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1. Kain is a Registered Municipal Clerk. He was initially certified on or about 

December 12, 1994 and has been the Municipal Clerk for the City since 1997.

1. On or about July 13, 2009, Kain did not appear for work.

1. Since July 13, 2009, Kain has not returned to work for a single day and has been continuously unable and/or failed to perform his job duties. See Exhibit P1-1.
2. On or about July 17, 2009, Kain submitted a counselor’s note indicating that “Kain is being treated and currently is unable to work.”  See Exhibit P1-2.  No additional information was provided by Kain.
3. Kain initially utilized his accrued, paid sick leave time. See Exhibit P1-1.
4. On July 16, 2009, the City provided information to Kain regarding the City’s Employee Assistance Program.  See Exhibit P1-3.  
5. On July 22, 2009, the City advised Kain that if he intended to seek a leave of absence under the Family and Medical Leave Act (“FMLA”) he needed to submit a letter requesting leave and documentation from his physician.  See Exhibit P1-4.  
6. On July 24, 2009, Kain submitted a note from a second healthcare provider, stating he was suffering from a medical condition and would be able to return to work on September 1, 2009.  See Exhibit P1-5.  
7. On August 12, 2009, the City advised Kain it had scheduled a return to work examination for Kain for August 25, 2009 based upon his projected return to work date of September 1, 2009.  See Exhibit P1-6.  Kain did not attend the examination.
8. On September 1, 2009, Kain submitted a note from a third healthcare provider, stating “Please excuse Mr. Kain from work until further notice as he is currently in treatment at this time.”  See Exhibit P1- 7.  
9. On September 2, 2009, the City advised Kain that as of September 4, 2009, Kain had exhausted all his accrued sick time and that the City would begin to exhaust his 13 remaining days of vacation and 2 personal days.  See Exhibit P1-8, see also Exhibit P1-1.  
10. On September 14, 2009, Kain submitted a letter requesting FMLA leave for a serious health condition.  He requested his FMLA leave be unpaid and commence upon his completion of all accrued sick, vacation and personal days.  See Exhibit P1-9.  Kain stated he intended to return to work in December 2009 on a full time basis. Id. 
11. Despite the fact that the City’s FMLA policy provides the concurrent use of FMLA leave, the City, as an accommodation to Kain, granted his request and permitted the usage of FMLA time consecutive to his use of and exhaustion of his accrued sick time and after a few vacation days. See Exhibit P1-10; P1-1; and P2.
12. Kain’s FMLA leave commenced on September 14, 2009 as per his request. See Exhibit P1-1.
13. On September 23, 2009, the City advised Kain that as of September 29, 2009 he had exhausted all accrued sick, personal and vacation time and that while he would receive 12 weeks unpaid FMLA leave and continuation of benefits, he would no longer receive a paycheck.  See Exhibit P1-11.  
14. By letter dated October 26, 2009, the City advised Kain his FMLA leave would end on December 7, 2009 and if he did not return to work on that date his employment and benefits would be terminated. See Exhibit P1-12.  He was requested to supply an updated physician’s certification since none had been provided since September 1,  2009. Id.  He was advised he would need a return to work note to return from FMLA leave stating he was physically able to return to his duties. Id.  
15. On November 5, 2009, Kain’s spouse sent an email to the City requesting clarification of the FMLA return to work date.  See Exhibit P1-13.
16.   
17. On November 5, 2009, the City responded to Kain’s spouse’s email and confirmed his FMLA commenced on September 14, 2009 and expired on December 7, 2009.  See Exhibit P1-14.  
18. On November 13, 2009, Kain supplied a note from a fourth healthcare provider, stating Kain was “continuing his leave due to a serious health condition for which he was receiving ongoing counseling and treatment” and that he would “remain out of work until at least November 30, 2009.”  See Exhibit P1-15.  
19. On November 19, 2009, the City wrote to Kain regarding the November 13, 2009 note stating it was not sufficiently detailed for the City to determine whether he had a qualifying serious medical condition under the FMLA. The City requested Kain have his healthcare provider complete and submit the Certification of Health Care Provider approved by the United States Department of Labor and submit the form by November 29, 2009. See Exhibit P1-16.  
20. On or about November 23, 2009, the City received an additional Certification from Kain on the USDOL approved form as requested stating that Kain was suffering from a serious medical condition of a “probable duration of 3-6 months” and that he “will need leave from his job until at least 12/31/09 at which time his progress will be reevaluated….”  See Exhibit P1-17 (emphasis added).  
21. On November 30, 2009, the City wrote to Kain advising his FMLA job protection would expire on December 7, 2009 and reminded him of the need to return to work with a fitness for duty certification. He was advised that if he returned to work on December 7, 2009, the City would proceed with the hearing which had been adjourned since August 3, 2009 on the disciplinary charges previously filed against him in May 2009.    See Exhibit P1-18.  
