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In re Lobue

May 6, 2008

IN THE MATTER OF DANIEL LOBUE, POLICE CAPTAIN (PM3549F), CITY OF HOBOKEN


On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2005-3118.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 21, 2008

Before Judges Lintner and Sabatino.

Petitioner Daniel LoBue,*fn1 a Hoboken police officer, hand-delivered his application to sit for a promotional examination one day after the postmark deadline for submitting applications had expired. The central issue in this appeal is whether the Merit System Board ("the Board") was arbitrary, capricious and unreasonable in determining that the lateness of petitioner's application made him ineligible to sit for the exam.

We affirm the Board's final agency decision. We do so particularly in light of (1) the prominent display of the postmark deadline on the application materials, (2) petitioner's admission that he had gathered, by two days before the deadline, all the information that he needed to complete the application, (3) the absence of any medical impediments or family emergencies preventing him from mailing the application on time, and (4) the lack of proof of any contrary assurances from petitioner's superiors or the exam administrators advising that he could hand-deliver the application after the deadline, in lieu of mailing it on time.

LoBue holds the rank of lieutenant in the Hoboken Police Department ("the Police Department"). The record shows that on July 1, 2004, the New Jersey Department of Personnel ("the DOP"), at the request of the Police Department, issued a promotional announcement for a civil service examination for the rank of police captain, which is the next rank above lieutenant. On that date, the Police Department mailed the announcement and a corresponding two-page application form to all Hoboken lieutenants meeting the time-in-service requirements, including petitioner. Petitioner contends that the mailing did not arrive at his apartment until July 17, 2004, a contention that we will accept for purposes of our review.

The application materials clearly and prominently specify the deadline for submitting a completed application. The promotional announcement instructs that completed applications must be sent to the DOP at a specified address and post office box in Trenton. The top portion of the announcement states, right below the applicable salary range, the following information:

APPLICATION DEADLINE: July 21, 2004 (Applications must be postmarked by this date)

JURISDICTION CODE: N09050010

CLOSING DATE: September 30, 2004

(Eligibility must be established by this date)

As shown above, the application deadline was highlighted through the use of bold-faced text and prefatory capital letters. In addition, the application form mailed with the announcement instructs, again in bold-faced text:

Return your completed application no later than the last date for filing listed on the announcement to: N.J. Dept. of Personnel, 44 S. Clinton Ave., P.O. Box 322, ...


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