UNION — A decision to fire an animal control officer in May 2011 came back to haunt the township recently when an administrative law judge recommended to the state civil service board the former employee should be rehired and receive all back pay.
In question is whether the state civil service will agree with the administrative law judge who heard the appeal filed by former township animal control officer James Kielwasser.
Kielwasser was put on administrative leave in April 2011 after it was discovered by a resident that he had a criminal record involving drug manufacture and distribution. The former ACO, or animal control officer, was also found to be in violation of several health department rules involving the release of a “questionable” dog from the animal shelter without proper paperwork being approved.
Adding yet another layer of intrigue were questions the township employee’s mother, Antoniette Kielwasser, the assistant township clerk, pulled strings to ensure a police background check never took place. However, this was later discounted. According to information obtained in 2011 by LocalSource, the township was not aware that ielwasser had a record because background checks are only required for police and fire department applicants, not other township employees.
In May 2011, though, the Union Board of Health decided to change that by unanimously approving and passing a resolution so back ground checks would take place for all present and future health department personnel.
According to a transcript of the administrative law hearing that took place in December, the decision to fire Kielwasser was based on the fact he previously had been charged in 1999 with six counts of possession with intent to distribute. He subsequently pled guilty to the charge and was sentenced in January 2001 to 180 days in county jail and placed on three years probation.
In April 2001 Kielwasser applied for the position with the township and was hired as a laborer from 2002 to 2004. Between 2004 and 2005 he worked as an engineering aide, and later, between 2005 and 2007, worked in accounts payable and receivable.
In 2007 Kielwasser agreed to leave his permanent civil service position and transfer to the township health department in order to take on the responsibilities of the newly created position of animal control officer.
Kielwasser subsequently obtained the required state certification as an ACO in February 2007, followed by additional certification in May 2007 as an animal cruelty investigator. Until 2011, when his criminal record was brought out by a resident, the court noted the township had never brought any previous disciplinary actions against the ACO.
The township argued in court that the discovery of Kielwasser’s criminal record would “significantly and negatively interfere with his ability to perform the duties of his position as ACO,” which was one of the reasons the ACO was fired. The administrative law judge disagreed.
“I conclude that it is not possible to determine in advance whether Kielwasser would be a credible witness in every case in which he may potentially need to provide testimony because the issue of whether his criminal background could be admitted into evidence or not must be determined on a case-by-case basis,” said Judge Imre Karaszegi Jr.
The judge also pointed out the New Jersey Supreme Court established a four-prong test that laid out what needed to be considered when determining whether a witness’s prior bad conduct could be considered. Among these was the fact the offense must be “relevant to the issue.”
Former Union Health Officer John Ferraioli, Kielwasser’s supervisor at the time, gave this further credence when he admitted the position of ACO did not even include a requirement to “testify in court.”
Ferraioli said during his testimony he was unable to cite an example of when Kielwasser was required to testify on any animal shelter-related summons in court.
The administrative law judge also found evidence of other crimes was not admissible.
As an example, Karszegi said “just because someone sold marijuana before, that does not mean he probably sold marijuana again.”
“Past conduct cannot be used to establish present conduct,” the judge noted in his decision.
Further, Karaszegi noted that after taking all testimony into consideration, he found the township had no policies and procedures in place concerning ACO’s and their duties and responsibilities. This, he added, eliminated any question of whether Kielwasser released a dog on a trial basis without the proper paperwork being approved.
Tuesday morning Township Administrator Ron Manzella said he could not comment on the matter because it was still being considered by the state civil service commission, but he did note the administrative law judge’s decision was only a recommendation, not an order.