On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2007-3792.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Baxter.
Shae Norris, formerly a State of New Jersey Judiciary Clerk 2 assigned to the Essex County Superior Court, Civil Division (Vicinage), the appointing authority, appeals from the final decision of the Merit System Board (Board) dismissing his appeal of his termination from employment. The Board determined that Norris failed to file a timely appeal of his discharge. The Board concluded that it was not persuaded by any of Norris's arguments that he did not have sufficient notice regarding his removal and that even assuming he did not receive the Final Notice of Disciplinary Action (FNDA) in January 2007, he did, at that time, receive notice that he was going to be removed and failed to present any compelling reason as to why he did not pursue his appeal until fifty-three days after he received that notice. We conclude that the Board's decision, based upon the factual record before it, does not "advance the welfare of the public and protect permanent employees in the classified service by preventing their removal except for cause after due notice and hearing," Mason v. Civil Serv. Comm'n, 51 N.J. 115 (1968), and was therefore arbitrary and unreasonable. We reverse and remand the matter for a hearing on the merits of the removal action.
On December 5, 2005, Norris was suspended without pay following an informal pre-termination hearing during which the Vicinage accused Norris of hiding twenty-two boxes of mail, an allegation that Norris has denied. The next day, the Vicinage issued a Preliminary Notice of Disciplinary Action (PNDA) seeking Norris's discharge from employment, charging him with failure to perform duties, N.J.A.C. 4A:2-2.3(a)(1); conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(7); and neglect of duty, N.J.A.C. 4A:2-2.3(a)(6). Norris filed a timely request for a department level hearing that was conducted over five days between May and August 2006. On December 12, 2006, the hearing officer issued a decision recommending a six-month suspension without pay rather than termination. The Vicinage rejected the recommendation and, in a letter dated January 8, 2007 authored by the Vicinage Trial Court Administrator (TCA), Collins E. Ijoma, advised Norris that the Vicinage had decided not to accept the hearing officer's recommendation, its reasons for rejecting the recommendation and that Ijoma was "directing the Human Resources Manager to terminate [Norris's] employment with the Essex Vicinage of the New Jersey Superior Court, effective December 5, 2005." The FNDA was mailed to Norris on January 16, 2007, and Norris did not file his appeal of the decision until March 19, 2007.
In the appeal papers filed with the Department of Personnel (DOP), Norris claimed that he did not receive the decision until March because the FNDA was sent to the wrong address. The DOP requested additional information from Norris and the Vicinage in order to assist it in the determination of whether Norris's appeal was timely. Both parties responded.
According to the affidavit submitted by Sheila Y. Devereaux, Human Resources (HR) Division Manager for the Vicinage, "[o]n January 16, 2007, my office served [an FNDA] on Mr. Norris via first class and certified mail to the following address: 20 Pikeview Lane, Woodbridge. The certified mail to Mr. Norris was returned to my office marked unclaimed, however, the first class mail was not returned." She also acknowledged receiving an e-mail from Norris's mother on January 25, advising her that Norris no longer lived at the Woodbridge address and providing her with his new address in West Orange.*fn1
In his affidavit, Norris claimed that he was not living in Woodbridge at that time and, without specifying when he moved from the Woodbridge address, he stated that he had been living in West Orange for "some time." He also claimed that he had previously notified the Vicinage of his address change "on several occasions" while he was still employed by the Vicinage. Norris stated that the letter he picked up from his mother's house was the January 8 letter and that he did not receive the FNDA correspondence until some unspecified date in March when he picked up the mail from his mother's house, after which he filed his appeal to the Board, on March 19.
The Board determined that the appeal was untimely. It reasoned that even assuming that Norris received the January 8 letter on January 25 rather than the FNDA, that letter clearly indicate[d] that the appointing authority was rejecting the hearing officer's recommendation and directing his removal effective December 5, 2005. As such . . . he knew he was being removed by January 25, 2007 . . . . Other than his argument that he did not receive the FNDA via regular mail until "March 2007," the appellant provides no explanation as to why he did not pursue his appeal during the interim period.
The Board also noted that Norris failed to provide any "specific information as to when he changed his address with the appointing authority[,]" and found his statement that he received the FNDA in March vague and concluded it was unusual that Norris had not noted the date he actually received the FNDA or provided a copy of the envelope containing the FNDA as part of his submissions to the Board. Thus, the Board found, as a fact, that Norris "had notice of his removal as of January 25, 2007[,] and he has not presented any compelling reason as to why he did not pursue his appeal until 53 days after he received such notice." The present appeal followed.
On appeal Norris contends the Board's conclusion that the appeal was untimely was arbitrary and capricious because he complied with the notice provisions of N.J.A.C. 4A:2-2.8(a) by filing his appeal within twenty days of his actual receipt of the FNDA and that he filed his appeal within a reasonable period of time pursuant to N.J.A.C. 4A:2-2.8(b). The Board urges us to conclude that there was sufficient credible and substantial evidence to support the Board's conclusion that Norris was aware of his termination as of January 25, 2007, and that the Board's finding on this issue should be accorded deference.
In our review of a final determination from an administrative agency, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing to Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). "Absent arbitrary, unreasonable or capricious action, the agency's determination must be affirmed." Ibid. (citing R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)). The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action. McGowan v. New Jersey State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., Div. of Med. Asst., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
Here, the Board found as a fact that Norris had notice that he was being removed as of January 25, 2007. It did not, however, specifically find as a fact that Norris's notice of his removal was by virtue of his receipt of the FNDA on that date. Instead, it raised questions as to the veracity of Norris's contention and concluded that the undisputed fact that he received the January 8 notice was ...