Re: Phony POW Claims Wreak Havoc

Date: March 30, 2004

"Judge: Kearny wrong in firing worker


By Nancy Benecki
Journal staff writer

KEARNY - A town employee who was fired two years ago for trying to discredit the town administrator must be rehired and given nearly a year's back pay, a judge has ruled.

The Town Council is appealing the ruling, handed down last month by Administrative Law Judge Carol I. Cohen, that recreation superintendent Philip Martone should not have been fired but instead suspended without pay for six months.

Martone had helped spread a rumor that Town Administrator Joseph D'Arco was falsely claiming to be a former prisoner of war, apparently "to force (D'Arco's) resignation or removal from his position," according to a 53-page report issued March 1 from the judge.

Cohen, while agreeing that Martone had acted improperly, said that termination was "too severe" a punishment. She said that Martone should not only be rehired, but also receive back pay, starting from the date he would have completed the six-month suspension. When he was terminated 2002, Martone's annual base salary was $62,695, town officials said.

Cohen's ruling was forwarded to the state's Merit System Board, which has 45 days to review the findings and either accept or modify them, according to Mayor Al Santos, who added the town will "take exception" to Cohen's decision.

"We think there is an established record of progressive discipline and significant infractions that justify the course of action that the town took," Santos said.

Martone's lawyer, however, was pleased with the judge's decision.

"We're as satisfied with the decision as we can be," said Anthony D'Elia, of the firm Chasan and Leyner in Secaucus, which is representing Martone in the matter. "He has worked there for 18 years. They fired him 17 months ago. We thought that he either should have been fully reinstated or suffered some discipline for what occurred, but not terminated."

While the report states another town employee, Jack Savage, eventually sent a letter of apology to D'Arco, Martone did not, nor did he participate in the Kearny Police Department's investigation into the incident, based on advice from his sister, a Florida attorney.

D'Arco declined to comment for this story, directing questions to attorney Robert Merryman, of the firm Apruzeese McDermott Mastro & Murphy, which represents the town in the matter.

The termination, for "conduct unbecoming a public employee," stems from a series of incidents from February to May 2002, when Martone collaborated with Savage to spread a rumor that D'Arco was falsely claiming to be a former POW.

According to the report, the rumor started when D'Arco told an administrative clerk in the Recreation Department that he wanted to order more POW/MIA flags for the town and that, "if it were up to him, he would have put POW flags everywhere."

The clerk, Patricia Trueba, then asked D'Arco if he had been a POW, and he told her that he didn't want to discuss it. From that, she assumed that he had been, the report said.

She later told Savage about the conversation, and soon word spread among the town employees that D'Arco was claiming to be a former POW. Over the next several months, Martone and Savage questioned Trueba and other town employees as to whether or not D'Arco had ever made the claim; none said he did.

Nevertheless, Savage and Martone then told former Councilman Peter Cicchino and Councilwoman Carol Jean Doyle that D'Arco was lying about being a former POW, and eventually sent a letter to the mayor and council that also questioned D'Arco's history, the report said.

D'Arco himself refused to talk to the two men, saying their questions about his background were not business related. Instead, he asked the Police Department to do an internal affairs investigation into Martone and Savage for attempting to defame him, Santos said.

Kearny Police Capt. Edward Rygiel conducted the investigation, which the mayor said is standard procedure because the issue was "potentially criminal."

"To enlist other employees to create a fabricated story, to try to slander and have someone else fired, that's a serious offense," Santos said. "And to use other town employees to do so, that's a serious offense."

After the internal investigation, Savage was suspended from his job for 90 days and had to take an anger management class. Martone, who had prior work-related violations, was fired.

Cohen faulted the town for applying different degrees of discipline to the two employees for essentially the same infraction, and found that Martone should not have been fired because municipalities must employ "progressive discipline" in punishing employees.

In the report, town officials said Savage's discipline was less severe than Martone's based on his 35 years of a "good discipline record as a public employee" and due to the letter of apology he sent to D'Arco. Savage only served seven days of his 90-day suspension, with the rest held during a year on probation.

Cohen wrote that while based on his record, "Mr. Martone could certainly not be described as a model employee," based on the case of the Town of West New York v. Harry Bock and Department of Civil Service 38, termination cannot be sustained based on progressive discipline.

©2004 The Jersey Journal"