August 27, 2008
IN THE MATTER OF SHAE NORRIS, ESSEX VICINAGE, SUPERIOR COURT OF NEW JERSEY.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 5, 2008
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 sufficient to give him notice of his removal and his fifty-three-day delay in filing his appeal was unreasonable.
An employee's appeal from an appointing authority's adverse action must be made in writing to the Board no later than twenty days from receipt of the final written determination of the appointing authority. N.J.S.A. 11A:2-15. If the appointing authority fails to provide a written determination, an appeal may be made directly to the board within a reasonable time. Ibid. The Court has construed the language of this statute as jurisdictional and "mandatory in its requirement." Borough of Park Ridge v. Salimone, 21 N.J. 28, 46 (1956) (citing Weaver v. New Jersey Dep't of Civil Serv., 6 N.J. 553, 558 (1951)). Further, regulations adopted by the Board to implement the statute also provide that "an appeal must be filed within 20 days after either the [employee] has notice or should reasonably have known of the decision, situation or action being appealed." N.J.A.C. 4A:2-1.1(b). Moreover, the Board specifically requires that an "appeal from a Final Notice of Disciplinary Action must be filed within 20 days of receipt of the Notice by the employee." N.J.A.C. 4A:2-2.8(a).
Here, we accept the Board's implicit conclusion that Norris failed to present competent proof that his address change had been properly filed with the Vicinage prior to his termination. It is, however, undisputed that the Vicinage received notice that he had moved and the correct address from his mother in the January 25 e-mail to HR. It is also undisputed that the certified letter containing the FNDA remained unclaimed, a fact about which the Vicinage presumably became aware at a later date. Rather than resend the FNDA to Norris at his new address via certified mail, the Vicinage did nothing. By the Vicinage's inaction, it essentially imputed to Norris's mother the obligation to personally serve Norris with the FNDA.
Given the statutory and regulatory consequences for the untimely filing of a notice of appeal, we do not believe an appointing authority discharges its notice obligation to an employee against whom adverse action has been taken by relying upon representations from an employee's relative with whom the employee no longer resides. Compare Rule 4:4-4 (permitting personal service "by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein[.]") Even assuming both letters were at Norris's mother's house on January 25,*fn2 according to Norris, what he picked up was the January 8, 2007 letter advising him that he was going to be removed, not the FNDA. Because the Vicinage did not resend the FNDA to Norris's new address and because the certified mail was returned as undelivered, the Vicinage did not establish that Norris was personally served with the FNDA on January 25, 2007. In our view, the fact that the letter mailed first class was not returned is not dispositive. Service of the FNDA, pursuant to N.J.A.C. 4A:2-2.6(d), required the Vicinage to "furnish [Norris] either by personal service or certified mail with a Final Notice of Disciplinary Action." (emphasis added)
We also find that in light of the procedural history of the case, the passage of fifty-three days between Norris's receipt of the January 8 letter and the filing of his notice of appeal on March 19, 2007, was not unreasonable. As Norris points out in his appellate brief, the charges against him originated in early December 2005. He quickly sought an informal hearing and, following the receipt of the PNDA, he immediately sought a formal hearing. The hearing did not begin until May and was not concluded until August. Thereafter, a recommendation from the hearing officer did not issue until four months later, in December 2006. Thus, based upon the length of time that elapsed between his original suspension and the recommendation of the hearing officer a year later, we do not find the fifty-three-day delay in responding to the January 8, 2007 letter unreasonable. Moreover, the January 8 letter did not apprise Norris of his appeal rights. Jones v. Department of Civil Service, 118 N.J. Super. 323, 325-26 (App. Div. 1972). In so far as the Board questioning Norris's inability to pinpoint the date he actually received the FNDA in March, that date is irrelevant since he filed his appeal on March 19, within twenty days of any day in March 2007 that he may have received the FNDA.
Reversed and remanded for a hearing on the merits.