Demoted Ocean City Beach Patrol officer continues 23-year-old fight

Commission rules for former assistant captain in long-delayed case, but city appeals

Editor’s note: The information in the following article was taken directly from the 120-page summary and findings by Jonathan Roth, a hearing examiner for the New Jersey Public Employment Relations Commission. Additional comments, as attributed, are from the plaintiff’s attorney. The city of Ocean City declined to comment, citing pending litigation.

OCEAN CITY — In a case stretching back more than two decades, a retired Ocean City Beach Patrol officer has been trying to get wages owed after being unfairly demoted from his position.

Last fall, a hearing examiner from the New Jersey Public Employment Relations Commission (PERC) ruled the man was indeed owed those wages plus interest after being downgraded to the lowest-level lieutenant position from assistant captain. In addition to making him financially whole, the examiner ruled the city must post notices for beach patrol employees informing them of their rights and to not discriminate against lifeguards for exercising those rights.

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‘… The city played super, super hardball, and they’re still doing it.’
–Joseph C. Ruddy Jr., attorney for former OCBP assistant captain Yust

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It is unlikely Edwin Yust, who retired from the beach patrol in 2008, will be getting a check any time soon.

In February, on the last possible day open to it, the city of Ocean City appealed the decision, throwing the case back into limbo again, a move his attorney said came in spite of “overwhelming evidence.”

“This PERC decision by an independent hearing examiner establishes that there was overwhelming evidence that Dominick Longo and a former operations chief of the Ocean City Beach Patrol committed unfair labor practices against Edwin W. Yust, a former assistant captain who served the city of Ocean City for 51 years on the OCBP,” Joseph C. Ruddy Jr., Yust’s counsel, said in a statement.

“This litigation started in 1999 and continued through the administrations of numerous mayors, including the present Mayor Jay Gillian, during the 12 years he has served as mayor,” Ruddy continued. “Since 1999, every administration has spent taxpayer money to defend unfair labor practices by city officials that this decision proved were totally indefensible. The filing of a Freedom of Information Request would disclose the total amount of taxpayer money that has been spent over 20 years defending unfair labor practices by city officials whose leadership had raised numerous serious concerns.”

The city declined to comment, citing pending litigation.

PERC decision spans 120 pages

The PERC decision the city is appealing goes into detail about allegations Yust and his attorney made — and backed up with extensive documentation — about why the former assistant captain was demoted and removed from the OCBP Administrative Association’s negotiation team.

In 1999, Yust filed unfair practice and other charges against the city and then-director of public safety, the late Dominick Longo, who oversaw the beach patrol as part of his duties.

Ruddy, himself a former Ocean City lifeguard and police officer in the 1960s, got involved and amended the PERC case a year or two later. Ruddy said the city tried to get the case dismissed a number of times. 

The city also was ordered twice to meet with Yust and his counsel to settle the case “but the attorney for the city came in and said their offer is nothing, that they wouldn’t consider settling.”

That the city wouldn’t try to settle the case especially aggravated Ruddy because he had to make a seven-hour round-trip from Maryland to New Jersey for a settlement conference just to hear the city’s answer, when he could have been informed by phone.

“That pissed me off because I expected the other counsel to give me a call before I drove round-trip seven hours to get that type of response, but the city played super, super hardball and they’re still doing it.”

The PERC decision came down in October 2021. For months, Ruddy claims, the city didn’t respond or even acknowledge the decision, how it would address the lost salary plus interest, lost retirement benefits and how it would post the notice so other lifeguards would see it.

It wasn’t until after that the city said it would appeal.

Asked what Yust, now 80 years old and retired for almost a decade and a half, wanted most, Ruddy was clear. 

“More than anything else is to be exonerated, to prove that he should never have been demoted, that he never should have been treated like that, that his 51 years of service was good, solid service,” Ruddy said. 

Yust background, OCBP tensions

Yust was hired onto the beach patrol in 1957 and worked summers in Ocean City through 2008. During the year, after earning undergraduate and graduate degrees, he worked as a high school teacher for more than 30 years. He was promoted to lieutenant in 1972. In 1983, then-captain Oliver Muzslay promoted him to administrative lieutenant, a move approved by Longo. Aside from those duties, he also was responsible for overseeing a zone. 

Around 1988, Longo promoted Yust and Alfred “Bud” McKinley as assistant OCBP captains. Muzslay testified he was not part of Longo’s decision and thought it unnecessary to have two assistant captains, acknowledging he himself “competed” with McKinley for the captain’s position and that McKinley tried to get him ousted from his job. In contrast to his feelings about McKinley, Muzslay testified Yust was a loyal officer.

Medic’s pension waiver request causes discord

That same year, Ocean City formally adopted a lifeguard pension plan and a governing pension commission that included a lifeguard, a “superior officer” and two citizens who weren’t members of the beach patrol. Almost a decade later, in 1997, Yust succeeded McKinley as the senior officer on the pension commission.

It was in the spring of that year that a request came from Kathleen Bourbeau, a senior medic with a dozen years of service under her belt asking to work part-time for her 13th summer season because of maternity leave; she was still nursing her daughter. 

Bourbeau made the request to McKinley, who told her she would get the waiver even though he was not on the pension commission.

She would later formerly file a waiver to the rule for pension standards, allowing her the limited hours without impacting her pension, a matter that would play into Yust’s later demotion.

Neither Muzslay nor Yust believed a part-time employee such as Bourbeau could use maternity leave as the basis for a waiver, which added to the rift between him and McKinley. The captain felt McKinley bypassed the chain of command by appealing directly to Longo on the matter.

Longo ordered the assistant captains, Yust and McKinley, to be separated, sending Yust to the boathouse, an “obvious fall into disfavor with Director Longo,” and took other actions including a flow chart with a chain of command that gave most duties to one assistant captain (of operations) — McKinley — and none to the other assistant captain (administrative), Yust.

Ruddy said underlying the fight over the medic was a battle between McKinley and Muzslay. McKinley was telling the medic she would get the exemption — and have no interruption in her service requirement — even though he was no longer on the commission that made the decisions, and Muzslay said that type of leave did not exist for summer employees and McKinley didn’t have the right to make that decision.

According to the attorney, that’s when the whole issue started with Yust as McKinley got Longo involved and had mayor Henry “Bud” Knight intervene, “something that never happened in the history of the pension commission that a mayor would try to interfere.”

In August 1997, Bourbeau filed her request for a waiver to the pension requirements. Yust, on the pension commission, inquired, without her permission, to the school district where she worked and found out she had returned to work there in mid-May as a teacher.

In late November 1997, Yust wrote a decision that the medic’s pension waiver be denied. One line read if she “could return to her regular teaching position full-time, why could she not return to her seasonal summer position full-time?” The next month, the four-member commission voted to deny the medic’s request, even though Longo had sought to get her the waiver and McKinley had assured her she would get the waiver.

The medic appealed and in the winter of 1998 Longo wrote to Muzslay that Yust’s actions were “unprofessional,” including contacting the medic’s school district, and told the captain that Yust was to be stripped of his “line authority” and that Yust had to approve the medic’s matter (and that of another lifeguard) before the commission. Muzslay said the pension commission was independent and did not answer to him on pension matters.

For his part, Yust acknowledged some of Longo’s criticisms were valid. 

The pension commission met in late March 1998 and discussed the medic’s matter, and in spite of attempts from outside the commission to influence its decision, in April decided again unanimously to deny the medic a waiver.

Ruddy said the commission studied the medic’s request, but once they found out she had returned to “teaching before the school year was over, after the delivery of the baby, they could not justify her claiming she couldn’t work a minimum of 40 days during the summer.”

The medic’s attorney and the city attorney at the time believed denying the waiver could open the city to a lawsuit, but commission members felt approving it could “open a can of worms” for others requesting waivers.

Through the summer of 1998, the commission members met with mayor Knight and then the city attorney, who both suggested the commission could grant a waiver to avoid a potential lawsuit. In August, the commission voted 2-2 on the waiver, with Yust one of the votes against it.

A day later, the other commission member who voted against the waiver told Yust he was resigning under pressure because an officer who supervised him, Thomas Mullineaux, who would later become operations chief of the OCBP, said, “Get out, they’re trying to bury you.”

In December 1998, Longo wrote to Yust that the city would no longer fund his assistant captain role going forward in 1999.

A month later, the Lifeguard Association wrote to Yust and said he was not wanted on the lifeguards’ negotiating committee, which he believed was because he would be a distraction fighting for his own assistant captain position at the possible expense of a new contract.

Starting the summer of 1999, Yust was demoted to lieutenant, he was paid $8,500, a 30 percent drop from his $12,150 salary as assistant captain, while McKinley had his pay boosted by the same amount to $15,000.

Muzslay testified Longo told him he was eliminating Yust’s assistant captain position because Yust did not support him on the pension issue and that Yust supported a mayoral candidate who, if elected, promised to get rid of the public safety director position (Longo’s job).

That 1999 summer season, Yust was demoted to “roving” lieutenant, not even given a zone to oversee, and was made subordinate to other members who had been subordinate to him. He also suffered the indignity of other basics, such as being denied a parking permit.

Near the end of the 1999 season, the newly constituted pension commission voted to give the medic her waiver. Yust cast the lone no vote.

Yust would continue to work as an hourly lieutenant for the next nine years.

“The real thing that was going on was the backstory of McKinley and (then Lt.) Mullineaux versus Muzslay and Yust,” Ruddy said. 

After Yust’s demotion, he added, Mullineaux assigned him the lowliest position among the lieutenants in spite of his superior number of years of service.

Late in his tenure, in 2006, he was written up on a complaint about a surf chair, trying to retrieve it from a handicapped person during a wedding ceremony, and given a four-day suspension. Yust also was reprimanded for collecting radios from lifeguards before 4:45 p.m. and another reprimand for the way he handled a lifeguard found sleeping while on duty.

