In the Matter of Tony Mack,

In the Matter of Tony Mack, City of Trenton DOP Docket No. 2005-2317 (Merit System Board, decided December 6, 2006) The appeal of Tony Mack, a Municipal Recycling Coordinator with the City of Trenton, of the good faith of his layoff, effective December 8, 2004, for reasons of economy and efficiency, was heard by Administrative Law Judge Stephanie M. Wauters (ALJ), who rendered her initial decision on May 24, 2006 reversing the layoff. Exceptions were filed on behalf of the appointing authority and crossexceptions were filed on behalf of the appellant. Having considered the record and the ALJ’s initial decision, and having reviewed the testimony and evidence presented before the Office of Administrative Law (OAL), and having made an independent evaluation of the record, the Merit System Board (Board), at its meeting on December 6, 2006, did not adopt the ALJ’s findings of fact, conclusions or recommendation to reverse the layoff. Rather, the Board upheld the layoff and dismissed the appeal. DISCUSSION The undisputed facts of this matter indicate the following: Tony Mack served as a Municipal Recycling Coordinator for the City of Trenton 1 since the time of his hire on February 11, 1991. Originally, Trenton carried out all of its residential and commercial recycling in-house, using municipal employees for the work. At some point in time, Trenton turned over the residential recycling to Waste Management, Inc. It continued to carry out the commercial recycling as well as pick up recyclable paper from State office buildings via a contract with the State for this purpose. In 2001 and 2002, Trenton began looking at various operations of the City to determine if they were operating efficiently and effectively and, for certain functions, to determine if it made financial sense to continue performing the operations with City employees. The first operation looked at was the Fire Department, which resulted in consolidating the number of firehouses in July 2002. No one was laid off as a result of this consolidation. In the fall of 2002, the City looked at the areas of sanitation, recycling and tree maintenance for operational efficiency. These areas were chosen because they involved municipal services that had been looked at or privatized in many other municipalities. Operationally, the City’s Recycling Bureau had three full-time employees dedicated to the State Paper Contract and had their salaries partially funded from the State Recycling Trust 1 It is noted that the appellant has also been a Mercer County Freeholder since 1997. Fund. 2 The remaining full-time employees were involved in the commercial recycling program and had their salaries partially funded from the Regular Recycling Trust Fund. 3 The City’s operating budget funded the balance of salaries and benefits not covered by the Trusts. A chronology of events concerning the issues involved in the layoff is as follows: In 2000, discussions were started on purchasing a custom sorting machine for the recycling program. On June 20, 2002, a resolution was passed by the Trenton City Council to purchase the sorter. In August 2002, the sorter was ordered. On September 20, 2002, a purchase order for the sorter with a 10% down payment was signed by the appellant. As stated above, from September through December 2002, Trenton was analyzing several departments, including the Recycling Bureau, to determine if they were operating efficiently and effectively and to determine if there could be cost savings. In December 2002, Eric Jackson, the Director of Public Works, received an e-mail from Elana Chan, the Budget Officer, regarding payments made on the sorter and including information about the fiscal condition of the Recycling Trust Funds. In January 2003, Jane Feigenbaum, the Business Administrator, had an outside audit of the recycling program undertaken based upon information that employees of the Bureau were accepting and handling cash payments. The auditors were only charged with reviewing fiscal policies and procedures. They were not asked to make recommendations regarding privatizing the recycling program and did not do so. The Audit report was issued in April 2003. In the fall of 2003, the Mercer County Improvement Authority (MCIA) was required to put its recycling contract out for re-bidding as a result of litigation. In January 2004, Trenton indicated an interest in exploring what type of contract it could receive if it joined the MCIA recycling program. Trenton’s direct contract with Waste Management, Inc., for its residential recycling was also due to expire and Trenton considered combining all recycling with the MCIA. At this time, all municipalities in Mercer County with the exception of Trenton and one other municipality handled recycling through the MCIA. The State paper contract was not part of this bid. In June and July 2004, Trenton signed a contract with the MCIA to have MCIA administer Trenton’s recycling program and the City Council passed a resolution authorizing the contract with the MCIA. The contract was to begin on August 1, 2004. 