September 21, 2007
IN THE MATTER OF RENEE COPELAND, POLICE DEPARTMENT, CITY OF NEWARK.
On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2006-3569.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Graves and Alvarez.
The issue in this case is whether the Merit System Board (Board) erred in dismissing Renee Copeland's untimely appeal from a Final Notice of Disciplinary Action (FNDA) that terminated Copeland's employment as a Newark police officer. Copeland contends the matter should be remanded to the Board for a "full hearing on her discharge from employment with the Newark Police Department." Based on our review of the record and the applicable law, we are convinced the Board's decision to dismiss Copeland's untimely appeal was neither arbitrary, capricious, nor unreasonable. Accordingly, we affirm.
Renee Copeland was employed by the Newark Police Department as a patrol officer from December 30, 1996, until June 1, 2005, when she was suspended for violating the police department's rules and regulations prohibiting the illegal use of drugs. On May 12, 2005, Copeland was required to provide a urine specimen for drug screening, which tested positive for cocaine and opiates. On June 1, 2005, Copeland was charged with violations of the police department's rules and regulations, and on June 2, 2005, the City of Newark issued a Preliminary Notice of Disciplinary Action that suspended Copeland, without pay, for an indefinite period of time. Following a departmental suspension hearing on June 20, 2005, Copeland's indefinite suspension pending resolution of the charges was sustained, and Copeland was served with an FNDA on June 30, 2005.
According to Copeland, she initially elected to have a final hearing regarding the charges filed against her, but she ultimately elected to waive the December 20, 2005, final hearing and requested a hearing in the Office of Administrative Law. Nevertheless, a final hearing was held on December 20, 2005, and an FNDA dated December 20, 2005, was served on Copeland and faxed to her attorney on December 28, 2005. The FNDA notified Copeland she had been found guilty of the charges against her and that her employment had been terminated effective June 1, 2005. The FNDA also advised Copeland she had the right to appeal and that any appeal had to be filed with the Board "within 20 days of receipt of this form." See N.J.S.A. 11A:2-15 ("[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."); N.J.A.C. 4A:2-2.8(a) ("An appeal from a Final Notice of Disciplinary Action must be filed within 20 days of receipt of the Notice by the employee."). Nevertheless, neither Copeland nor her attorney filed a timely appeal.
In a letter to the Board dated March 2, 2006, Copeland's attorney requested permission to file an untimely appeal due to "excusable neglect." The letter reads as follows:
Please be advised that I represent Renee Copeland in the above-captioned matter.
On December 28, 2005 a Final Notice of disciplinary Action was faxed to my office. (see enclosed).
On January 2, 2006 my secretary quit without notice. I was going through a transition without a secretary. During that time I was also on trial in Superior Court on several Criminal matters.
I employed a Secretary (Sidney Ruffin) on February 6, 2006. On Thursday, February 23, 2006 my secretary while going through Officer Copeland's file noticed that the letter of appeal had not been filed nor was it d[ai]ried in the calendar.
I am presently requesting excusable neglect of the Merit Board in allowing the Letter of Appeal to be filed out of time. In so far as Officer Copeland has meritous issues to raise on her appeal.
Thank you for your attention and cooperation in this matter.
On March 23, 2006, the Board denied Copeland's request to file an untimely appeal, and on May 11, 2006, Copeland filed a notice of appeal with this court.
"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." In re Musick, 143 N.J. 206, 216 (1996) (citing Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). "We will not reverse an agency's [final] decision unless: (1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which it was based were not supported by substantial, credible evidence in the record." Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007). See generally, Pressler, Current N.J. Court Rules, comment 7.2 on R. 2:10-2 (2007).
Copeland candidly concedes she was required to file her appeal by no later than January 18, 2006. However, her appeal was not filed until March 9, 2006. Nevertheless, because of the circumstances detailed by her attorney, Copeland contends the Board erred in rejecting her untimely appeal. We cannot agree. Based on our review of the record, we are satisfied the Board's decision to reject Copeland's untimely appeal was not unreasonable because Copeland failed to demonstrate the untimely filing was "attributable to an honest mistake that is compatible with due diligence or reasonable prudence." Mancini v. EDS, 132 N.J. 330, 335 (1993); see also Mesghali v. Bayside State Prison, 334 N.J. Super. 617, 623 (App. Div. 2000) ("[R]easonable prudence from an employee facing removal from employment and a relatively short appeal period should have motivated [Copeland] to verify [her] attorney's expected action."), certif. denied, 167 N.J. 630 (2001). Thus, it is clear Copeland failed to establish "good cause" for filing an untimely appeal, and we find no basis to disturb the Board's final decision. N.J.A.C. 4A:1-1.2(c).
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