22. On Sunday, December 6, 2009, at approximately 10pm the night prior to his expected return to work date, Kain sent an email to the City stating he understood his FMLA status was ending and he was expected to return to work on December 7, 2009.  Kain stated he had not received medical clearance to return. Kane stated he needed additional leave.  He requested an extension of leave but did not state when he could return to work. See Exhibit P1-19.  
23. On December 7, 2009, the City responded to Kain’s December 6, 2009 email and advised the City could not extend his leave since (1) he had already been out of work on leave since July 13, 2009, and had utilized almost 5 months of leave, including all accrued sick, vacation and personal time, as well as 12 weeks of unpaid FMLA time; (2) neither Kain nor his healthcare provider could provide the City with a date certain upon which he could return to work; and (3) the City had already accommodated Kain’s request for a longer leave than an employee would be afforded by permitting him to use his accrued sick time consecutive to his unpaid FMLA time and a few vacation days, contrary to the City.  See Exhibit P1-20.
24.  
25. On December 7, 2009, Kain’s job protected FMLA leave expired.
26. On December 7, 2009, Kain did not return to work.
27. Kain had no further accrued paid time to utilize for any additional absences. 
28. On December 7, 2009, the City passed a resolution to remove Kain for his inability and/or refusal to perform his duties since July 13, 2009 and failure to return to work on December 7, 2009.  See Exhibit P1-21.
29. Suddenly, on or about April 21, 2010, more than 9 months after he last worked for the City, Kain’s attorney advised by letter that Kain intended to return to work. See Exhibit P3. Kain appeared at work on April 22, 2010 for the first time in 9 months. Kain had a physician’s note stating he could return to work as of March 22, 2010.  See Exhibit P4. Due to the fact he had not appeared for work for over 9 months, he had given less than 24 hours of his intent to return to work, and that the City had already initiated proceedings with the NJDCA seeking his removal 4 months earlier, the City declined Kain’s request to return to work.
30. Kain’s prior disciplinary record includes charges filed on or about February 13, 2009, of insubordination, failure to perform duties and deliberate delay of work effort for which he received a written reprimand. See Exhibit P1-22.
31. In addition, on May 5, 2009, Kain received notice of charges of 13 charges related to conduct from January 2009 through May 2009 including: use of City property for political purposes; failure to respond to requests for information from Mayor; failure to attend a bank settlement; failure to respond to OPRA requests; improper use of sick time; release of executive session meetings minutes not approved by Council; non-cooperation with UEZ office; denial of OPRA requests without seeking legal advice; release of government documents to wife without authorization or OPRA request; failure to respond to Council inquiries and/or requests; failure to supply contracts for City vendors; errors in salary ordinances; failure to provide Mayor and Council Executive Session meeting minutes as requested. See Exhibit 23.
32. Kain never responded to the charges. A hearing was scheduled for August 3, 2009 but was not held since he left on July 13, 2009 and never returned. Thus, these charges remain pending and were never adjudicated.
33. In addition, since Kain left on July 13, 2009, the City has discovered additional issues warranting further disciplinary charges which include the following:
    •  checks received by City not processed; 
    •  check for liquor license and completed application received in May 2009 not forwarded to Division of ABC for processing;
    •  SCUCS agreement from February never processed and resolution never completed; 
    •  Code Book Updates from February 2009 never distributed; 
    •  NJDOP forms for termination for of employee not completed; 
    •  employee forms with wrong retirement date; 
    •  ordinance vacating school sites completed in February never sent to county for processing;
    •  Agreement for retention of Bond Counsel for City received January 2009 never processed; 
    •  Agreement for retention of City engineer, Remington and Vernick received January 2009 never processed;  
    •  Recycling Tonnage Agreement received Jan. 23 and again March 27^th, 2009 never processed; 
    •  No response to inquiries of  4/17, 5/8 and 6/10 2009 regarding Comcast renewal; 
    •  May and June 2009 Clerk monthly reports for State not completed; 
    • January, February, March, April, May and June 2009 Clerk monthly bank account statements not done; 
    • No response to emails from HDSRF;
    • OPRA requests from April, May and June never completed or responded to;  
    • No phone messages returned or responded to from June 2^nd until July 13^th, 2009; 
    • No response to street light request; 
    • Benecard Prescription agreement never returned and no resolution completed; 
    • Personnel forms from appointment of  Plumbing Inspector March 2009 never completed; 
    • No response to NJ Transit request for bus stop on Broadway between Mercer and Middlesex.  

