On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, C-260-00 in A-1241-00T2. On appeal from the Board of Trustees of Ramapo College of New Jersey, HEC-12420-95 in A-1243-00T2.
Before Judges Ciancia, Parrillo and Coleman.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
OPINION CORRECTED 03/26/02
These related appeals were calendared together and argued before us at the same time. The resolution of one of them moots the other and we choose to combine their dispositions into one opinion. Although various issues are raised, we resolve both appeals upon the determination that a state agency is not at liberty to "reconsider" the "deemed adopted" decision of an administrative law judge, under the present circumstances.
Thelmon Newman was employed by Ramapo College as Director of the Educational Opportunity Fund (EOF). He was a non-tenured, non-teaching, faculty member who had been employed by the college for over twenty-one years. His most recent contract was for a two-year term. Toward the end of the first year of that contract, Newman was informed by the president of the college, Robert A. Scott, that Newman would not be nominated for reappointment as Director of the EOF at the conclusion of his two-year contract. In fact, Newman was removed from the position forthwith, and told he could finish the contract on "special assignment" to the president. Newman appealed the president's decision to the college's Board of Trustees (Board). In turn, the Board sent the matter to the Office of Administrative Law (OAL) as a contested case. Newman also filed an action in the Superior Court, Law Division.
After some initial dispute over which forum could hear what claims, the OAL went forward with hearings concerning the alleged irregularities in the process leading up to the decision not to recommend Newman for reappointment as director of the EOF. The Law Division retained, but has held in abeyance, plaintiff's claims alleging violations of the Conscientious Employee Protection Act and the Law Against Discrimination.*fn1
Hearings were held in the OAL over an eleven-day period and the record closed on March 2, 1999. Multiple extensions were granted to the Administrative Law Judge (ALJ) to permit preparation of the recommended decision. On February 25, 2000, ALJ Ken R. Springer issued a twenty-one-page opinion, which found that the college "violated its own written procedures governing reappointment of non-teaching professional staff. . . ." President Scott's determination not to recommend Newman for reappointment was set aside. The only remedy provided Newman was a remand "to the College for compliance with the written procedures for reappointment of non-teaching professional staff in effect at the time of the original decision."
ALJ Springer's recommended decision was received by the Board not later than March 8, 2000. It then had forty-five days to adopt, reject or modify the recommended decision. N.J.S.A. 52:14B-10(c). Alternatively, the Board could seek an extension of the forty-five-day period for good cause, but such request must be made within the initial forty-five-day period, except in cases of emergency or unforeseeable circumstances. N.J.A.C. 1:1-18.8. Here, the Board took no action on the recommended decision within the forty-five-day period. Although it internally acknowledged the need for an extension within those forty-five days, it did not request an extension until nine days after expiration of the forty-five-day period. That request was orally denied and then renewed. Upon the second request, Acting Director and Chief Administrative Law Judge Jeff S. Masin issued a seven-page opinion denying the extension and detailing his reasons. At that point the Board could have appealed the denial of an extension to this court as the final determination of the OAL. R. 2:2-3(a)(2). For reasons not evident in the record, it chose not to do so. Instead, the Board went ahead and issued its own opinion, finding that it had properly complied with all procedures in deciding not to reappoint Newman. The Board subsequently issued a document captioned "Decision on Motion Sua Sponte of the Board of Trustees of Ramapo College of New Jersey," wherein it set forth its rationale and alleged authority for reconsidering the ALJ's decision despite the denial of an extension of time to do so.
In response to all this, Newman did two things. The first action he took was to seek enforcement of ALJ Springer's decision in the Chancery Division of the Superior Court in an action in lieu of prerogative writ. The theory behind that action was that the ALJ's decision was "deemed adopted" pursuant to N.J.S.A. 52:14B-10(c), when the Board failed to issue a final decision in a timely manner. The prerogative writ action was dismissed with prejudice upon the determination of the judge sitting in General Equity that the validity of the competing decisions should be decided in the Appellate Division. Newman's appeal from that dismissal is before us with docket number A-1241-00T2.
Newman also appealed the Board's decision against him, on the merits. That appeal carries docket number A-1243-00T2.
We do not reach the issues raised in A-1243-00T2 because we are persuaded to the merits of the contentions presented in A- 1241-00T2. Those issues, as framed by Newman's counsel are:
I. BY OPERATION OF LAW, RAMAPO COLLEGE'S FAILURE TO REJECT THE OAL INITIAL DECISION WITHIN 45 DAYS RESULTED IN THE BOARD'S ADOPTING THE INITIAL ...