By John Burton
RED BANK – A former borough Public Works Utility employee who has been unsuccessful in getting borough officials to reverse his termination, has taken what he said is the only option left to him – suing the municipality.
“I didn’t have anything else I could do,” said Jason Burke, the former employee, whose unemployment is running out and is having difficulty in obtaining new employment.
Burke, through Red Bank attorney Bernard M. Reilly, has filed a tort claim notice, serving borough officials of their intention of suing, seeking $2 million in damages, alleging they violated state and federal law by firing Burke, citing the plaintiff ’s disabilities.
A tort claim notice is required before bringing suit for personal injury against a public agency.
“I just think it is clearly unjust and shortsighted,” Reilly said of officials’ alleged treatment toward Burke and Douglas Howard, another longstanding borough employee recently fired but not a plaintiff to this suit.
“We had hoped to get the town and the governing body to take a closer look at this,” Reilly said. But Borough Administrator Stanley Sickels appears intractable in his position and union representatives have been seemingly unable or unwilling to offer any assistance, Reilly charged.
Sickels and Mayor Pasquale Menna declined to comment on the situation and the pending lawsuit citing the constraints of talking publicly about municipal personnel matters.
Indeed, any public comment could become an issue in future litigation, given the provisions of the Rice decision. That provision, based upon a 1977 Superior Court decision, involved public officials’ public discussions on personnel matters that might adversely affect a specific employee. Traditionally, officials are reluctant to comment publicly when litigation is threatened, holding off discussions until a confidential executive session can be convened. Kevin Tauro, president of Communications Workers of America Local 1075, representing borough union employees, did not return the numerous phone calls to his Atlantic Highlands offices.
Barry D. Isanuk, the union’s lawyer, said he wouldn’t offer any comment concerning legal matters.
The matter in dispute concerns a Jan. 23, 2014 notice sent by Sickels informing Public Works employees they would have to obtain a commercial driver license (CDL). The department would make available the license training manual and pay for the $125 cost for the initial test. Any department employee who failed to get a CDL by Jan. 1, 2015, “will no longer meet the minimum requirements of their employment and their employment will be terminated,” the administrator’s memo stated.
Bruce Padula, the borough’s labor attorney, did not respond to requests for comment for this story. But in a letter Padula sent to state Department of Labor and Workforce Development related to Burke’s assertions, the lawyer stated: “The Borough has strong public safety and emergency reasons for requiring all DPW (Department of Public Works) employees possess a valid CDL license. After consultation with the Union, the Borough exercised its managerial prerogative to require all DPW employees to obtain a CDL – it is a prerequisite for all DPW employees to have a valid CDL license.”
RED BANK – A former borough Public Works Utility employee who has been unsuccessful in getting borough officials to reverse his termination, has taken what he said is the only option left to him – suing the municipality.
“I didn’t have anything else I could do,” said Jason Burke, the former employee, whose unemployment is running out and is having difficulty in obtaining new employment.
Burke, through Red Bank attorney Bernard M. Reilly, has filed a tort claim notice, serving borough officials of their intention of suing, seeking $2 million in damages, alleging they violated state and federal law by firing Burke, citing the plaintiff ’s disabilities.
A tort claim notice is required before bringing suit for personal injury against a public agency.
“I just think it is clearly unjust and shortsighted,” Reilly said of officials’ alleged treatment toward Burke and Douglas Howard, another longstanding borough employee recently fired but not a plaintiff to this suit.
“We had hoped to get the town and the governing body to take a closer look at this,” Reilly said. But Borough Administrator Stanley Sickels appears intractable in his position and union representatives have been seemingly unable or unwilling to offer any assistance, Reilly charged.
Sickels and Mayor Pasquale Menna declined to comment on the situation and the pending lawsuit citing the constraints of talking publicly about municipal personnel matters.
Indeed, any public comment could become an issue in future litigation, given the provisions of the Rice decision. That provision, based upon a 1977 Superior Court decision, involved public officials’ public discussions on personnel matters that might adversely affect a specific employee. Traditionally, officials are reluctant to comment publicly when litigation is threatened, holding off discussions until a confidential executive session can be convened. Kevin Tauro, president of Communications Workers of America Local 1075, representing borough union employees, did not return the numerous phone calls to his Atlantic Highlands offices.
Barry D. Isanuk, the union’s lawyer, said he wouldn’t offer any comment concerning legal matters.
The matter in dispute concerns a Jan. 23, 2014 notice sent by Sickels informing Public Works employees they would have to obtain a commercial driver license (CDL). The department would make available the license training manual and pay for the $125 cost for the initial test. Any department employee who failed to get a CDL by Jan. 1, 2015, “will no longer meet the minimum requirements of their employment and their employment will be terminated,” the administrator’s memo stated.