38. Disciplinary Charges for this conduct have not been filed since Kain left the workplace on or about July 13, 2009 and never returned.

39. Since Kain has been out of the workplace the City has utilized the Assistant Clerk, Kathy Jentsch, to perform all duties Kain previously performed.

1. Ms. Jentsch has performed all duties of the Clerk and Assistant Clerk since July 13, 2009.
2. There are no other full-time employees in the Clerk’s office to perform Kain’s duties.
3. The City has been caused to incur additional costs related to the additional duties performed by Ms. Jentsch and provided an increased salary stipend for Ms. Jentsch.
4. The City’s ability to operate efficiently and respond to requests by the public have been backlogged and/or delayed because of operational issues in the Clerk’s office due to Kain’s absence. This backlog was compounded and made worse by the status under which Kain left the Clerk’s office.  Mr. Kain himself admits his absence likely compounded the Clerk’s office operational issues.  See Kahn’s answer at paragraphs 40-45.
5. The City’s ability to complete the tasks generally required of the Clerk’s office such as processing resolutions, minutes, ordinances, advertising, licensing, processing contracts, and other duties have been backlogged and/or delayed because of operational issues in the Clerk’s office due to Kain’s absence.  
6. In summary, while Ms. Jentsch has performed admirably, the Clerk’s office has been functioning without its full-time Clerk and with 50% of its normal full-time staffing for over five months at this time.  

Again, these facts are all undisputed.

LEGAL ARGUMENT

1.  STANDARD FOR REMOVAL OF A MUNICIPAL CLERK

N.J.S.A. 40A:9-133.7 governs the removal of tenured municipal clerks such as Mr. Kain and provides in relevant part that a municipal clerk,

b. …..  shall not be removed there from for political reasons but only for good cause shown and after a proper hearing before the director or the director's designee. The removal of a registered municipal clerk shall be only upon a written complaint setting forth with specificity the charge or charges against the clerk. (emphasis added).

While there is no statutory definition of “good cause”, it has been defined by the Courts.  The “good cause” standard was analyzed in Borough of Newfield v. Moynihan, 94 N.J.A.R.2d (CAF), regarding the removal of a tax collector, also subject to the same good cause standard as a clerk.  The Court cited the most conclusive statement of “good cause” for removal of a public official found in Golaine v. Cardinale, 142 N.J. Super. 385 (Law Div. 1976), aff'd, 163 N.J. Super. 453 (App. Div. 1978). The Court explained “cause” means such cause as is plainly sufficient under the law and sound public policy and has reference to a substantial cause touching qualifications appropriate to the office or employment or to its administration, and it necessarily implies such degree of misconduct or culpability on the part of the office holder as clearly implicates the public interest in precluding his continuance in that particular office. Id. at 396. It is the element of fault which conceptually distinguishes removal from office from all other causes resulting in a vacancy in office. Id.  The Court went on to state at 397-98:

There are certain types of culpable official conduct which are so patently inimical to the public interest and to the public trust upon which the office is predicated that they will, per se, not only justify but virtually compel removal, such as, for example, criminal misconduct in office or misconduct which proceeds from a corrupt or other improper motive. Because, however, removal for cause is a remedial proceeding, that cause and the culpability upon which it is based need not necessarily involve either commission of a crime or an improper purpose. Where the dereliction charged, therefore, is not of such intrinsically reprehensible character, the determination of whether a specific act or omission constitutes cause for removal requires an evaluation of the conduct in terms of its relationship to the nature of the office itself, and, in that context, an appraisal of the actual or potential impairment of the public interest which may be expected to result from the conduct in question.” ... the point, of course, is that the charged dereliction, to constitute cause, must be itself an act of misfeasance or nonfeasance, and must be, further, an act which, in view of the duties and obligations of the office, substantially disadvantages the public....These derelictions on the part of respondent must be evaluated in terms of their relationship to the nature of the office of and an appraisal must be made of the actual or potential impairment of the public interest which may be expected to result from the conduct of [the employee]. 