2 The State Recycling Trust Fund was funded with revenues from a contract Trenton had with the State to pick up paper from State office buildings in Trenton. The Regular Recycling Trust Fund was funded with revenues raised from the commercial recycling performed by the City. 3 In September 2004, Trenton submitted to the Department of Personnel (DOP) a layoff plan for the employees of the Recycling Bureau. It provided for the reassignment of all non-supervisory employees to the Division of Property Maintenance into newly created positions that Trenton intended to fill and had a need for. It also provided for the reassignment of the Sanitary Supervisor back to the Sanitation Division from where he had come. Further, the plan called for the appellant’s layoff. As part of its pre-layoff procedures, Trenton met with the unions representing all the individuals in the Recycling Bureau. Trenton determined that as the appellant did not have any experience in any area of Public Works other than recycling, no positions were available for him where he met the qualifications. Additionally, it is noted that the DOP advised the appellant that he had no lateral or demotional rights to any other title. The appellant was laid off effective December 8, 2004. In support of her findings and conclusions that the layoff should be reversed, the ALJ determined that Trenton’s cost estimates erroneously showed the salaries of the individuals reassigned to other Divisions within the Department of Public Works as savings, even though these individuals continued to work for the City. The ALJ also found persuasive as a demonstration of bad faith the timing of various actions. In particular, she noted that the timing of an audit of the Recycling Bureau occurred when the appellant was on vacation. Additionally, the ALJ found that Feigenbaum testified that she had no idea who would lose their jobs in the dissolution of the Recycling Bureau at the same time she provided the Public Affairs Officer with information for a presentation to the City Council about the merits of having Trenton’s recycling performed by the MCIA. This information, as demonstrated in the memorandum produced at the hearing, indicated that all rank and file employees would be redeployed to jobs within the Department of Public Works and that “if asked,” the manager position was under review. Moreover, the ALJ found the timing strange that Jackson would approve the purchase of the sorting system for the Recycling Bureau at a cost of approximately $220,000, and shortly thereafter decide to dissolve the Recycling Bureau. Additionally, the ALJ found incredible that the decision to privatize the Recycling Bureau was made by Feigenbaum and Jackson without input from Mayor Douglas Palmer. In reaching this determination, the ALJ relied on a statement by Feigenbaum that she “works for the Mayor.” Further, the ALJ found that over many years, Trenton has provisionally appointed individuals to positions where those individuals may not have met the minimum qualifications for those positions at the time of their appointment. Accordingly, she found that this lent credence to the appellant’s assertion that Trenton could have found a position for him if it really wanted to, rather than laying him off because he challenged the Mayor in the 2006 Mayoral election. Finally, the ALJ accepted the appellant’s testimony that it made no sense to purchase expensive equipment for the Recycling Bureau and then abolish it. The ALJ also accepted the appellant’s verbal recitation of alleged cost savings and projected revenues that would benefit Trenton due to the purchase of the sorting equipment. She was most persuaded by the fact that all the Recycling Bureau employees were repositioned to non-vacant, non-posted City positions and that only the appellant lost his position. Finally, the ALJ determined that the City failed to show a logical nexus or reasonable connection between the need for economy and efficiency and the appellant’s layoff. In this regard, she determined that the City did not prepare a cost/benefit analysis to determine the economy and efficiency that would result from the dissolution of the Recycling Bureau. Accordingly, the ALJ recommended reversing the layoff. Exceptions and Cross Exceptions In its exceptions, the City of Trenton argues that the ALJ erred by not upholding the appellant’s layoff from a position that is unquestionably unnecessary and useless as the City does not need a full-time Municipal Recycling Coordinator. The City also argues that the ALJ erred in attributing bad faith to the City for failing to find an alternative position for the appellant at the time of his layoff. Additionally, the City maintains that the ALJ incorrectly determined that the City demonstrated bad faith in failing to perform a cost/benefit analysis of the recycling program prior to deciding to subcontract its recycling program. Moreover, the City contends that the initial decision is inconsistent with the evidence in the record and omits key facts established in the record. In this regard, the City asserts that the ALJ’s credibility findings are arbitrary, capricious and unsupported in the record. Finally, the City argues that the ALJ erroneously determined that Mayor Palmer personally ordered the abolition of the recycling program. In support of its exceptions, the City indicates that even if a particular layoff action may be assigned one or more improper motives, where a municipality can demonstrate that the office or position is unnecessary or useless, the motive for abolishing the position and discharging the incumbent becomes immaterial and of no consequence. Here, the City discontinued its recycling program and does not retain any recycling functions. Therefore, the City has demonstrated the uselessness of the appellant’s former position and should prevail in having the layoff sustained on this ground alone. With regard to the contention that