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In re Carter

March 25, 2010

IN THE MATTER OF WILLIAM CARTER, APPELLANT.


On appeal from Civil Service Commission, Docket No. 2007-3089.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 8, 2010

Before Judges Rodríguez and Chambers.

William Carter appeals from the Final Administrative Action of the Civil Service Commission dated December 12, 2008, denying his request for reconsideration and concluding that his appeal was untimely. We affirm.

These are the salient facts. On June 27, 2005, Carter, a state employee working for the Department of Human Services (the Department), left work early on a personal matter. After attending to the matter, he drove a vehicle, despite the fact that he did not have a valid driver's license. He was in a serious automobile accident in which two people were injured.

Carter was charged with assault by auto and related offenses. Assault by auto may be a second, third, fourth or disorderly persons offense depending on the circumstances.

N.J.S.A. 2C:12-1c(1), (2) and (3). Carter was charged with violating N.J.S.A. 2C:12-1c(1) which provides that if a vehicle is driven recklessly causing serious bodily injury to another, the crime is a fourth degree offense and if only bodily injury results, then the conduct is a disorderly persons offense.

Carter received a Preliminary Notice of Disciplinary Action from the Department dated July 1, 2005, immediately suspending him from his employment with pay. At the conclusion of the informal pre-termination hearing held on July 11, 2005, the Department suspended Carter without pay, effective that day, in accordance with N.J.S.A. 11A:2-13 and N.J.A.C. 4A:2-2.5, pending the outcome of the criminal complaint. The Department's Final Notice of Disciplinary Action dated July 22, 2005, issued after the hearing, states that: "It is determined that the public interest would best be served by the employee's indefinite suspension until the disposition of the criminal complaints in accordance with N.J.A.C. 4A:2-2.5." The regulation in question, N.J.A.C. 4A:2-2.5 (a)(2), in pertinent part, permits the suspension of an employee "immediately when the employee is formally charged with a crime of the first, second or third degree, or a crime of the fourth degree on the job or directly related to the job."

Any appeal to the Civil Service Commission must be taken within "[twenty] days from receipt of the final written determination of the appointing authority." N.J.S.A. 11A:2-15; see also N.J.A.C. 4A:2-1.1 (b) (stating that "an appeal must be filed within [twenty] days after either the appellant has notice or should reasonably have known of the decision, situation or action being appealed"). Carter acknowledges in his brief that he received the Final Notice of Disciplinary Action on July 22, 2005.*fn1 Carter did not take an appeal within the twenty day time frame.

Rather, almost a year later, on July 9, 2006, Carter wrote the Department advising that he had recently learned that his charges constituted either fourth degree or disorderly persons offenses, not third degree offenses, and hence he should not have been suspended indefinitely under the regulations. By letter dated August 29, 2006, the Department declined to relieve him of the suspension because he had not taken a timely appeal of his suspension.

On October 19, 2006, Carter petitioned the Department of Personnel for reinstatement and back pay and benefits.*fn2 The Department of Personnel denied his request for a hearing on the basis that his appeal was untimely. In its Final Administrative Action issued December 12, 2008, the Civil Service Commission, which by then had replaced the Department of Personnel,*fn3 denied Carter's application for reconsideration on the same basis.

Carter appeals that decision to this court contending that the suspension was void ab initio. Specifically, he points out that the statutes and regulations do not authorize an indefinite suspension in excess of six months for fourth degree offenses. See N.J.S.A. 11A:2-13; N.J.A.C. 4A:2-2.4(a); N.J.A.C. 4A:2-2.5(a)(2); and N.J.A.C. 4A:2-2.7(a)(2). He also contends that his time to appeal should have been equitably tolled and that the period of the indefinite suspension unnecessarily exceeded the disposition of his criminal charge, arguing that it should have ended when he completed all of the requirements for the pretrial intervention program except probation.

Our review of an agency decision is limited. In re Musick, 143 N.J. 206, 216 (1996). We must presume that the administrative agency has acted reasonably. In re Vey, 272 N.J. Super. 199, ...


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