See also Town Of West New York, Petitioner, Darren P. Maloney, 2010 WL 2235095, OAL DKT. NO. CAF 01344-09 (discussing good cause statutory standard for removal of chief financial officer). In Greenwood v. State Police Training Center, 127 N.J. 500 (1992), the Supreme Court addressed the definition of good cause and explained, [good cause] protects an employee in an employment context when the employee's dismissal is prompted by a legitimate business concern or poor job performance. Id. at 509-10. In contrast, good cause does not exist, and a termination would be arbitrary and unreasonable, if the employee's dismissal is grounded on factors irrelevant to job performance. Id. at 510. The Court in Greenwood indicated that, “although the good-cause standard eludes precise definition, courts ordinarily uphold findings of good cause when the employee's performance is deficient or when the employee creates a risk of harm to himself or herself or others.” Id. “An employer must present substantial objective evidence to meet the good-cause standard.” Id. at 510-11.
Courts have held that job abandonment is good cause for removal. See  In The Matter Of Daniel Nelson, Woodbine Developmental Center, 2010 WL 3934326, OAL DKT. NO. CSV 10407-09 (upholding removal since job abandonment constituted good cause).  The essence of this argument is that the “job abandonment rule” is intended to cover those absences which are “unwarranted and unjustifiable” or absences taken without notice of the reason and when an employee expects to return. See Cumberland County Welfare Board v. Jordan, 81 N.J. Super. 406 (App. Div. 1983). See also Loraine White v. Rutgers University, 2002 WL 31936072, OAL DKT. NO. LID 4874-01 (affirming arbitrator’s decision that employee’s failure to return to work constituted job abandonment and good cause for termination).

1.  THE UNDISPUTED FACTS IN THE RECORD DEMONSTRATE GOOD CAUSE

FOR MR. KAIN’S REMOVAL

Here, there is no dispute Mr. Kain was not present at work and was unable to perform the functions of his job beginning on July 13, 2009. There is no dispute that he exhausted all sick, vacation, personal accrued paid time to which he was entitled. There is no dispute that thereafter the City provided Mr. Kain with an additional 12 weeks of job protected FMLA leave which expired on December 7, 2009. There is no dispute Mr. Kain did not return to work on December 7, 2009.  At this point, when the City filed its complaint seeking removal, Kain had been continuously absent from work and unable to perform his job for almost 5 months. Even at that point, as of December 7, 2009, Mr. Kain was still not able to advise the City when he may be able to return to work and/or perform his job duties. 

Thereafter, the City heard absolutely nothing from Mr. Kain until April 21, 2010 when suddenly his attorney sent a letter stating he intended to return to work and on April 22, 2010 when Mr. Kain appeared in the City’s offices, now more than 9 months after he last worked, presenting a physician’s note and stating he was able to return to work. 

Based upon the undisputed evidence, there can be no question that Mr. Kain was at all times properly notified of his usage and exhaustion of accrued time and FMLA job-protected leave, as well as the consequences if he did not return to work on December 7, 2009. The City had no legal obligation to hold Mr. Kain’s position beyond December 7, 2009 and, under the FMLA, an employer has an absolute right to terminate an employee who does not return from leave. See Katekovich v. Team Rent A Car of Pittsburgh, Inc., 36 Fed.Appx. 688, 690 (3d Cir. 2002) (“If the employee is not able to return to work after twelve weeks, however, the employer may terminate the employee…”); Anderson v. DSM N.V., 589 F.Supp.2d 528, n.9 (D.N.J. 2008) (employer is free to terminate employee who is unable to return to work at the expiration of the FMLA leave period);  Hearst v. Progressive Foam Technologies, Inc., 682 F.Supp.2d 955, 964 (E.D.Ark. 2010) (“If an employee fails to return, prior to, or immediately upon, the expiration of qualified FMLA leave, the right to reinstatement dissipates.”). 

In addition, this Court has held that “a municipal entity is not required to continuously keep open a position until an employee decides for one reason or another that he or she is capable of performing the full duties of that position.” Pribramsky v. Little Egg Harbor Tp. Police Dept., 96 N.J.A.R.2d (CSV) 282, OAL Docket No. CSV 4610-94 (emphasis added) (finding job abandonment and good cause for removal after employee failed to return to work from medical leave).

In short, Mr. Kain was unable to perform his job duties and failed to appear for work for over 9 months. The City has clearly shown excessive and chronic absenteeism, failure and inability to perform and job abandonment. 

