On appeal from Merit System Board.
Before Judges Skillman, Coburn and C.S. Fisher.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The issue presented by this appeal is whether disciplinary charges against a public employee in the career service must be dismissed if the appointing authority fails to conduct a departmental hearing within the thirty-day period required by N.J.S.A. 11A:2-13. We conclude that this requirement is not jurisdictional and that an appointing authority may proceed with disciplinary charges even if it fails to conduct a departmental hearing within the statutorily mandated period.
On May 4, 2001, respondent Department of Corrections served appellant, a senior corrections officer, with a preliminary notice of disciplinary action, which charged him with conduct unbecoming a public employee, in violation of N.J.A.C. 4A:2-2.3(a)6, and the use, possession or sale of a controlled dangerous substance, in violation of N.J.A.C. 4A:2-2.3(a)11. The specification of charges stated that a urine specimen appellant provided on April 19, 2001, tested positive for cocaine. The notice also stated that appellant was suspended with pay, effective immediately, pending the outcome of a hearing.
By memorandum dated May 14, 2001, respondent notified appellant that the hearing would be conducted on May 30, 2001. By letter dated May 23, 2001, respondent notified appellant that the hearing had been postponed, and by letter dated May 31, 2001, respondent rescheduled the hearing for June 8, 2001. By letter dated June 11, 2001, respondent informed appellant that his request for an"indefinite postponement" was denied, because"administrative protocol" requires a disciplinary hearing to be conducted"within a certain time frame," and that the hearing had been rescheduled for June 20, 2001.
On June 20, 2001, respondent conducted a departmental hearing, following which it issued a notice of final disciplinary action that sustained both charges and ordered appellant's removal from his position, effective immediately.
Appellant appealed this determination to the Merit System Board (Board), which transmitted the matter to the Office of Administrative Law for a hearing. At the outset of the hearing, appellant argued that respondent did not have jurisdiction to proceed with the disciplinary charges because it had failed to conduct a departmental hearing within the thirty-day period provided under N.J.S.A. 11A:2-13 and N.J.A.C. 4A:2-2.5(d). The Administrative Law Judge (ALJ) did not immediately rule upon this argument, and both respondent and appellant presented their proofs relevant to the charges.
The ALJ issued an initial decision which concluded that respondent was not foreclosed from proceeding with the disciplinary charges even though it had failed to conduct a departmental hearing within thirty days of service of the preliminary notice of disciplinary action. On the merits, the ALJ sustained both charges against appellant and concluded that his conduct warranted removal. The Board adopted the ALJ's recommended decision and affirmed respondent's removal of appellant from his position as a senior corrections officer.
On appeal, appellant's only argument is that respondent lost jurisdiction to proceed with the disciplinary action when it failed to conduct a departmental hearing within thirty days of service of the charges. Appellant relies upon N.J.S.A. 11A:2-13, which provides in relevant part:
Before any disciplinary action... is taken against a permanent employee in the career service or a person serving a working test period, the employee shall be notified in writing and shall have the opportunity for a hearing before the appointing authority or its designated representative. The hearing shall be held within 30 days of the notice of disciplinary action unless waived by the employee. Both parties may consent to an adjournment to a later date.
The Board has implemented this legislative directive by adoption of a regulation which states:
A departmental hearing, if requested, shall be held within 30 days of the Preliminary Notice of Disciplinary Action unless waived by the employee or at a later date as ...