitted May 19, 2015 Decided

Before Judges Guadagno and Leone.

On appeal from the New Jersey Civil Service Commission, Docket Nos. 2010-3600 and 2011-343.

Law Offices of Richard L. Press & Associates, attorneys for appellant Umar Salahuddin (Richard L. Press, on thebriefs).

Ruderman & Glickman, P.C., attorneys for respondent City of Atlantic City (Steven S. Glickman, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Elizabeth A. Davies, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Umar Salahuddin appeals from the final administrative action of the Civil Service Commission (Commission) upholding his demotion by the City of Atlantic City (City) from the position of Assistant Youth Opportunity Coordinator (AYOC) to Community Service Aide. The Commission chose not to adopt the well-reasoned and comprehensive decision of Administrative Law Judge (ALJ) Bruce M. Gorman finding that Salahuddin's demotion was done in bad faith. Because we find that the Commission's determination was not supported by sufficient, credible evidence in the record, we reverse and remand.

I.

Salahuddin began his employment with the City in 1983 as the mayor's Youth Program Director. In 1985, his title was changed to AYOC, where he oversaw the employment and hiring of youth. In 2001, Lorenzo Langford was elected mayor.

In 2005, Langford ran for reelection and was opposed by Robert Levy in the Democratic primary. Salahuddin actively supported Levy and even walked door-to-door with him. During the campaign, Salahuddin encountered Langford on several occasions.

Levy won by a large margin but resigned in October 2007. Scott Evans was then sworn in to serve the remainder of Levy's term. Salahuddin enjoyed a good relationship with Evans. In 2008, a special election was held and Evans lost the Democratic nomination to Langford, who went on to win the election to serve the remainder of Levy's term. Salahuddin was not involved in that campaign.

In the 2009 Democratic primary, Langford was opposed by Marty Small. Salahuddin supported Small, and Langford testified that he was aware of this support. Ultimately, Langford prevailed in the primary and the general election.

When Langford took office in 2008, Salahuddin noticed a change in their relationship. Although he had attended regular meetings with all prior mayors, Langford excluded him from all meetings. Salahuddin testified that Langford stopped speaking with him and would "walk right past [him] as if [he] didn't exist." Although Mayor Evans had increased Salahuddin's salary from $54,725.96 to $63,482.12 in 2008, Langford reduced it back to the former amount upon taking office.

Believing he was the victim of political retaliation, Salahuddin filed complaints through his union and the City's affirmative action officer. In his September 25, 2009 complaint to the City's affirmative action officer, Salahuddin alleged that the scope of his job duties was decreased, he was removed from his office and placed in a "storage room with no phone or computer," and had been targeted for write-ups and improper discipline. The City did not conduct an investigation.

In November 2009, Salahuddin was advised that his use of a City-issued cell phone would be discontinued even though he used the phone for work-related matters on nights and weekends.

In February 2010, Salahuddin received an unsigned document containing a list of ten people who had opposed Langford. The list bore the heading "As per the Mayor" and contained Salahuddin's name. On May 17, 2010, Salahuddin was served with a notice of layoff. Because of his seniority, he did not lose his job but was demoted to the position of Community Service Aide, and his salary was further decreased to $53,693.40.

Salahuddin testified that nine out of the ten people on the document, which was referred to at trial as the "hit list," were impacted by the May 2010 layoffs. According to Salahuddin, the only person not affected was Shermaine Gunter-Gary because her demotion would have displaced a Langford appointee.

Several news articles related to the layoffs were admitted into evidence before the ALJ. The articles identify most of the people on the list as political adversaries of Langford who were the targets of the City's proposed budget cuts. Langford's press secretary testified that he discussed one of these articles, dated March 5, 2010, with Langford. In the article, Langford was quoted as saying he "doesn't get mad, he gets even." At the hearing, Langford admitted to making that statement.

At the time of the layoffs, the City had to account for approximately $16.5 million in additional expenses in the 2010 budget, which included $4 million in increased wages, $3.5 million in increased pension costs, and a deficit of approximately $9 million from 2009. The City was required under State law to close the 2009 budget gap in its 2010 budget.

After taking into account the City's revenue sources, there was still an approximate gap of $9.5 million between revenue and expenditures in the 2010 budget. As a result, Michael Stinson, the City's Director of Revenue and Finance, testified that layoffs were necessary. The 2010 layoffs saved the City approximately $3.6 million.

In October 2011, the City appointed Michael Bailey to the title of Youth Opportunity Coordinator, a position with virtually identical job duties to Salahuddin's former position of AYOC. Langford knew Bailey personally and professionally. Salahuddin was not permitted to apply for the position because the promotional announcement was not open to the department in which he worked.

