On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2006-2571.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Baxter.
Anthony Renieri, a former Senior Corrections Officer with the Juvenile Justice Commission (JJC), of the Department of Law and Public Safety (Department), appeals from the July 20, 2006 denial of his motion for reconsideration of his removal from employment effective September 7, 2004. On appeal, he argues that the decision of the Merit System Board (Board) that he was not entitled to appeal his termination on the merits, because he failed to file his appeal in a timely manner, was error. We agree with Renieri's contentions, and reverse and remand the matter for a merits hearing before the Office of Administrative Law (OAL).
Renieri was suspended from his position as a Senior Corrections Officer at the JJC on September 2, 2004, after a urine sample he submitted tested positive for the presence of cocaine. A Preliminary Notice of Disciplinary Action (PNDA) was mailed to him at his home address in Brick on September 2, 2004. On March 8, 2005, a departmental hearing was held concerning the allegations set forth in the PNDA. That hearing, at which Renieri and his attorney were present, resulted in Renieri's termination after the hearing officer, in a May 23, 2005 written opinion, determined that the charges had been substantiated. A Final Notice of Disciplinary Action (FNDA) accompanied that opinion.
The FNDA was mailed to Renieri at his parents' address in Toms River even though Renieri had properly submitted a change of address on August 16, 2004, listing his Brick address. The UPS tracking system specified that the FNDA had been left at the front door of Renieri's parents' home in Toms River on May 31, 2005, and that no one had signed a receipt acknowledging the delivery. A duplicate copy of the FNDA sent by regular mail to that same address was not returned as undeliverable. Renieri's parents asserted that they never received either copy of the May 23, 2005 FNDA.
Although Renieri's attorney asked the hearing officer at the March 8, 2005 departmental hearing to provide him with a copy of any FNDA that might be issued, he never received a copy of the FNDA or of the accompanying written decision. Not having received any decision, Renieri's attorney wrote to the hearing officer on May 21, 2005 asking to be advised as to the status of the matter and whether or not a decision had been issued. The Department did not respond to that letter.
On June 6, 2005, the Department sent Renieri another letter again addressed to his parents' address in Toms River, explaining the procedure for withdrawing his pension contribution, and Renieri submitted a written request for withdrawal on July 14, 2005. On the application, he checked the box marked "Dismissed" and wrote "9/7/04" on the line marked "Date." On August 1, 2005, the Police and Firemen's Retirement System issued Renieri a check refunding his pension contributions, and Renieri cashed that check.*fn1 A few weeks earlier, in July 2005, Renieri cashed checks for $819 and $947, which were for unused vacation time.
On October 14, 2005, through his attorney, Renieri filed an appeal of the September 7, 2004 PNDA to the Board. In his cover letter accompanying the Major Disciplinary Appeal Form, Renieri's counsel wrote:
The Departmental hearing was held in March of 2005. Although it is typical for the Hearing Officer to take several months, we have still not heard anything and we are asking for an appeal now of Officer Renieri's suspension and presumptive termination. Please process this disciplinary action at your earliest convenience and set a hearing for this matter in the Office of Administrative Law.
On December 20, 2005, the Board denied Renieri's request for an OAL hearing on his appeal. The Board based its denial on Renieri's failure to perfect his appeal within twenty days of having received the FNDA. On January 20, 2006, Renieri filed a motion for reconsideration with the Board, again asking the Board to set his appeal down for an OAL hearing. The Board issued its final administrative action on July 20, 2006, denying reconsideration. The Board found the totality of the circumstances established Renieri was aware of his removal in July 2005 at the latest, and that his filing an appeal on October 15, 2005 was not within a reasonable time.
In reaching that conclusion, the Board pointed to Renieri having cashed the two vacation paychecks that were sent to the correct address in July 2005. The Board also relied on Renieri having submitted a request to withdraw his pension contributions in July 2005. Based solely on Renieri's conduct in July 2005, the Board concluded that ...