On appeal from a Final Administrative Decision of the Merit System Board. DOP Docket No. 2007-2718.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...