On appeal from a Final Administrative Action of the Merit System Board, Docket No. 2006-5020.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and R. B. Coleman.
Petitioner Alvin Sumter appeals from a final decision rendered by the Merit System Board (Board) on September 21, 2006 denying petitioner's motion for reconsideration of its December 7, 2005 decision dismissing his appeal from a disciplinary action on the ground that it was not timely filed in accordance with N.J.S.A. 11A:2-6(a)(1) and N.J.A.C. 4A:2-2.8(a).
Petitioner was employed as a parks attendant by the City of Jersey City (City). A final notice of disciplinary action dated December 7, 2005 charged him with insubordination, chronic or excessive absenteeism and neglect of duty. Those charges were sustained after a hearing on November 29, 2005, and he was dismissed from his employment effective December 12, 2005. Petitioner received the notice of disciplinary action on December 17, 2005. He filed an appeal with the Department of Personnel (DOP), which was postmarked January 9, 2006, rendering his appeal out of time.
In his application for reconsideration, petitioner argued that his attorney filed the appeal within a week after receiving it from his union. He maintained that disciplinary appeals "must be filed within [twenty] days of either the appellant having notice or reasonably being aware of the decision, situation or action being appealed."
In its decision rejecting petitioner's motion for reconsideration, the Board noted that this disciplinary action was governed by N.J.S.A. 11A:2-13 and N.J.S.A. 11A:2-6a(1), which establish a twenty-day limit for appeals. The Board correctly noted that the "[twenty]-day time limitation is jurisdictional and, contrary to the appellant's assertion, cannot be relaxed. See Borough of Park Ridge v. Salimone, 21 N.J. 28, 46 (1956).
In this appeal, petitioner argues that (1) the City should be estopped from asserting that the appeal was untimely because of the defective and confusing nature of the final notice of disciplinary action; and (2) the time limitations of N.J.A.C. 4A:2-2.8 should be relaxed.
We have carefully considered the record in light of petitioner's arguments and we find that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we make the following comments.
The notice of disciplinary action is a standard form, which is clear on its face. The City has a return receipt indicating that petitioner received the notice on December 17, 2005. The form itself indicates that it must be appealed within twenty days. Petitioner has not provided any evidence of a reasonable excuse for the delay, nor has he presented a meritorious defense.
Our scope of review of administrative decisions is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). Our role is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole'" and "with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We "may not 'engage in an independent assessment of the evidence.'" In re Taylor, supra, 158 N.J. at 656 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We will accord a strong presumption of reasonableness, Smith v. Ricci, 89 N.J. 514, 525 (1982), and give great deference to administrative decisions. State v. Johnson, 42 N.J. 146, 159 (1964). We do not, however, simply rubber stamp the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An administrative decision will be reversed only when it is found to be "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid.