Before Judges Havey, Cuff and Lefelt.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 10, 2000
On appeal from a Final Decision of the Merit System Board.
The issue presented by this appeal is whether N.J.S.A. 11A:2-15, specifying a civil service appeal time frame, should be applied to an employee's appeal, despite the appointing authority's failure to provide the employee's attorney with a copy of the departmental ruling before expiration of the statutory appeal period. We reject appellant's arguments and affirm the Merit System Board's ("Board") dismissal of the appeal.
Ali Mesghali was a senior corrections officer at Bayside State Prison who was charged with two major disciplinary violations: (1) negligence resulting in injury to an inmate, and (2) failure to report an injury. See N.J.A.C. 4A:2-2.3(a); Human Resources Bulletin 84-17D, Safety and Security Precautions 1 and 9. A departmental hearing on these charges was conducted on November 6, 1998. Before this hearing, both counsel for Mesghali and the prison attorney were advised that Mesghali was also to be charged with undue familiarity with inmates and insubordination.
After the November 6 departmental hearing, the hearing officer sustained the charges, removed Mesghali from his employment, effective November 20, 1998, for the negligence charge and imposed a fifteen-day suspension for the failure to report charge. The prison, as the appointing authority, on November 23, 1998, mailed the Final Notice of Disciplinary Action to Mesghali.
After a second departmental hearing, the second charges of undue familiarity and insubordination were also sustained by the hearing officer. After receipt of Mesghali's timely appeal to the Board and transmittal of the case to the Office of Administrative Law ("OAL"), Administrative Law Judge Edgar Holmes indefinitely adjourned the second charges pending resolution of this appeal.
Mesghali acknowledges that he received, on November 30, 1998, the Final Notice of Disciplinary Action regarding the first charges. Mesghali's attorney, however, did not receive a copy of this final notice. Instead, counsel learned on January 6, 1999, at the second departmental hearing, that a departmental decision on the first charges had been issued.
Mesghali did not advise his counsel of the final notice because Mesghali had already authorized an appeal should one be necessary and assumed that his counsel was taking care of the matter. The Final Notice of Disciplinary Action indicated a "Distribution" providing a "green copy" to the "Employee Representative." In fact, however, the prison had not forwarded a copy of the final notice to Mesghali's counsel, but instead left a copy of the form in the prison's personnel office for Mesghali's union representative. When no disposition was received by Mesghali's attorney on the first charges, counsel assumed that the hearing officer was holding the first disposition until the second charges were concluded, despite the fact that he knew that separate hearing officers were involved.
Once counsel learned that the first set of charges had been concluded, he requested an appeal from the Board by letter dated January 11, 1999. In an April 30, 1999 decision, the Board denied Mesghali's appeal request, concluding that the "matter was not perfected within 20 days of receipt of the Final Notice of Disciplinary Action." This appeal followed.
The statute, applicable to disciplinary appeals, in pertinent part provides that:
Any appeal from adverse actions . . . shall be made in writing to the board no later than 20 days from receipt of the final written determination of the appointing authority. If the appointing authority fails to provide a written determination, an appeal may be made directly to the board within reasonable time. [ N.J.S.A. llA:2-15 ]
The dictates of this statute have been interpreted as jurisdictional and "mandatory in its requirement." Borough of Park Ridge v. Salimone, 21 N.J. 28, 46 (1956). The Board's regulation also provides that "an appeal must be filed within 20 days after either the appellant has notice or should reasonably have known of the decision, situation or action being appealed." N.J.A.C. 4A:2-1.1(b). Furthermore, the Board specifically requires that "appeal from a Final ...