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In re Lobue


May 6, 2008


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

Per curiam.


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)


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, Trenton, N.J. 08625-0322 [Emphasis added.]

After receiving the application materials, petitioner gathered additional information to enable him to complete the application form.*fn2 By petitioner's own admission, he obtained that information on July 19, 2004, two days before the application deadline. Nevertheless, petitioner did not mail his application and have it postmarked by the July 21 deadline. Instead, he hand-delivered his application on July 22. The record is bereft of any proof that any officials with the DOP or the Police Department told petitioner before the mailing deadline that he could ignore the deadline and hand in his application after the deadline had passed.

The DOP initially declined to let petitioner sit for the promotional exam, after discovering that his application was not timely submitted. After petitioner's counsel indicated that he would appeal that lateness determination, the DOP allowed petitioner to take the exam provisionally, while the administrative appeal was pending. Petitioner scored second on the exam. As of the time of the oral argument before us, the lieutenant who had scored above petitioner on the exam, Mark Competello, had not been promoted.

Petitioner argued to the Board that his late submission of the application should be excused, mainly because the Police Department had failed to post the promotional announcement in a timely and conspicuous manner, and because he did not receive his personal copy of the announcement in the mail until July 17, four days before the filing deadline. Petitioner also contended that the application materials were confusing, because they listed a "closing date" that was several months after the "application deadline," and he had initially presumed that he did not need to submit his completed form until the later date.

On February 10, 2005, the Board issued a written final agency decision rejecting petitioner's request to extend the application deadline. Among other things, the Board relied upon N.J.A.C. 4A:4-2.1(e), which provides that exam applications must be filed no later than the announced filing date and that, when mailed, the postmark date will be considered the date on which the application is filed. As the Board noted, "[t]his provision is necessary for the [DOP] to properly process the voluminous applications for various examinations." The Board also observed, irrespective of petitioner's contentions that the announcement was not duly posted in his workplace and that there was a delay in the mails, "it is undisputed that [Petitioner] received an application prior to the filing deadline." The Board also found significant petitioner's admission that by July 19, two days before the deadline, he had collected all the information he needed to fill out the form. The Board further observed that petitioner "has not presented any explanation as to why he was unable to complete the application and file it before the filing deadline."

Petitioner moved for reconsideration before the Board, and presented additional documentary materials, including various items from other civil service proceedings and communications involving other Hoboken officials. Among other things, petitioner contended that Hoboken officials were waging a vendetta against him, allegedly in retaliation for providing testimony adverse to his superiors in other personnel matters. Petitioner also endeavored to show that the police officials had lied to the DOP about the posting of the promotional announcement.

After considering these and other assertions, the Board denied reconsideration in a written decision on October 6, 2006. Again, the Board stressed that "it is undisputed that [Petitioner] received an application . . . with enough time to complete the application and file it in a timely manner," and that "[petitioner] still has failed to provide an explanation as to why he was not able to file a timely application." The Board specifically rejected petitioner's claim that the deadline on the form was confusing, as the difference between the July 21 application deadline and the September 30 closing date "is clearly explained on the announcement." The Board also noted that petitioner's allegation that the City harbored a bias against him was not established in the administrative record.

Petitioner appeals the Board's final decision. He mainly argues that the Board's unwillingness to excuse his late application is arbitrary, capricious and unreasonable. As subsidiary points, he asserts that the Board's ruling violates the State Constitution and legislative policies to foster civil service appointments based upon merit and fitness; that he established good cause to submit his completed application a day late; that he was entitled to an evidentiary hearing on the alleged posting of the promotional notice; and that other administrative litigation has revealed improprieties in the City's appointments to police captain and other titles that confirm his perceptions of bias.

Having fully considered petitioner's arguments, we affirm the Board's final agency decision. In doing so, we are acutely mindful of our limited standard of review. "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

As the Supreme Court noted in Herrmann, "[t]hree channels of inquiry inform the appellate review function." Id. at 28. These are:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Ibid. (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

"When an agency's decision meets [these] criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid.

We note that our traditional deference to administrative agency's prerogatives is particularly applicable here, in this context implicating the DOP's day-to-day oversight of civil service examinations for public employees throughout the State. See N.J.S.A. 11A:4-1. As the Board aptly recognized, the DOP regularly processes "voluminous applications for various examinations." The DOP's pertinent regulation, N.J.A.C. 4A:4-2.1(e), makes clear that applications to sit for those exams must be submitted on or before the announced deadline. We agree with the Board's finding that the July 21 postmark deadline in petitioner's application materials was prominent and unambiguous. Nothing in those forms would lead a reasonable person to presume that he or she could walk into the DOP the day after the deadline had passed and hand in the completed form.

Petitioner argues that his lateness was de minimis and that the DOP likely received his hand-carried form before those that other applicants postmarked on the day before had arrived in the mail. That argument is unavailing. By analogy, a taxpayer, absent a timely request for an extension filed on or before the April 15 deadline, cannot hand-deliver his or her tax return to an IRS office on April 16 without adverse consequences. See, e.g., Maerki v. Comm'r of Internal Revenue, 70 T.C.M. (CCH) 820 (T.C. 1995). The agency has a reasonable administrative basis to insist that all applicants follow a common protocol, and to avoid the potential difficulties and errors that could easily arise by allowing individuals to bypass that protocol after the mailing deadline has already passed.

Petitioner cites to N.J.A.C. 4A:1-1.2(c), which allows the DOP to relax certain of its rules upon a demonstration of "good cause." We defer to the Board's finding that petitioner failed to demonstrate such good cause, particularly given his repeated failure to explain why he did not simply place his completed form in the mail after he had gathered all the necessary information two days before the postmark deadline. This is not a situation, for example, where the applicant had a medical or family emergency that prevented him from going to the post office. Nor is it a situation in which there is proof that petitioner was misinformed about the filing deadline by officials in the DOP or by the local appointing authority.

We also agree with the Board that petitioner's allegations of local bias in Hoboken do not suffice to excuse his failure to act on time. We recognize that we have previously observed in a related opinion that the City of Hoboken expanded and then abruptly contracted its police table of organization and made various appointments that were controversial and peculiar. LoBue v. City of Hoboken, No. A-1404-05 (App. Div. June 8, 2007) (slip op. at 8-10). We are also mindful that petitioner has made various allegations of impropriety concerning those actions, which are still cognizable in his separate action against the City in the Law Division, which now may be revived with the disposition of this appeal. Pursuant to the terms of our prior opinion in LoBue, supra, slip op. at 32, petitioner may still be entitled to injunctive or other relief in the Law Division.

We have considered the remainder of petitioner's contentions, including his claims of unconstitutionality, and find them without sufficient merit to discuss in this written opinion. R. 2:11-3(e)(1)(D) and (E).


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