it was bad faith for the City not to find an alternative position for the appellant, the City maintains that the appellant had no lateral or demotional rights to any positions at the time of his layoff, and that it was not obligated to find a position, either permanent or provisional, for which he was not qualified or did not have rights to as determined by the Department of Personnel at the time of his layoff. Had the appellant either lateral or demotional rights, he would not have been laid off. The City also contends that the ALJ’s determination that it was bad faith on the part of the City not to perform a sufficient cost/benefit analysis of its recycling program prior to deciding to subcontract is incorrect on all accounts. Specifically, the City maintains that there is no requirement that a municipality engage in a cost/benefit analysis prior to implementing a layoff or subcontracting an operation. However, the City also argues that the precipitous decline in Recycling Trust Fund balances demonstrated that the City’s general budget would have to bear an increasing burden of the cost of the recycling program. Additionally, the City argues that other findings of fact are erroneous in that they do not comport with the evidence in the record. Specifically, the City asserts that the ALJ’s finding that after the appellant allegedly announced his decision to run for Mayor, the recycling analysis was ordered, is misleading. The City contends that this implication fails to take into account that the analysis was triggered by Jackson’s request to use $22,000 from the trust fund to purchase a box truck. Jackson was advised that three large purchases had been made from trust fund revenues within the preceding five months, and that with the purchases already made, there would not be much money left to absorb part of the employee salary costs. In this regard, the City argues that the evidence in the record demonstrates actions on the part of the City that do not establish bad faith in its actions but rather show economy and efficiency were being sought. As another example, the City asserts that the ALJ ignored or failed to consider the fact that in the summer of 2003, the City learned that the MCIA was required to re-bid its recycling contract as the result of litigation, and that this presented an opportunity for the City to join the MCIA recycling program. Moreover, the ALJ failed to consider that the City’s contract with Waste Management, Inc., for its residential recycling was also expiring. The City maintains that it subcontracted its recycling when and how it did because of the opportunity that was afforded it when the MCIA was forced to re-bid its recycling contract. Further, the City disputes the ALJ’s finding that the recycling program was abolished within “eight” months of the City ordering $277,998 worth of new equipment for the Recycling Bureau. The City maintains that the sorting system was ordered in August 2002 and the box truck was purchased between July and December 2002. Yet the recycling program was not privatized until July 1, 2004 and the appellant was not laid off until December 8, 2004. The City asserts that these events were more than eight months apart. Therefore, the City argues that to the extent the recommended finding of bad faith is based on the “chronology” set forth in the initial decision, the finding of bad faith should be rejected. Finally, the City maintains that the ALJ’s credibility findings are arbitrary, capricious and unsupported by the credible evidence in the record. Specifically, the City argues that the ALJ ignored instances where the appellant’s testimony was refuted and/or proven factually wrong. Specifically, the appellant testified that Donald Arrington, a Sanitation Superintendent, had served provisionally in his title for three or four years so that he could “learn” the position before having to take a test. Mr. Arrington testified from his own recollection and his personnel file that he served provisionally for only six months before receiving a permanent appointment. Additionally, the ALJ found the City’s witnesses incredible based on inconsistencies in their testimony but completely overlooked the inconsistencies in the appellant’s and his witnesses’ testimony. Moreover, the City argues that the ALJ’s finding that Mayor Palmer personally ordered both the abolition of the recycling program and the appellant’s layoff is without support in the record. The City officials involved in these decisions all denied any such order or directive coming from Mayor Palmer. Moreover, there is no document or other evidence indicating the Mayor’s involvement either in the review of the recycling program’s finances or the layoff plan. In his cross-exceptions, the appellant argues that the City used an elaborate scheme to fire a long-term employee in retaliation for his decision to run for Mayor against Mayor Palmer. The appellant also contends that the ALJ’s findings of fact and conclusions of law are well supported in the record and must be sustained. Specifically, the appellant asserts that the ALJ took copious notes during the trial and asked many questions. Her findings were that Mayor Palmer became politically hostile toward the appellant in the summer of 2002 as a result of the appellant’s indication that he would run for Mayor in 2006; the City’s factual basis for its decision to eliminate the appellant’s department in late 2002 defied all economic logic; the City’s reorganization was not for a legitimate purpose but rather a pretext for discharging the appellant; and the appellant was the only employee affected by the privatization of the recycling program and lost his job. Specifically, the appellant maintains that the law is clear that a discharge from employment for political reasons constitutes bad faith. Additionally, the appellant argues that the City’s suggestion that, because it no longer has any use for the appellant’s position such that its motive in laying him off is not relevant, is another indication of bad faith. If all a public employer had to do to avoid the charge of bad faith was to eliminate an employee’s position, it would render civil service law meaningless. Additionally, the appellant asserts that the Board is required by law to give deference to the credibility determinations of the ALJ. This is because the ALJ, as the finder of fact, has the greatest opportunity to observe the demeanor of the involved witnesses, and consequently, is better qualified to judge their credibility. See N.J.A.C. 1:1-15.5(b); See also Matter of Tenure Hearing of Cowan, 224 N.J. Super. 737 (App. Div. 1988), cert. denied, 121 N.J. 615 (1989). The Court’s credibility findings concerning witness testimony may not be modified or rejected unless the Board finds the ALJ’s decision to be arbitrary, capricious or unsupported in the record. The appellant contends that the ALJ’s decision goes into great detail regarding each of the findings of fact and that they are overwhelmingly supported by the credible evidence and must be accepted by the Board. Further, the appellant argues that the sole issue before the Board is whether the City’s design in adopting the outsourcing plan was to accomplish economy or, on the contrary, was to effect the removal of a public employee without observing the Civil Service Act. The appellant maintains that the evidence clearly demonstrated that the City’s elimination of the Recycling Bureau was not to accomplish economy, efficiency or any other legitimate interest, but rather was designed to illegally get rid of the appellant. In support of his contention that the evidence demonstrates bad faith on the part of the City, the appellant asserts that in the months leading up to his layoff, the City invested $280,000 in the appellant’s department, including purchasing a $220,000 custom sorting system to revamp the recycling program, and increase the department’s income and save money. The appellant maintains that it made no sense to invest so much money in the department in the first half of 2002 and then eliminate the department in the second half of 2002. Moreover, the appellant contends that the City performed no due diligence prior to deciding to eliminate the recycling program and commit money to outsource the department to the MCIA. CONCLUSION N.J.S.A. 11A:8-4 and N.J.A.C. 4A:8-2.6(a)1 provide that good faith appeals may be filed based on a claim that the appointing authority laid off or demoted the employee in lieu of layoff for reasons other than economy, efficiency or other related reasons. When a municipality has abolished a position, there is a presumption of good faith and the burden is on the employee to show bad faith and that the action taken was not for purposes of economy. Greco v. Smith, 40 N.J. Super. 182 (App. Div. 1956); Schnipper v. North Bergen Township, 13 N.J. Super. 11 (App. Div. 1951). As the Appellate Division further observed, “That there are considerations other than economy in the abolition of an office or position is of no consequence, if, in fact, the office or position is unnecessary, and can be abolished without impairing departmental efficiency.” Schnipper, supra at 15 (emphasis added). Further, if the appellant establishes a prima facie case, i.e., rebutting the presumption of the good faith basis for the layoff, the appointing authority then assumes the burden of providing preponderating evidence that the layoff would have occurred even when there is evidence of a dual motive. Finally, if the appointing authority provides preponderating evidence of a legitimate business reason, the burden shifts back to the appellant to establish that the legitimate business reason was a mere pretext used to remove the appellant without complying with Merit System law and rules i.e., bad faith. In this regard, the appeal must fail even in the face of a showing of dual motives, such as economy and efficiency and ill will, if the presumptions of economy and efficiency cannot be overcome. See e.g., Matter of Bridgewater Tp., 95 N.J. 235 (1984); See also Wright Line, 251 NLRB 1083 (1980); In the Matter of John Hunt (MSB, decided March 21, 2000). In considering the ALJ’s findings and conclusions, the Board recognizes that the ALJ had the opportunity to review the appointing authority’s policies, hear all the testimony presented, and observe the demeanor of the witnesses. In this matter, the ALJ determined that a nexus existed between the evidence presented and the appellant’s testimony. Based on the totality of the circumstances presented, the ALJ found the appellant’s testimony credible and that much of what the City’s witnesses testified to was not credible. Moreover, the ALJ found that the appointing authority did not produce any evidence sufficiently refuting the appellant’s contentions. Finally, the ALJ determined that the appellant satisfied his burden of proof in showing that the layoff was in bad faith. However, in its de novo review of the record, including a summary of the testimony, the Board disagrees with the ALJ’s assessments and finds the City’s witnesses to be credible. In this regard, the Board acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). “[T]rial courts’ credibility findings . . . are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.” See In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999) ). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Id. at 659 (citing Locurto, supra). The Board appropriately gives due deference to such determinations. However, in its de novo review of the record, the Board has the authority to reverse or modify an ALJ’s decision if it is not supported by the credible evidence. With regard to the standard for overturning an ALJ’s credibility determination, N.J.S.A. 52:14B-10(c) provides, in part, that: The agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record. See also N.J.A.C. 1:1-18.6(c); Cavalieri v. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). Nevertheless, the Board finds that in this case, this strict standard has been met. On page 28 of her 36 page Initial Decision, the ALJ makes specific credibility determinations regarding the witnesses presented by the City. In this regard, she states: Although Ms. Feigenbaum and Mr. Jackson testified that they made the decision to abolish the Recycling Bureau and to contract the recycling out to the MCIA, I FIND their testimonies not credible. I also FIND not credible the testimony of Mr. Norton [the Personnel Director] and Mr. Jackson that they searched and could not find another position for Mr. Mack. Ms. Feigenbaum also testified, “I work for the Mayor.” I FIND this testimony to be true. I also FIND Mayor Palmer’s denial of ill motive to be not credible. I FIND that the Mayor either directly or by inference ordered the abolishment of the Recycling Bureau and the termination of Mr. Mack in retaliation for Mr. Mack's running against the Mayor in the 2006 election. The Board notes that other than this paragraph, there is little or no specific explanation given by the ALJ, other than a few relatively non-material inconsistencies between certain aspects of the witnesses’ testimony, which can be expected given the passage of time, regarding why she found the City’s witnesses, specifically Feigenbaum, Norton and Jackson, not credible regarding much of their testimony. Accordingly, after its de novo review of the record and its own review of the testimony, the Board finds that the ALJ’s recommendation to reverse the layoff is not supported in the evidence. It appears that the ALJ disregarded evidence that Feigenbaum, in her role as Business Administrator, is responsible for the City’s budget. In this regard, the e-mails from Elana Chan, the Budget Officer, while not an exact cost/benefit analysis of the Recycling Bureau, did show the fiscal condition of the Recycling Trust Funds. This evidence demonstrated that the City was concerned about its abilities to meet its obligations to its citizens in a fiscally responsible manner. Additionally, those e-mails were some of the written documentation supporting the City’s position that the Recycling Bureau was being eliminated for reasons of economy and efficiency. In contrast, the ALJ appeared to accept the appellant’s verbal assertion that the sorting equipment would generate much revenue to offset the decline in the price of recyclables and help make the recycling program self-sufficient. There is no evidence which establishes where the appellant’s numbers come from or to whom the appellant provided this information. The ALJ also seems to have disregarded the evidence that the MCIA’s mandate to reopen its recycling contract provided the City with an unexpected opportunity to look into another way of delivering recycling services while experiencing efficiencies of cost. This unexpected opportunity coupled with the evidence that the City’s contract for residential recycling with Waste Management, Inc., was also up for renewal, provided the City with an unusual opportunity to explore a way to provide services with greater cost efficiencies. Additionally, the audit of the Recycling Bureau was undertaken due to issues arising with regard to employees handling cash as part of the recycling operation. The audit was not charged with operational efficiencies. It was to look at policies and procedures for handling cash and its recommendations dealt solely with that issue. Further, the ALJ found that Norton and Jackson were not credible in that they searched for but could not find another position for the appellant. In this regard, it is noted that Trenton was not required to “find” a job, provisional or otherwise for the appellant. In a layoff, an appointing authority is only required to consider an individual’s lateral and/or demotional layoff rights. See N.J.A.C. 4A:82.1, et seq. The appellant, as determined by the DOP, had neither. Moreover, Trenton was not required to “find” a job for the appellant for which he was not qualified. Trenton’s only obligation is to rehire the appellant from a special reemployment list. See N.J.A.C. 4A:8-2.3. In this regard, the detailed and relatively lengthy testimony by Norton and Jackson regarding the lengths they went in attempting to find a position for the appellant is more indicative of a demonstration of good faith, especially in light of the fact that they were not required to find a position for the appellant. The only contrary evidence in the record in this regard is the appellant’s own testimony where he states his “belief” that no effort was