The ALJ found that Salahuddin's demotion was done in bad faith. He explained that the demotion resulted in savings to the City of only $3,300, the salary difference between the AYOC position and Community Service Aide position. The ALJ also found that Bailey's appointment was further evidence of bad faith, explaining that "the design in demoting [Salahuddin] was not to accomplish economy, but, to the contrary, was to effect the removal of [Salahuddin]" and replace him "with a new and friendlier person filling the slot."

Finally, ALJ Gorman found Langford's testimony "incredible and unbelievable." The judge highlighted a few examples, including Langford's initial claim that he was not aware that Salahuddin had supported Small, but later admitted that he was aware of Salahuddin's political activities, including his support for Small; that Langford denied that he was aware of Salahuddin's salary reduction but later admitted to signing a document reducing his salary; and that Langford denied that he knew of Bailey's appointment despite being a personal and professional friend.

The Commission did not adopt the ALJ's recommendation and instead upheld Salahuddin's demotion. The Commission found "nothing in the record to demonstrate that [Salahuddin's] demotion was for reasons other than economy or efficiency." The Commission relied on the City's exceptions to ALJ Gorman's initial decision in noting that the total savings realized by demoting Salahuddin equaled $32,627.62, because one other person was demoted and one was displaced. The Commission also found that there was no evidence that Langford authored the hit list or that he specifically targeted Salahuddin. Because Salahuddin failed to provide sufficient evidence to establish a bad faith motive in light of the City's economic difficulties, the Commission found that the City's action demoting him was justified.

II.

The scope of our review of an administrative agency's determination is limited. In re Herrmann, 192 N.J.19, 27 (2007). We focus on three inquiries

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).]

A reviewing court or agency head is not permitted to reject or modify findings of fact as to the credibility of lay witnesses unless those findings are "'arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record.'" In re Snellbaker, 414 N.J. Super. 26, 36 (App. Div. 2010) (quoting N.J.S.A.52:14B-10(c)). An agency that rejects or modifies any factual finding "shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record." N.J.S.A.52:14B-10(c).

There is a presumption of good faith when a municipality abolishes a position due to economic reasons. Greco v. Smith, 40 N.J. Super. 182, 189 (App. Div. 1956). The burden is on the petitioner to show that the municipal action was done in bad faith. Ibid. However, "[t]he abolition of a position in the municipal service, or the discharge of the person occupying that position, must not be merely colorable or a device for circumventing the employee's civil service protection while retaining his position in substance." Id.at 190-91.

The ALJ made several findings in support of his conclusion that Salahuddin's demotion was for reasons other than the economy or efficiency

The essential underpinning of any layoff plan is the premise that it will save money. Yet in the case of appellant, no true savings was achieved. The demotion of appellant from the position of Assistant Youth Opportunity Coordinator to Community Service Aide ostensibly resulted in a $3,300 savings. But that savings was negated shortly thereafter by the appointment of Michael Bailey to the previously vacant position of Youth Opportunity Coordinator at a net salary increase of $4,090. The totality of the testimony from the sundry witnesses established beyond question that Bailey was a Langford supporter.

. . . .

The political nature of Bailey's appointment is highlighted by the fact that his position as Youth Opportunity Coordinator was transferred out of the Department of Health and Human Services and into the Department of Public Safety, while the vacant position of Assistant Youth Opportunity Coordinator, as well as appellant's current position of Community Service Aide, remained in the Department of Health and Human Services. The only possible conclusion is that Bailey's position was transferred to the Department of Public Safety in an attempt to insulate him from attack from below, specifically, an effort by appellant to compete for the position.

. . . .

Given appellant's lengthy history of political opposition to Mayor Langford, appellant's extensive interaction with the general public was not desirable to Mayor Langford. By demoting appellant, Mayor Langford effectively limited appellant's potential political impact.

Any time a general layoff is required by a municipality, the elected officials involve[d] confront the temptation to use that layoff for political purposes. In this case, I am satisfied that Mayor Langford succumbed to that temptation. The presence on the layoff list of other political opponents . . . only buttresses that conclusion.

The ALJ, who had the opportunity to observe Langford "carefully" during his testimony, made comprehensive credibility determinations

Mayor Langford presents as intelligent and articulate. He has an outstanding record in the political arena. He rose from the ranks to defeat an extremely popular incumbent Mayor in James Whelan, a man who ultimately won election to the State Senate. He was defeated for re-election in 2005 by a coalition of forces, and his career appeared to be over. But he fought back and won re-election in 2008 and again in 2009. He has demonstrated over a [twenty-year] career that he is an extremely able politician.

