August 23, 2007
IN THE MATTER OF ANTHONY RENIERI, APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 14, 2007
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 he "was aware that his employment had been terminated at the very latest in July 2005."
Because Renieri did not file an appeal with the Board until October 15, 2005, more than two months after the Board found Renieri became aware that he had been terminated, the Board concluded that he failed to file his appeal within the reasonable time required by N.J.S.A. 11A:2-15. For that reason, the Board declined to reconsider its December 2, 2005 decision refusing to hear Renieri's appeal. The Board notified Renieri accordingly on July 20, 2006, and Renieri appealed.
On appeal, the Department argues that the Board's final administrative action denying Renieri the opportunity to appeal his termination should be affirmed because the Board's final decision was neither arbitrary, capricious nor unreasonable, and was supported by substantial credible evidence in the record. The Department further argues that agency action is accorded a strong presumption of validity. It contends that a court may not substitute its judgment for that of the agency and, as long as substantial credible evidence supports an agency's conclusion, the court should affirm that determination even though the reviewing panel might have reached a different result.
Renieri, in turn, argues that the Board has made a legal determination that he did not file an appeal in a timely fashion and that, accordingly, the denial of his motion for reconsideration is subject to de novo review, rather than the more deferential standard ordinarily applicable to agency decisions. Specifically, Renieri argues that because no testimony was taken and no hearing was held at the time the Board declined to hear his appeal, the Board's purely statutory determination is subject to de novo review.
The Department is correct in arguing that when reviewing an agency decision, we are obliged to affirm the agency's conclusions and uphold its findings so long as there is sufficient credible evidence in the record to support those conclusions, even if we might have reached a different result. In re Taylor, 158 N.J. 644, 656-57 (1999). That deferential standard of review does not, however, apply when an agency has made strictly a legal determination. Id. at 658. Accordingly, we agree with Renieri that the Board's determination of whether he filed an appeal in a timely manner is a strictly legal determination subject to de novo review and not entitled to the deference ordinarily afforded agency decisions.
N.J.S.A. 11A:2-15 prescribes the time within which a civil service employee aggrieved by an adverse employment action must file an appeal. The statute in relevant part specifies:
[a]ny 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 a reasonable time.
The Department concedes that Renieri did not receive notice of the "final written determination of the appointing authority." N.J.S.A. 11A:2-15. For that reason, Renieri was not obliged to file an appeal within twenty days, but was instead required to do so within "a reasonable time," as the statute provides. The Department argues and the Board agreed, that the nearly three month period between late July 2005, when Renieri ostensibly became aware of his termination, and October 15, 2005, when he filed his appeal, was not a reasonable time.
We conclude that Renieri having cashed two vacation checks and having requested the return of his pension contributions is too slim a reed upon which to base the conclusion that Renieri must have known in July 2005 that he had been terminated with finality. The Department can point to nothing, and indeed the record is devoid of any evidence demonstrating, that Renieri was ever informed that the March 8, 2005 departmental hearing had resulted in a May 31, 2005 FNDA upholding his original termination. The FNDA document itself advises employees of their obligation to file any appeal from an adverse decision within twenty days of the issuance of the decision, but no such notice was ever provided to Renieri because the FNDA was never mailed to him.
Moreover, the Board's decision ignores Renieri's attorney's letter of May 21, 2005 asking to be advised of whether a final decision had been issued. The Department never responded to that letter, even though the FNDA and accompanying opinion of the hearing officer were issued a mere two days later on May 23, 2005. In light of the Department's failure to have ever issued proper notice to Renieri of its May 23, 2005 decision or of his obligation to appeal within twenty days, we disagree with the Board's conclusion that Renieri's cashing of two checks and requesting the return of his pension contributions demonstrate that he was aware in July 2005 that he had been terminated. That conclusion is based on nothing more than surmise and speculation. Further, as the Department acknowledged at oral argument, a terminated employee may provisionally withdraw his pension contribution while pursuing an appeal of the termination, subject to repayment if the appeal is successful.
However, even if we were to accept the Board's finding that the time limit applicable to the filing of Renieri's appeal should start to run at the end of July 2005, we disagree with its conclusion that the appeal submitted by Renieri on October 15, 2005 was not filed within a "reasonable time" as required by N.J.S.A. 11A:2-15. The Board's reliance on our decision in Jones v. Department of Civil Service, 118 N.J. Super. 323 (App. Div. 1972) is misplaced. There we held that the filing of an appeal by an aggrieved employee thirty-three days after the FNDA was issued constitutes a filing within a "reasonable time." Id. at 325-26. We did not conclude, or even suggest, that a filing of an appeal later than thirty-three days is not reasonable.
We agree with Renieri's contention that the Board should have granted his motion for reconsideration of its refusal to hear his appeal, and that its failure to do so was error.
Reversed and remanded for a hearing on the merits before the OAL.