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In re Colon


July 19, 2007


On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2004-3030.

Per curiam.


Argued June 6, 2007

Before Judges Stern and Sabatino.

Wilfredo Colon ("Colon"), a Newark police officer, appeals a January 12, 2006 final decision of the Merit System Board ("the Board"). The decision rejected Colon's motion to reinstate an administrative action in which he had sought to challenge his discharge in January 2004 by respondent City of Newark ("the City") for testing positive on a drug test. The Board's ruling stemmed from Colon's failure to appear for his scheduled hearing before an administrative law judge ("ALJ") in May 2005 and his subsequent failure to take prompt steps to revive his case. We affirm.

The pertinent facts and circumstances are as follows. On December 2, 2003, Colon tested positive for marijuana in a random urine screen. The City consequently decided to terminate Colon's employment as a police officer. After serving a preliminary notice of disciplinary action upon Colon, the City issued a final disciplinary notice to him on February 17, 2004. The final notice declared Colon terminated as of January 20, 2004. With the assistance of the first of his three successive attorneys, Colon timely appealed the City's disciplinary action, and requested a contested-case hearing before the Office of Administrative Law (OAL).

Thereafter, Colon retained a second lawyer to represent his interests in the administrative action. That substituted attorney informed the City of his retention through a letter dated June 23, 2004. The letter also requested certain discovery. Subsequently, the second attorney discontinued his representation in October 2004, after reviewing independent laboratory results and having a discussion with Colon. The attorney confirmed his withdrawal from the case in a certified letter to Colon dated October 22, 2004, in which he noted that it "would not [be] economically feasible to pursue this matter further."

The OAL, meanwhile, scheduled Colon's hearing for May 18, 2005. In anticipation of that proceeding, the OAL sent out hearing notices to the parties on or about February 4, 2005. The notice for Colon, who was then self-represented, was mailed to an address in Old Bridge that had been listed on Colon's appeal form by his first attorney. Evidently, by this point Colon was residing in Puerto Rico.*fn1 He contends, and it is undisputed for purposes of this appeal, that he did not receive the OAL hearing notice in advance of the May 18, 2005 trial date.

Colon did not appear at the May 18, 2005 scheduled OAL hearing. The City, however, did appear through its counsel, who was ready to proceed. Because Colon had failed to be present for the hearing, the OAL issued a failure-to-appear notice to him on May 21, 2005 and returned the case to the Board's parent agency, the Department of Personnel ("DOP").

The failure-to-appear notice was mailed to the Old Bridge address shown for Colon on the OAL service list. The notice specifically instructed Colon that "any excuse for [his] failure to appear must be mailed to the transmitting agency [i.e., the Merit System Board] . . . and to all other parties within 13 days of this notice." (emphasis added).

Colon did not respond to the May 21, 2005 failure-to-appear notice within the prescribed thirteen days, which expired on June 3, 2005. The record suggests that Colon did, in fact, receive the notice, or that he at least was aware of its contents, because he soon thereafter retained a third lawyer to represent his interests in an effort to restore his case. According to that third lawyer, he mailed a letter on June 15, 2005 to the OAL, requesting that Colon's hearing be rescheduled. The letter, which was not supplied to us in the record on this appeal, apparently was never received by the City or by its counsel. As noted in the Board's final decision, the letter did not explain why Colon had missed the May 18, 2005 OAL hearing.

Colon's third lawyer telephoned the DOP on August 22 and again on August 24, 2005 "regarding the status of the matter." As the Board's decision noted, the lawyer explained that he had "sent a letter on June 15, 2005 to the Clerk of the OAL and copied DOP," notifying those agencies "that he represented the appellant and . . . request[ing] the hearing be scheduled." At that point, DOP staff informed counsel that no copy of his June 15 letter was in its file. Additionally, staff advised the attorney that it would be necessary to submit a formal request to seek to reopen Colon's case.

No further correspondence from Colon or his third attorney was received until November 9, 2005. On that date, the attorney tendered an affidavit from Colon "indicating that he did not receive notice of the May 18, 2005 hearing date" and had [subsequently] retained counsel to assist in that matter. The City opposed the reinstatement of Colon's administrative action.

