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In re Santiago


July 11, 2008


On appeal from a Final Administrative Decision of the Merit System Board. DOP Docket No. 2007-2718.

Per curiam.


Argued March 11, 2008

Before Judges Skillman and LeWinn.

Appellant Carlos Santiago was employed by the Department of Corrections (the Department) as a Senior Corrections Officer assigned to Mountainview Youth Correction Facility. On February 23, 2006, appellant was served with a Preliminary Notice of Disciplinary Action (PNDA), charging him with conduct unbecoming a public employee and violation of rules prohibiting improper or unauthorized contact with inmates, and removing him from employment. By letter dated April 24, 2006, appellant's attorney waived his departmental hearing and requested the issuance of a Final Notice of Disciplinary Action (FNDA).

The Department asserts that it issued an FNDA on April 24, 2006. However, neither party has submitted that document for our review. Appellant contends that his counsel made telephone calls and sent correspondence to the Department requesting the FNDA, but the Department never responded to any of those requests. Appellant submits his attorney's letters of July 14, July 18, and September 13, 2006. The July 14 letter was addressed to Peter Gerke, a hearing officer with the Department. The letters of July 18 and September 13 were addressed to Mountainview Youth Correctional Facility, the former to Administrator Bruce Hauck and the latter to Captain Marafioti.

On October 2, 2006, appellant filed an appeal of his removal with the Merit System Board (the Board). His request for a hearing was denied on December 4, 2006, on the grounds that his appeal was not perfected within twenty days of receipt of the FNDA, as required by N.J.S.A. 11A:2-15.

Appellant filed a motion for reconsideration, attaching his attorney's three letters. On March 2, 2007, the Board denied appellant's motion for reconsideration, finding insufficient evidence to demonstrate that appellant filed a timely appeal of his FNDA.

The Department contends that "[p]ostal records indicate that the FNDA was delivered to Santiago's residence on April 29, 2006." To support this contention, the Department relies solely upon a United State Postal Service "Track & Confirm" slip, that states: "Your item was delivered at 11:43 am on April 29, 2006 in EASTON, PA, 18045. A proof of delivery record may be available through your local Post Office for a fee." This slip identifies neither the sender nor the recipient. The contents of the "item" delivered are not described.

Appellant has never stated that he did not, in fact, receive his FNDA on April 29, 2006. Rather, he asserts that he was "in contact" with his attorney and "at no time ever indicated he received any [FNDA]."

The Board addressed this issue in its March 2, 2007 decision:

On appeal, the appellant submits three letters authored by his attorney to various representatives of the appointing authority, requesting issuance of the FNDA in this matter. Specifically, the appellant's attorney contacted the hearing officer by letter dated July 14, 2006, the prison's administrator on July 18, 2006, and a Correction Captain on September 13, 2006. The appellant contends that he received no response to these inquiries, and he finally decided to file an appeal directly with the Board in early October 2006.

It is noted that, upon receipt of this matter, copies of the postal records relating to the delivery of the FNDA were provided to the appellant. The appellant submitted no further arguments or evidence in response. Similarly, despite being provided the opportunity to supplement the record, the appointing authority has provided nothing further for the Board's review.

Notwithstanding the lack of supplementation of the record, the Board concluded that "there is evidence in the record that the appellant received the FNDA[] via certified mail on April 29, 2006." The Board further noted that appellant's "attorney's actions in this matter demonstrate that he did not receive the FNDA; however, there is nothing in the record to refute the postal records indicating that the FNDA was delivered to the appellant."

On this record, the Board concluded that "the appellant's October 2, 2006 appeal was untimely." The Board noted that "the failure to serve a copy [of the FNDA] upon [appellant's] attorney does not justify accepting an appeal filed over five months later."

Appellant now argues that the Board's decision infringes upon the [appellant's] right to be represented and the inaction of a governmental agency to even respond to counsel for the [appellant]. If this decision is allowed to stand, then this Court is sending a message to the State that it need not deal with counsel. In fact, the representation of counsel will become utterly meaningless in real terms.

This argument ignores the fact that the onus was on appellant either to advise his attorney when he received the FNDA or, alternatively, to give his attorney affirmative notice of the failure to receive that FNDA in a timely manner. Appellant's representations as to his communication with his attorney on this critical issue are ambiguous, at best. The record contains no certification from appellant, himself, but only his attorney's statement, in his brief, that "at no time [did appellant] ever indicate[] he received any [FNDA]."

N.J.A.C. 4A:2-2.8 governs this situation:

(a) An appeal from a Final Notice of Disciplinary Action must be filed within 20 days of receipt of the Notice by the employee. Receipt of the Notice on a different date by the employee's attorney . . . shall not affect this appeal period.

(b) If the appointing authority fails to provide the employee with a Final Notice of Disciplinary Action, an appeal may be made directly to the Board within a reasonable time. [(Emphasis added).]

This administrative regulation was amended in 1995 expressly to clarify that the date on which the employee receives the FNDA triggers the running of the twenty-day time period to file an appeal. Mesghali v. Bayside State Prison, 334 N.J. Super. 617, 622 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001).

Our review of agency action is strictly limited.

[T]he judicial role is generally restricted to three inquiries: (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. [Mazza v. Bd of Trs., Police & Fireman's Ret. Sys., 143 N.J. 22, 25 (1995).]

"Unless a Court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We do not substitute our judgment for that of an agency, even if we come to a different conclusion. In re Carter, 191 N.J. 474, 483 (2007).

Pursuant to these standards, we affirm the Board's decision. "Here, the agency has strictly applied a jurisdictional requirement pursuant to a lawfully promulgated rule that [appellant] does not contend should be invalidated for any reason. Under such circumstances we cannot find the Board's action to be arbitrary, capricious or unreasonable." Mesghali, supra, 334 N.J. Super. at 622. The Board relied upon the postal receipt as evidence that appellant received timely notice of his FNDA. Appellant does not expressly refute that conclusion. While appellant takes issue with the lack of specific identifying information on that receipt, he nowhere states that he did not receive the FNDA.

Under the circumstances, the Board's reliance upon that postal receipt as evidence of timely notice to appellant was a proper exercise of discretion. Even assuming, however, that the "appointing authority fail[ed] to provide [appellant] with [an FNDA]," nonetheless appellant did not file his appeal "within a reasonable time." N.J.A.C. 4A:2-2.8(b). As the Board concluded: "[W]aiting over five months to pursue his appeal with the Board was unreasonable, particularly given that the appellant waived his departmental hearing and the issuance of an FNDA was, thus, a formality."

We defer to the Board's judgment in this matter. As we have noted: "When a statutory time limitation for filing an administrative appeal is mandatory and jurisdictional, it may be extended only by the legislature, not by an agency or the courts." Meghali, supra, 334 N.J. Super. at 621.

Appellant's reliance upon Jones v. Dep't of Civil Serv., 118 N.J. Super. 323 (App. Div. 1972), is misplaced. In that case, the employee's attorney wrote to the appointing authority within the twenty-day period, objecting to the removal decision. Id. at 325. Receiving no response to that letter, the attorney filed an appeal less than three weeks after the expiration of the twenty-day time limit. On those particular facts, we held that the employee was entitled to a hearing on his appeal. Id. at 325-26.

The facts in this case are dramatically different, given appellant's five-month delay in pursuing his appeal. Moreover, Jones pre-dates the 1995 amendment to N.J.A.C. 4A:2-2.8.



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