Bruce Padula, the borough’s labor attorney, did not respond to requests for comment for this story. But in a letter Padula sent to state Department of Labor and Workforce Development related to Burke’s assertions, the lawyer stated: “The Borough has strong public safety and emergency reasons for requiring all DPW (Department of Public Works) employees possess a valid CDL license. After consultation with the Union, the Borough exercised its managerial prerogative to require all DPW employees to obtain a CDL – it is a prerequisite for all DPW employees to have a valid CDL license.”
Jason Burke, 36, a Neptune resident, had been working for Public Works for 15 years; Douglas Howard, 57, a Red Bank, resident, has also worked for the department for 15 years. Both men were hired and worked as department laborers/maintenance workers, positions they said that don’t require them to operate vehicles. Burke said he was hired before he even had a personal driver’s license. “We would ride on them,” Howard said of the department’s trucks, including trash hauling vehicles, before the municipality privatized trash collection. “But we never drove them.”
Their assignments involved maintenance work in borough parks, in the municipal complex at 90 Monmouth St., on road crews, recycling yard, among other tasks, the men explained.
Both men failed to obtain the commercial licenses after taking the test multiple times and were subsequently fired from Public Works Utility.
Burke had actually been rehired by the borough and given an additional year to secure the license. However, he had lost seniority and had to accept a lower pay rate. Burke was asked to agree to the conditions without having had the chance to confer with counsel, Reilly alleged.
Burke said he passed the test’s written portion but failed the driving test and was again fired. Both men maintain there are extenuating circumstances involved in their inability to pass the state-issued test.
According to Burke and his attorney, Burke is learning disabled, having suffered neurological/brain trauma either prenatally or at an early age. Attorney Reilly said his client’s condition is documented. The condition has resulted in Burke experiencing delayed auditory processing; Reilly explaining his client needs more repeated instructions to learn particular tasks than average people. Burke had attended and graduated from the Harbor School, Eatontown, which provides educational programs for students with special needs.
Howard said he has a “slow learning process” that required him to take special classes in the public school district when he was a child. “I could get by on certain things but my memory is not too good,” he said.
According to Reilly, borough officials violated the state Law Against Discrimination, the federal Americans with Disabilities Act and the federal Rehabilitation Act with their actions against Burke.
Reilly presently does not represent Howard.
Under those laws, Reilly argued, his client “is entitled to reasonable accommodation for his disability.”
In a letter sent to borough officials, “Claimant (Burke) functioned properly for 15 years without a CDL and it was never, and is not, an essential requirement of the job of Public Works Laborer. No reasonable accommodation was offered or done by the Borough or Mr. Sickels.”
Burke and Howard said there were other missteps by the borough department: They alleged the driving/test manuals they were given to study were old and had outdated and now incorrect information that contributed to wrong test answers; the Public Works employee designated to teach voluntary classes was unqualified for it; and in one instance the department truck used for the operating test broke down, leading to another test failure for Burke.
Their assignments involved maintenance work in borough parks, in the municipal complex at 90 Monmouth St., on road crews, recycling yard, among other tasks, the men explained.
Both men failed to obtain the commercial licenses after taking the test multiple times and were subsequently fired from Public Works Utility.
Burke had actually been rehired by the borough and given an additional year to secure the license. However, he had lost seniority and had to accept a lower pay rate. Burke was asked to agree to the conditions without having had the chance to confer with counsel, Reilly alleged.
Burke said he passed the test’s written portion but failed the driving test and was again fired. Both men maintain there are extenuating circumstances involved in their inability to pass the state-issued test.
According to Burke and his attorney, Burke is learning disabled, having suffered neurological/brain trauma either prenatally or at an early age. Attorney Reilly said his client’s condition is documented. The condition has resulted in Burke experiencing delayed auditory processing; Reilly explaining his client needs more repeated instructions to learn particular tasks than average people. Burke had attended and graduated from the Harbor School, Eatontown, which provides educational programs for students with special needs.
Howard said he has a “slow learning process” that required him to take special classes in the public school district when he was a child. “I could get by on certain things but my memory is not too good,” he said.
According to Reilly, borough officials violated the state Law Against Discrimination, the federal Americans with Disabilities Act and the federal Rehabilitation Act with their actions against Burke.
Reilly presently does not represent Howard.
Under those laws, Reilly argued, his client “is entitled to reasonable accommodation for his disability.”
In a letter sent to borough officials, “Claimant (Burke) functioned properly for 15 years without a CDL and it was never, and is not, an essential requirement of the job of Public Works Laborer. No reasonable accommodation was offered or done by the Borough or Mr. Sickels.”
