Why it’s Difficult to Fire a Government Employee

Insurance Fraud Conviction Requires Dismissal of Government Employee

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Posted on August 25, 2021 by Barry Zalma

Fatu Rimbert appealed from a November 12, 2019 final administrative decision of the Civil Service Commission (Commission) affirming her removal as a family service worker for the County of Essex (County), Department of Citizen Services, Division of Family Assistance and Benefits (DFAB). In The Matter Of Fatu Rimbert, Essex County Department Of Citizen Services, No. A-1684-19, Superior Court of New Jersey, Appellate Division (August 18, 2021) was asked to reinstate the job from which she was fired.

FACTS

On November 28, 2017, the County removed Rimbert as a family service worker pending criminal charges for two counts of insurance fraud, two counts of impersonation, and one count of theft by deception. As part of a negotiated plea, Rimbert pleaded guilty to third-degree insurance fraud. She was sentenced to probation and ordered to pay restitution.

Following her guilty plea, the County sought to permanently remove Rimbert from her employment because, among other things, she was convicted of a crime and other sufficient causes associated with violation of County policies and procedures.

Rimbert appealed her removal to the Commission, and the matter was transmitted to the Office of Administrative Law.

An administrative law judge (ALJ) was assigned to the matter and held a hearing. The ALJ heard testimony from two County officials familiar with Rimbert’s removal from her job. According to the head of the DFAB, family service workers identify financial resources for applicants requesting benefits from other governmental agencies. These individuals review sensitive documents to determine an applicant’s financial eligibility for governmental assistance. The documents reviewed by family service workers include social security information, tax information, birth certificates, and other confidential family information. Further, family service workers have access to databases containing this information and must access the information to perform their job. Because public employees have a fiduciary responsibility Rimbert’s crime impacted her ability to perform her job.

The County’s written policy stated, “conduct that interferes with the operation of the government, discredits the County of Essex, or is offensive to the public or fellow employees shall not be tolerated.” Under the policy, an employee who exhibits such behavior or conduct “may be subject to disciplinary action, including dismissal.”

The ALJ sustained three of the County’s four charges against Rimbert. He sustained the charge of conduct unbecoming a public employee because Rimbert’s conviction for insurance fraud, a crime involving dishonesty, had a tendency to destroy the public’s respect for governmental employees and confidence in the operation of governmental services. He also sustained the charge of other sufficient causes, finding Rimbert’s conviction constituted a violation of the County’s policies and procedures. Further, the ALJ sustained the charge of conviction of a crime based on Rimbert’s guilty plea.

However, the ALJ held the County failed to prove the only available jobs required access to client personal and financial data. After sustaining three of the County’s charges, the ALJ reversed the County’s decision to remove Rimbert from her job. He found the County “ha[d] not proven by a preponderance of the evidence that Rimbert’s criminal conviction automatically result[ed] in her ‘inability to perform her duties’ as contained in the FNDA.”

The Commission, contrary to the finding of the ALJ,  observed “the appropriate inquiry in evaluating the charge of inability to perform duties is whether the employee is able to perform all of the essential duties . . . in the employee’s job title” and “does not require an appointing authority to prove that it has no other jobs the subject employee could perform.” Because N.J.S.A. 40A:9-2.1(e) bars Rimbert from accessing federal tax information as a result of her criminal conviction, the Commission concluded she was unable to perform her responsibilities as a family service worker. Further, the Commission determined Rimbert’s conviction for insurance fraud raised significant questions whether she should be entrusted with confidential tax, financial, medical, and vital statistics information, which she was required to access and review as part of her job responsibilities.

In addition, the Commission recognized some disciplinary infractions are so serious removal is appropriate notwithstanding a largely unblemished prior record. Even if Rimbert had an unblemished disciplinary record, the Commission concluded the seriousness of her misconduct warranted removal as the appropriate penalty.

ANALYSIS

The burden is upon the appellant to demonstrate grounds for reversal. An appellate court will not disturb an administrative agency’s determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence.

The court’s deference to agency decisions applies to the review of disciplinary sanctions as well. In light of the deference owed to such determinations, when reviewing administrative sanctions, the test is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness. Certain infractions are so serious as to justify the penalty of removal even where the employee has a relatively clean disciplinary record.

Having reviewed the record, the court concluded that it could discern no basis for disturbing the Commission’s decision to remove Rimbert from employment as a family service worker after her criminal conviction for insurance fraud. Her crime involved dishonest conduct directly impacting her job responsibility to preserve trust and confidence on behalf of applicants seeking governmental benefit assistance. It was Rimbert’s dishonest conduct, insurance fraud, that led to her dismissal from employment. Under the circumstances, the Commission’s determination, based on the undisputed evidence in the record, was not arbitrary, capricious, or unreasonable.

ZALMA OPINION

There is something very wrong in the system of dealing with employees when a governmental entity is required to conduct an administrative hearing, then a hearing before an Administrative Law Judge who bent over backward to find a way to keep an insurance fraud criminal in her state job, a decision made by the commission, and then deal with an appeal before it could effectively fire a person convicted of the crime of insurance fraud from a job that allowed her to view the personal financial and tax records of citizens. Insurance fraud is a serious crime of moral turpitude and no one convicted of that crime should be allowed to work for a governmental entity and there should be no need to jump through multiple loops to fire the convicted criminal.

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© 2021 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders.

He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business.

He is available at http://www.zalma.com and zalma@zalma.com. Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award. Over the last 53 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma;  Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/  The last two issues of ZIFL are available at https://zalma.com/zalmas-insurance-fraud-letter-2/  podcast now available at https://podcasts.apple.com/us/podcast/zalma-on-insurance/id1509583809?uo=4