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In re Carter


March 25, 2010


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

Per curiam.


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, 205 (App. Div. 1993, aff'd, 135 N.J. 306 (1994).

The agency's decision will be sustained unless an appellant makes "a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007). In this inquiry, we consider whether the agency followed the law in light of the express or implied legislative policies involved, whether the agency's findings are supported by substantial evidence, and "whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Id. at 28 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).

After a careful review of the record and arguments of counsel, we find no merit in the arguments raised by Carter. R. 2:11-3(e)(1)(E). He has presented no viable legal theory that would support a determination that the Department's decision was void ab initio. Two of the cases he relies on, Rosetty v. Twp. Comm. of Hamilton, 82 N.J. Super. 340, 346 (Law. Div. 1964), aff'd o.b., 96 N.J. Super. 66 (App. Div. 1967), and Strohmeyer v. Borough of Little Ferry, 6 N.J. Super. 282, 284 (App. Div. 1950), concern application of a statute dealing with illegal suspensions of municipal officers and employees, and are not readily applicable here. In Raniere v. I & M Invest. Inc., 159 N.J. Super. 329, 336-37 (Ch. 1978), aff'd, 172 N.J. Super. 206 (App. Div.), certif. denied, 84 N.J. 473 (1980), an execution sale conducted by a sheriff was a ministerial act and void when he failed to exhaust the debtor's personality before execution of realty as required by statute. The decision relied on express law governing executions. Id. at 335-36.

Carter also relies on V.F. Zahodiakin Eng'g Corp. v. Zoning Bd. of Adjustment of Summit, 8 N.J. 386 (1952). There the Court found a municipal resolution purporting to authorize an exception from the zoning ordinance in connection with the sale of a tract of land void and subject to collateral attack at any time because the act fell outside the subject matter jurisdiction of the municipality. Id. at 390, 395. The Court stated that "[w]here, as here, there is no pretense of adherence to the statutory principle, but a design to provide a measure of relief outside of the statute itself and in direct conflict with its terms, the action of the quasi-judicial agency constitutes an excess of jurisdiction." Id. at 394. The Court found that "the action taken was not a mere irregular exercise of the quasi-judicial function residing in the local authority. The proceeding was wholly beyond the statute. It was not designed to advance the statutory policy, but to effectuate a contractual undertaking for private benefit in disregard of it." Id. at 395. These circumstances are not present in the case before us. Here, the Department did not undertake an act outside its statutory authority, but assumed that the facts satisfied the statutory provision warranting suspension beyond six months.

In Summer Cottagers' Ass'n of Cape May v. City of Cape May, 19 N.J. 493, 504 (1955), dealing with the conduct of a municipality, the Court distinguished between a governmental act that is "utterly beyond the jurisdiction of a municipal corporation" and an act constituting "the irregular exercise of a basic power under the legislative grant in matters not in themselves jurisdictional." If the governmental entity acts without jurisdiction its actions are "ultra vires in the primary sense and void." Ibid. If the act is merely an irregular exercise of its power, then the act is "ultra vires only in a secondary sense which does not preclude ratification or the application of the doctrine of estoppel in the interest of equity and essential justice." Ibid. Here, the Department was acting within its jurisdiction in suspending Carter. It merely appears that a mistake was made on the degree of his criminal charge. However, the equities do not lie with Carter. He must accept responsibility for not ascertaining the degree of the criminal charges against him and for not calling any mistake to the attention of the Department within the time to appeal.

In addition, Carter is not merely seeking a correction of his suspension but he is also seeking to circumvent the time limitations on taking an appeal to the Civil Service Commission. As we stated in Mesghali v. Bayside State Prison, 334 N.J. Super. 617, 621 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001), the statutory time limitation for appeals to the Civil Service Commission is "mandatory and jurisdictional" and may not be extended by the agency or the courts.


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