Burke and Howard said there were other missteps by the borough department: They alleged the driving/test manuals they were given to study were old and had outdated and now incorrect information that contributed to wrong test answers; the Public Works employee designated to teach voluntary classes was unqualified for it; and in one instance the department truck used for the operating test broke down, leading to another test failure for Burke.
In the final analysis, however, Padula in his letter to state labor officials argued: “It is clear that Applicant (Burke) cannot blame his failure to pass the licensing test over the course of two (2) years on anyone but himself. As a direct result of Applicant’s voluntary actions in failing to obtain the required prerequisite of possessing a valid CDL license, the Borough ended the employment relationship.”
What is unique about Red Bank’s requirement is that it was required retroactively. Neighboring Middletown some time back had instituted the policy of requiring all public works employees hired after the policy was initiated to have a CDL; existing employees were grandfathered and exempt and there remains some of the approximately 60 employees without the license, according to Middletown administrator Anthony Mercantante.
Other area municipalities don’t require the license, but strongly recommend employees obtain it, as a prerequisite for promotions and department advancements. It’s to the employee’s advantage to have the license, explained Rumson Mayor John Ekdahl, because during a snow storm, “It’s bet- ter to be driving the plow than pushing the shovel.”
Borough officials had initially contested Burke on his unemployment insurance claim, charging the employee by being unable to secure the license “left work without good cause,” and wasn’t eligible for unemployment. In June, the borough was appealing the state’s decision to allow Burke unemployment benefits, arguing “an employee can only collect if the leaving was through no fault or act of their own,” and by not securing the license, Burke, in effect, was voluntarily leaving his job, Padula’s letter stated.
What is unique about Red Bank’s requirement is that it was required retroactively. Neighboring Middletown some time back had instituted the policy of requiring all public works employees hired after the policy was initiated to have a CDL; existing employees were grandfathered and exempt and there remains some of the approximately 60 employees without the license, according to Middletown administrator Anthony Mercantante.
Other area municipalities don’t require the license, but strongly recommend employees obtain it, as a prerequisite for promotions and department advancements. It’s to the employee’s advantage to have the license, explained Rumson Mayor John Ekdahl, because during a snow storm, “It’s bet- ter to be driving the plow than pushing the shovel.”
Borough officials had initially contested Burke on his unemployment insurance claim, charging the employee by being unable to secure the license “left work without good cause,” and wasn’t eligible for unemployment. In June, the borough was appealing the state’s decision to allow Burke unemployment benefits, arguing “an employee can only collect if the leaving was through no fault or act of their own,” and by not securing the license, Burke, in effect, was voluntarily leaving his job, Padula’s letter stated.
“That was Stanley’s way of spinning it,” Burke responded, referring to borough administrator Sickels.
In addition to money woes, Burke has lost his medical insurance coverage and said he is having difficulty paying for prescriptions for existing chronic medical conditions.
“I don’t know what I’m going to do. Things have gotten very difficult for me and my family,” Burke acknowledged about his current situation as he continues to look for a new job.
Howard, too, has yet to find a new job, conceding he’s at the end of his financial rope, relying on support from his elderly mother.
Burke was scheduled to meet with union representatives on Friday, July 29.
Reilly decided on the $2 million amount based upon “a reasonable estimate” given Burke’s age and the approximately 25 productive years of employment ahead of his client, factoring in salary and benefits. But for Burke and likely Howard, “If they got offered their jobs back, they would accept it and go back willing,” but at their highest rate of pay and seniority, Reilly offered.
“I think the alternative is they’re (Red Bank) going to get themselves in a longwinded lawsuit that’s not going to help anybody,” Reilly said. “Particularly the taxpayers.”
In addition to money woes, Burke has lost his medical insurance coverage and said he is having difficulty paying for prescriptions for existing chronic medical conditions.
“I don’t know what I’m going to do. Things have gotten very difficult for me and my family,” Burke acknowledged about his current situation as he continues to look for a new job.
Howard, too, has yet to find a new job, conceding he’s at the end of his financial rope, relying on support from his elderly mother.
Burke was scheduled to meet with union representatives on Friday, July 29.
Reilly decided on the $2 million amount based upon “a reasonable estimate” given Burke’s age and the approximately 25 productive years of employment ahead of his client, factoring in salary and benefits. But for Burke and likely Howard, “If they got offered their jobs back, they would accept it and go back willing,” but at their highest rate of pay and seniority, Reilly offered.
“I think the alternative is they’re (Red Bank) going to get themselves in a longwinded lawsuit that’s not going to help anybody,” Reilly said. “Particularly the taxpayers.”
