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In re Delgado

October 15, 2009


On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2006-441.

Per curiam.


Submitted September 24, 2009

Before Judges Skillman and Gilroy.

Appellant Justo Delgado appeals from the June 13, 2008 final decision of the Merit System Board (Board),*fn1 upholding his removal from the Department of Public Works (DPW) in the City of Union City (City), because he failed to perform his duties, was not able to perform his assigned duties, and for insubordination. We affirm.

Appellant's employment as a street sweeper commenced in January 1999. In September of that year, the City changed appellant's title to that of laborer, a title appellant held until removed from employment. During employment, appellant suffered two work-related injuries in February 2003 and July 2004, the residuals of which restrict him from lifting objects weighing in excess of ten pounds.

On March 17, 2005, the City served appellant with a Preliminary Notice of Disciplinary Action (PNDA) signed by Luis Martin, the Commissioner of the DPW, seeking appellant's removal, charging him with: failure to perform duties; inability to perform duties; chronic or excessive absenteeism; and neglect of duty. On June 9, 2005, Filippo Iacovelli, the Deputy Director of the DPW, notified appellant that the City had dismissed the PNDA.

On June 10, 2005, the City served appellant with a second PNDA signed by Iacovelli, again seeking appellant's removal, A-5463-07T3 accusing him of the same four charges as contained in the March 2005 PNDA, and of the additional charge of insubordination. On June 23, 2005, Hearing Officer Lane J. Biviano, Esq., conducted a disciplinary hearing, after which he determined that the City had proven the disciplinary charges by a preponderance of the evidence, and recommended appellant's removal from employment. On July 8, 2005, the City served appellant with a Final Notice of Disciplinary Action (FNDA) signed by Iacovelli, terminating appellant's employment, effective July 11, 2005. On July 25, 2005, appellant filed an appeal to the Board.

The Board referred the matter to the Office of Administrative Law (OAL) as a contested case. On June 15, 2007, the Administrative Law Judge (ALJ) issued his initial decision, recommending that the charges be dismissed and appellant be reinstated to his position as laborer because Iacovelli lacked statutory and local governmental authority to bring the charges, seeking appellant's removal from employment.*fn2 On September 17, 2007, the Board issued its decision remanding the matter back to the OAL, concluding that Iacovelli had the authority to execute the PNDA and FNDA, and alternatively, that Iacovelli's actions had been ratified by Martin. In so determining, the Board reasoned:

Upon a de novo review, the Board disagrees with the ALJ's conclusion that Iacovelli could not sign the PNDA and FNDA. The ordinance and N.J.S.A. 40:72-9 explicitly state that the "acts of such deputy shall, in all cases, be as legal and binding as if performed by the director." The only duty that cannot be delegated to the deputy is attendance at the Board of Commissioners meetings. Although Martin claims that he did not give Iacovelli the authority to sign disciplinary notices, these duties were delegated to Iacovelli as evidenced by Martin's conduct and inaction. In this regard, Martin permitted Iacovelli to manage the daily operations of the department and Martin had notice of disciplines issued by Iacovelli. Thus, Martin ratified Iacovelli's actions. Although Martin failed to file a written list of duties with the city clerk, it would be illogical to conclude that Iacovelli was not authorized to perform certain actions simply because no duties were ever placed in writing. Moreover, Iacovelli's actions were not ultra vires, as the appellant essentially argues. An ultra vires act is an action taken by an official without capacity to perform the act and cannot be ratified. See generally, Maltese v. Township of New Brunswick, 353 N.J. Super. 226 (App. Div. 2002); Grimes v. City of East Orange, 288 N.J. Super. 275 (App. Div. 1996). The ordinance and N.J.S.A. 40:72-9 provided Iacovelli with his authority, as the duties in question may be delegated to him. Further, the Board notes that Martin's May 16, 2006 letter was issued almost a year after the FNDA. If Martin did not approve of the removal, the time for him to act was in June 2005.

On March 27, 2008, the ALJ issued a second initial decision, based on the original record, recommending that the Board uphold appellant's removal from employment, determining the City had presented credible evidence supporting the charges of failure to perform duties, inability to perform duties, and insubordination, but not the charges of chronic and excessive absenteeism and neglect of duty. On June 13, 2008, the Board adopted the ALJ's findings and issued its final decision affirming appellant's removal.

On appeal, appellant argues that Iacovelli was not properly authorized to execute the PNDA and the FNDA; the City improperly failed to reinstate him after Martin sent a letter on May 16, 2006, to the City's Department of Personnel, stating that appellant should be reinstated; the City failed to accommodate his disability, in violation of the Americans with Disabilities Act of 1990*fn3 and the New Jersey Law Against Discrimination;*fn4 the City's actions in removing him from employment constituted an unlawful retaliatory action for filing the workers' compensation claims, in violation of N.J.S.A. 34:15-39.1; and the Board's decision was not supported by credible evidence in the record.

We begin our consideration of the issues raised by restating certain applicable principles. The role of an appellate court in reviewing a final decision reached by an administrative agency is limited. In re Herrmann, 192 N.J. 19, 27 (2007); In re Taylor, 158 N.J. 644, 656 (1999). The court must give deference to a final agency decision, such as the Board's, unless the decision is arbitrary, capricious, unsupported by substantial credible evidence in the record, or is in violation of express or implicit legislative policy. In re Taylor, supra, 158 N.J. at 656-57; Karins v. City of Atl. City, 152 N.J. 532, 540 (1998).

Thus, an appellate court must determine whether the agency's findings could have reasonably been reached on sufficient credible evidence in the record, "considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). However, an agency's decision that is manifestly erroneous is not entitled to judicial deference and must be set aside. L.M. v. State, Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). Nor is ...

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