made to find him a position. Trenton also fulfilled the layoff rule requirements in that it looked at the impact of a layoff and attempted to lessen the effect. This was accomplished by reassigning the Laborers and Drivers as well as the one Supervisor to newly created positions within the Department of Public Works. This appears to be the “smoking gun” for the ALJ: If positions could be created/found for all employees in the Recycling Bureau but the appellant, then his layoff had to be motivated by bad faith (running against Mayor Palmer) and not for reasons of economy and efficiency. In this regard, the ALJ overlooked the fact that the positions of Laborers and Drivers were positions that the City continued to use and need. Moreover, the testimony indicates that these employees were moved to an area where Trenton had anticipated hiring in the future. The testimony also established that the Supervisor was reassigned to the Division in Public Works where he had originally come from in the same title. The Board finds that, with these actions, Trenton complied with Merit System law and rules in its attempt at mitigating the effects of a layoff on its employees. See N.J.A.C. 4A:8-1.2. Moreover, the Board finds that the issue of the purchase of the sorting machine demonstrates mismanagement on the City’s part and not necessarily bad faith. In this regard, the Board notes that much of the decision-making regarding the purchase of the sorting machine occurred before Feigenbaum became the Business Administrator in May 2002 and before the Recycling Program (as well as other programs) was more closely examined by the City. Nevertheless, it is plainly evident from the mostly unrefuted testimony of several of the City’s witnesses, that the City believed it would see significant cost savings by transferring its residential and commercial recycling operations to the MCIA. It was also able to perform other operations it believed were necessary without hiring additional employees by reassigning the employees from the Recycling Bureau. These results appear to support the presumption that the layoff was effected for reasons of economy and efficiency. However, it is noted that even in the face of ill will and improper motive, a layoff may still be sustained if there is a good faith reason for the layoff, notwithstanding the ill will. In this regard, the basis of the appellant’s case with the layoff appears to center more on the assumption that, if it wanted to, the City could have found a position for him, and the fact that it did not demonstrates the City’s bad faith. Finally, there is not one scintilla of testimony or evidence from anyone indicating that Mayor Palmer directly or indirectly charged his staff with eliminating the appellant’s position. Accordingly, even crediting the appellant’s testimony about the somewhat confusing issue of when and if the Mayor stated that he would run again, this fact alone does not show bad faith. In the absence of any testimony whatsoever that the Mayor influenced the layoff, the ALJ’s finding that the testimony of several of the City’s witnesses regarding this issue was not credible is clearly arbitrary and capricious. The ALJ’s blanket conclusions that none of the City’s witnesses presented credible testimony when they stated that Mayor Palmer did not directly or indirectly influence the appellant’s layoff is not supported by the evidence in the record. Further, just because these individuals “work for the Mayor” does not automatically make their testimony questionable, and surely no more questionable than the appellant’s testimony, since he has a clear interest in regaining his position and is saddled with the burden of proving that the layoff was in bad faith. In its review of the testimony, the Board finds no indication that Feigenbaum, Norton or Jackson presented testimony that was not based on their recollections of how the events leading up to the appellant’s layoff transpired. This is especially true regarding Norton, who is retired and no longer an employee of the City, and Jackson, who testified to having known the appellant since he was a child and was his personal friend. Moreover, even crediting the appellant’s testimony would not establish that the testimony of these individuals regarding their actions during the layoff was incredible since the appellant did not present any evidence that these individuals were directed by the Mayor regarding the layoff. The appellant presented no testimony or evidence that the Mayor spoke with, influenced or otherwise spearheaded any portion of the layoff. His testimony merely provided a possible motive for the Mayor to have wanted to effect the appellant’s layoff. In this regard, it appears that the ALJ was over-reaching in her attempt to ascribe a City-wide conspiracy to have the appellant laid off from his position. For all the reasons stated above, the Board finds by a preponderance of the evidence that the layoff of Tony Mack was undertaken for reasons of economy and efficiency and that he did not sustain his burden of proof of establishing bad faith. In this regard, the Board finds that the ALJ’s determinations are not based on sufficient credible evidence in the record. Accordingly, the Board upholds the layoff of the appellant. ORDER The Merit System Board finds that the appointing authority’s action in imposing a layoff was justified. Therefore, the Board upholds that action and dismisses the appeal of Tony Mack. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.