Yet on the witness stand, Mayor Langford attempted to assert only the vaguest recollection of his various political opponents. Similarly, he denied active participation in the layoff process and only minimal recollection of what actions were taken during the layoff. His purported passivity in this process fails to coincide with his past history as a talented and resilient politician. For that reason, his assertions of ignorance both of his opponents and of what was done to them defy belief. I am satisfied that Mayor Langford knew exactly what was happening during the layoff and was fully aware that certain former political opponents were suffering penalty. I CONCLUDE that his testimony to the contrary was incredible and unbelievable.

The Commission acknowledged its obligation to defer to this determination and "that there is sufficient evidence in the record to support the ALJ's credibility determination regarding Langford." Nevertheless, the Commission found that there was "nothing in the record to demonstrate that [Salahuddin's] demotion was for reasons other than economy or efficiency."

The Commission's conclusion is based on the absence of proof that Langford actually "composed" the hit list or "specifically targeted" Salahuddin's position for layoff. This finding ignores the uncontested record evidence that the hit list bore the heading "As per the Mayor" and was comprised primarily of Langford's political enemies who were impacted by the layoffs. Moreover, Langford's press secretary admitted to discussing a newspaper article identifying persons on the hit list with Langford, and Langford admitted to saying that he "doesn't get mad, he gets even." This compelling evidence of political retaliation is in no way diminished by lack of proof that Langford personally drafted the hit list.

Furthermore, in discussing Bailey's appointment to a position nearly identical to Salahuddin's previous position, the Commission ignores Bailey's status as a political ally of Langford. Moreover, the Commission fails to acknowledge the significance of moving the Youth Opportunity Coordinator position to a department different from Salahuddin's, thereby preventing him from competing for the position. As the ALJ recognized, "Bailey's position was transferred to the Department of Public Safety in an attempt to insulate him from attack from below, specifically, an effort by [Salahuddin] to compete for the position."

Additionally, Langford was aware that as AYOC, Salahuddin engaged in "a lot of speaking." Langford knew that Salahuddin spoke at rallies, funerals, and other events. The ALJ noted that Salahuddin had "extensive contact with the general public and was in a position to influence those who heard him speak." The ALJ found that Salahuddin's extensive contact with the public was not desirable to Langford given Salahuddin's "lengthy history of political opposition." Thus, "Langford effectively limited [Salahuddin's] potential political impact" by demoting him.

Although the City was facing economic difficulties at the time of the layoffs, Salahuddin presented ample evidence to demonstrate that he was demoted in bad faith. The economic situation cannot be used as a "device for circumventing [Salahuddin's] civil service protection while retaining his position in substance." Greco, supra, 40 N.J. Super.at 190-91. Given that Salahuddin's position was functionally retained when Bailey became the new Youth Opportunity Coordinator, it appears that the City used the economic layoffs as an opportunity to punish political opponents.

The totality of the evidence strongly suggests that Salahuddin was targeted due to his political opposition to Langford. To conclude that there is "nothing in the record" to support a finding of political retaliation ignores compelling record evidence and is so "wide of the mark" that reversal is warranted. See Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997).

Finally, the Commission relied on evidence outside of the record when it concluded that the City saved $32,627.62 due to Salahuddin's demotion. This information was contained in the City's exceptions to the ALJ's decision. "A final decision shall include findings of fact and conclusions of law, separately stated and shall be based only upon the evidence of record at the hearing . . . ." N.J.S.A.52:14B-10(d). Although it can be inferred that the savings realized by the demotion amounted to more than just $3,300 (the salary difference between Salahuddin's former and current positions), any finding as to the specific amount is purely speculative.

Salahuddin seeks counsel fees pursuant to N.J.S.A. 11A:2-22 and counsel fees for this appeal pursuant to Rule 2:11-4. N.J.S.A. 11A:2-22 permits the Commission to "award back pay, benefits, seniority and reasonable attorney fees to an employee as provided by rule." The Commission "shall award partial or full reasonable counsel fees incurred in proceedings before it and incurred in major disciplinary proceedings at the departmental level where an employee has prevailed on all or substantially all of the primary issues before the Commission." N.J.A.C. 4A:2-2.12. On remand, the Commission shall enter an appropriate award of counsel fees.

With respect to counsel fees for this appeal, according to Rule2:11-4, "An application for a fee for legal services rendered on appeal shall be made by motion supported by affidavits as prescribed by R.4:42-9(b) and (c), which shall be served and filed within 10 days after the determination of the appeal." The issue of counsel fees for this appeal shall not be considered until such an application has been made.

The Commission's determination is reversed and the matter is remanded for the purpose of reinstating the findings of the ALJ.