While there is no precise definition of the amount of time an employee must fail to report to work to constitute job abandonment, there is a variety of sources which address the issue. First, while not directly applicable here, N.J.A.C. 4A:2-2.2 defines job abandonment as a civil serve employee being absent from work without authorization for 5 or more days. In In The Matter of Lasheenia Isaac, Department of Human Services, Ancora Psychiatric, 2010 WL 2977421, OAL DKT. NO. CSV 8611-09, the Court affirmed removal for job abandonment where an employee did not return for 2 months after an approved leave of absence and explained, 

An employer has the legitimate right to expect that its employees will attend work when scheduled. Aquinas v. Fed. Express Corp., 940 F. Supp. 73, 78 (S.D.N.Y. 1996); Svarnas v. AT&T Commc'ns, 326 N.J. Super. 59, 78 (App. Div. 1999) (“regular, reliable, and predictable attendance is a necessary element of most jobs. An employee who does not come to work cannot perform any of her job functions, essential or otherwise.”). Attendance at the job when scheduled is a hallmark requirement for an employee, and, as such, where the employee fails to attend without authorization, the employer is empowered to act to terminate the employment….

a governmental entity has the right to expect that its employees will report to work and perform the duties assigned to them. To permit employees to fail to report to work when they are required to do so would create chaos in carrying out essential governmental functions and would greatly harm public officials in their attempts to carry out their duties and responsibilities. As found above, appellant failed to return to work after the expiration of her approved leave of absence.

Applying these principles, courts have repeatedly held an employee’s failure to return from an approved medical leave constitutes job abandonment.  See, e.g., In The Matter Of Lasheenia Isaac, Department Of Human Services, Ancora Psychiatric , 2010 WL 2977421, OAL DKT. NO. CSV 8611-09 (upholding removal after employee failed to return to work for 2 months after approved leave of absence); In the Matter of Paul Bishop, Essex County, 2007 WL 7321027,  OAL Docket No. CSV 12113-05 (upholding removal and finding of job abandonment after employee failed to report to work for approximately 2 months); Wayne Kozak, Appellant, Woodbridge Developmental Center, Respondent, 2005 WL 1500939, OAL DKT. NO. CSV 6084-03 (upholding job abandonment charges where employee did not appear for work for 8 days and was given notice of all FMLA/FLA rights); In the Matter of Rudolph Shaw, Monmouth County, 2004 WL 2652467, OAL Docket No. CSV 410-03 (upholding job abandonment where employee did not return for 21 days after expiration of approved leave of absence); Tina Grover-Dietz, Appellant, V. Greystone Park Psychiatric Hospital, Respondent, 2001 WL 661256, OAL DKT. NO. CSV 1089-00 (upholding job abandonment where employee failed to return to work after approved 5 month medical leave of absence); In the Matter of Joanne Lathan, 1999 WL 33843674, OAL Docket No. CSV 10086-97 (upholding job abandonment where employee failed to return after medical leave); In The Matter Of Daniel Nelson, Woodbine Developmental Center, 2010 WL 3934326, OAL DKT. NO. CSV 10407-09 (upholding removal since job abandonment constituted good cause);    In the Matter of Vincent Greenfield, Bayside State Prison, Department of Corrections, 2007 WL 2429673, OAL CSV 4473-05 (affirming removal for failure to return to work after approved leave of absence even though employee’s absence was due to disability and incarceration); Tierney v. State Dept. of Treasury, 92 N.J.A.R.2d (CSV) 229, OAL Docket No. CSV 1477-90 (upholding job abandonment where long term employee failed to return from medical leave).

Quite frankly, research has not revealed any instance where the employee’s absence from the workplace constitutes the amount of period of time which is at issue in this case. The closest was in In the Matter of Richard Troiano, 2002 WL 32590744, OAL Docket No. CSV 8266-00 where the Court held that the employee’s failure to return to work and failure to provide a medical note from a physician clearing him to return to work for over 8 months constituted job abandonment. 

In summary, the City submits the undisputed evidence shows Mr. Kain failed to return from his approved FMLA leave on December 7, 2009 and was unable to state when he might be able to return to work. The undisputed evidence further shows that he never showed up at the workplace again until another 5 months later on April 22, 2010 with a return to work note --- at this point he had been out of work for over 9 months and these removal proceedings had already been commenced. Under these facts and circumstances, it is clear that the City has show excessive and chronic absenteeism, failure and/or inability to perform, and job abandonment.

CONCLUSION

For all the reasons set forth herein, the City respectfully requests the Court affirm Mr. Kain’s removal from employment.

BROWN & CONNERY, LLP

Attorneys for Petitioner, 

The City of Gloucester