On January 12, 2006, the Merit System Board denied appellant's "request to remand his appeal to the OAL" and ordered his appeal dismissed. The Board's decision was memorialized in a four-page decision. The decision found, among other things, that "none of the appellant's subsequent actions after receipt of [the May 2005 failure-to-appear] notice were timely," and that "appellant's continual delay and/or disregard in responding to instructions . . . provides ample justification to deny his request as untimely."

This appeal followed. In essence, Colon argues that the Board's failure to reinstate his administrative action was arbitrary and capricious, a deprivation of due process of law, and constituted a manifest abuse of discretion.*fn2 We disagree.

As Colon appropriately recognizes through the manner in which he frames the issues on appeal, our scope of review of the agency's final decision is limited. Administrative decisions should be disturbed "only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy." In re Musick, 143 N.J. 206, 216 (1996). "A 'strong presumption of reasonableness attaches to the actions of the administrative agencies.'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). An agency's determination will not be "upset . . . in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies . . . ." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

Applying those well-settled principles, we are satisfied that the Board's decision here was consistent with its statutory prerogatives, neither arbitrary nor capricious, and did not deprive Colon of due process of law.

Article four of chapter two of the Civil Service Act ("the Act") governs the appeal process within the Department of Personnel. N.J.S.A. 11A:2-13 to -22. The relevant portion of the Act specifying the timeline for appeals states that appeals 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. 11A:2-15 (emphasis added).]

The same twenty-day period is echoed in the Administrative Code, which specifies that the period for a challenge to agency action begins to run "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). The Code further specifies that the default period for such a challenge is twenty days, but, if a "a different time period is stated," that time period controls. Id.

Here, the "failure to appear" notice issued on May 21, 2005 informed Colon that he had thirteen days from the date of receipt of the notice to notify all parties and the DOP of his reasons for his failure to appear at the May 18, 2005 scheduled hearing. Because the Civil Service Act and the Administrative Code both permit the agency to specify the time for lodging an appeal up to a maximum of twenty days, the thirteen-day response time set forth in the May 21, 2005 notice does not conflict with either the statute or the Code. N.J.S.A. 11A:2-15; N.J.A.C. 4A:2-1.1(b). In this case, at least twenty-five days passed between the May 21, 2005 failure-to-appear notice and the June 15, 2005 letter from Colon's new attorney to the DOP. Furthermore, counsel's June 15, 2005 letter did not comply with the requirements set forth in the May 21, 2005 notice, in that the Board found it had not been concurrently served upon the City and had also omitted an explanation for why Colon was not present at his scheduled hearing.

In any event, we concur with the Board's assessment that Colon was not timely in his subsequent actions. Although his third attorney evidently did place calls to the DOP in the later part of August 2005 to inquire informally about the status of the matter, Colon presented no written or formal explanation of his circumstances until tendering his affidavit in November 2005, nearly six months after getting the May 2005 failure-to-appear notice. Although we appreciate his counsel's representation that Colon had been away from New Jersey in Puerto Rico during that interval, there is no reason to believe that Colon would have been unable to communicate about his case while he was there, through mail, telephone, fax or other methods. Instead of acting with dispatch on this matter of seemingly great importance to him, Colon failed to give it the priority it deserved.

Given Colon's lengthy delay, we are not persuaded that the Board misapplied its authority in dismissing the appeal as untimely on the particular circumstances reflected in this record. The dismissal did not rest simply upon the agency's so-called "thirteen-day rule," but properly took into account Colon's ensuing failure to supply a substantive justification for his missed appearance for nearly a half of a calendar year. We also note that the City did not have to demonstrate specific prejudice arising from the lapse of time to justify the sanction of dismissal; to require a showing of such prejudice would engraft an uncodified exception to N.J.S.A. 11A:2-15 and N.J.A.C. 4A:2-1.1(b) and would generally thwart the expeditious disposition of personnel matters involving civil servants.


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