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In re Hill

Decided: May 31, 1990.

IN THE MATTER OF EDWARD HILL


On appeal from the Merit System Board.

Coleman, J.h., and Brody. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.

Coleman

The issue raised in this appeal is whether a motion for reconsideration can resurrect an appeal from a final administrative determination that was time-barred when the motion for reconsideration was filed. We hold it cannot.

Edward Hill was employed by the Department of Corrections (DOC) as a senior corrections officer and assigned to work at the New Jersey Training School for Boys at Jamesburg. Disciplinary charges were filed against Hill on January 7, 1987 because he left his assigned work area on December 31, 1986 and went to his apartment in the corrections facility where he attempted suicide by lacerating his left wrist. He was also charged with failing to have the capacity to properly perform his duties due to mental or physical disability. Removal from employment was sought based on N.J.A.C. 4:1-16.9 (recodified at N.J.A.C. 4A:2-2.3). The DOC found that the charges were sustained and terminated Hill's employment on February 26, 1987.

Hill appealed to the Merit System Board (Board) which transferred the case to the Office of Administrative Law (OAL) as a contested case. A hearing was conducted before Administrative Law Judge (ALJ) Thomas Clancy. He denied the DOC's application to amend the charges to include the charges of "conduct unbecoming a public employee" and "neglect of duty." The ALJ issued his Initial Decision on November 19, 1987, in which he concluded that all charges should be dismissed. He found that the DOC had failed to produce any medical or psychiatric evidence indicating that Hill was mentally or physically incapacitated to the point of not being able to discharge his duties.

The Board, however, did not adopt the ALJ's conclusion that the charges should be dismissed. Instead, the Board concluded that the DOC's motion to amend the charges should have been granted. The Board amended the charges and remanded the matter to the OAL to conduct a hearing on the charges as amended.

A hearing on the amended charges was conducted before ALJ Roger Perichilli. The amended charges were: (1) conduct unbecoming an employee, contrary to N.J.A.C. 4A:2-2.3(a)(6); (2) neglect of duty, contrary to N.J.A.C. 4A:2-2.3(a)(7); and (3) incapacity to perform one's duty, contrary to N.J.A.C. 4A:2-2.3(a)(8). On July 29, 1988, the ALJ issued his Initial Decision on the amended charges. He concluded the amended charges should also be dismissed because no medical or other credible evidence had been presented which demonstrated that Hill was mentally or physically unable to perform his duties. The second ALJ's decision was mailed to the same attorneys involved in this appeal. The Board issued its Final Decision on September 19, 1988 adopting the recommendation of the ALJ. The Board ordered that Hill be reinstated to his former position with back pay, benefits and seniority for the period of removal.

The first relief sought by the DOC from the Board's final decision was a motion for reconsideration that was filed on

December 23, 1988. Counsel for Hill asserts that the motion for reconsideration was filed only after he sought to compel compliance with the Board's reinstatement order. The Board denied the motion for reconsideration on April 29, 1989 because the DOC failed to present any new evidence or additional information not presented at the original proceedings as required by N.J.A.C. 4A:2-1.6(b). In other words, the motion for reconsideration was an undisguised attempt to have the Board review the merits of the controversy. This appeal was filed on May 16, 1989.

On this appeal, the DOC contends:

I THE MERIT SYSTEM BOARD'S DECISION TO REINSTATE OFFICER HILL IS ARBITRARY, CAPRICIOUS AND UNREASONABLE, IS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE PRESENT IN THE RECORD AND SHOULD BE REVERSED BECAUSE IT FAILS TO ACKNOWLEDGE THE ...


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