He caught a lifeguard sleeping in the stands with bathers in front of him and recommended he be fired, Ruddy said, “but they found that Yust was at fault because he didn’t handle that as professionally as he should have, blaming Yust and not the kid, and Mullineaux completely exonerated the kid.”

Yust failed to re-qualify as a guard for the 2009 season under new guidelines of testing that Mullineaux implemented, which required completing a half-mile run in 3 minutes, 45 seconds and a 200-yard swim in 3:30. That was when Yust retired from the OCP.

Other legal issues on the beach patrol

After summer 1999, then-mayor Knight fired Muzslay, claiming “he wanted a younger man,” and McKinley was awarded the title of chief of operations. But before the summer season of 2000, Muzslay was reinstated as captain. By 2001, however, the captain’s position was eliminated. 

McKinley died in May 2001 and Mullineaux was named operations chief. The position of captain was gone.

In addition to his PERC suit, Yust worked with attorney Frank Corrado to file an age-discrimination suit against the city, citing Knight’s comments that he got rid of Muzslay because of his age and wanted to get rid of older officers. 

“That led to a huge settlement that Muzslay got,” Ruddy said. 

Yust’s suit in federal court got thrown out on a technicality. Corrado turned around and filed suit in Cape May County for age discrimination and that case was settled in Yust’s favor after Yust retired, Ruddy said.

PERC rules in Yust’s favor

The PERC hearing examiner said he had to decide whether Yust’s counsel showed a preponderance of evidence that Yust’s demotion and a related failure to process his grievance “constituted unfair labor practices.”

The examiner said the fact that during 1999 contract negotiations, when five members of the negotiating team, including McKinley and Mullineaux, were given raises, and Yust had his pay cut, “were intended at least in part to rewarding … Association representatives for the acquiescence to and continuing support of the elimination of Yust’s title.”

The chronology of events also showed that the city, particularly Longo, intended to punish Yust for taking part in the pension commission and not granting the medic’s waiver. Longo began discriminating against Yust.

When Yust appealed his demotion, McKinley was an advocate for the city to deny it and because Muzslay supported the grievance, the city also retaliated against him for not carrying out Longo’s directives. (A side note is that when Longo revised the OCBP organizational chart on April 1, 1999, moving some of his duties to McKinley, Muzslay’s office furniture was thrown out, presaging his firing after the 1999 season.)

The examiner said when Yust submitted his application for promotion to senior lieutenant in 1999, 2000 and 2001, it was never fairly considered. However, he noted facts did not show that the tests for re-qualifying in 2009 were changed to discriminate against Yust.

Ocean City did not offer any credible evidence for good reason for Longo to take away Yust’s duties, such as streamlining operational costs, because the city could not show any operational efficiencies, the examiner reported.

Unlawfully demoted

The hearing examiner concluded Yust was “unlawfully demoted from assistant captain in the OCBP to lieutenant in 1999 and that his wages were concomitantly and unlawfully reduced in retaliation for protected conduct.”

The examiner’s remedy is to make Yust whole for losses, plus interest, in compensation, lifeguard pension benefits and other emoluments from 1999 through 2008, his last year of employment with the city.

Further, he said the city should cease and desist from “interfering with, resisting or coercing employees in the exercise of the rights guaranteed to them by the New Jersey Employer-Employee Relations Act” and to cease and desist from “discriminating in regard to hire or tenure of employment … to encourage or discourage employees in the exercise of the rights guaranteed to them by the act. …” 

He specifically cited removing Yust’s duties, eliminating his title, changing his work location and reducing his pay.

In addition to making Yust whole for his losses, he told the city to post a notice for 60 consecutive days telling them they in fact cease and desist with interfering with employees’ rights under the act.

Decision was a long time coming

This case has taken years to make it through the Public Employment Relations Commission.

Ruddy said they would get a day of hearings only every two years, something not uncommon for this type of claim. For the first time, in 2017, they had four or five straight days of hearings. The end of closing arguments was in July 2017, and Ruddy said he wrote a rebuttal to the city’s response in October 2017. The case was officially “submitted” to the commission in December 2017.

It took almost four years for Hearing Examiner Jonathan Roth to write and issue his report and recommended a decision in October 2021. Part of the delay is explained by the detailed nature of the report — 120 pages — and because from the time it was submitted, Roth was appointed to the head of the litigation section of PERC, overseeing 40 other lawyers as well as his own work. The COVID-19 pandemic also slowed everything to a crawl.

Ruddy practices in Maryland but served on the Ocean City Beach Patrol around 1961 to 1965 and as an Ocean City police officer around 1965 to 1968 before moving on to his career in law.

Asked why he has spent so many years on this case, he said the continuity was important because he was able to “catch various city officials in lies, which were reflected in the hearing examiner’s report.” 

Ruddy said he was paid on an hourly basis while Yust was still working on the OCBP, but after that changed to a contingency basis, meaning his fees would be included in a settlement with the city.

With the city deciding to appeal in the past few weeks, it is not known when or if this case will be settled.

By DAVID NAHAN/Sentinel staff