On appeal from a Final Administrative Decision of the New Jersey Civil Service Commission, Docket No. 2008-4939.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Lihotz.
Petitioner Anthony DeProspo appeals from a Civil Service Commission (Commission) determination upholding his termination from employment by respondent, City of Paterson. DeProspo argues the Commission's dismissal of his appeal as untimely is improper because he filed his appeal within a reasonable time after receiving notice of the charges against him. We disagree and affirm.
The Paterson Police Department (the Department) hired DeProspo as a police officer in 2001. At an in-person meeting on December 10, 2007, the Department's Internal Affairs Division suspended him without pay, pending the outcome of an investigation into charges of insubordination and other violations of departmental regulations. DeProspo surrendered his "duty" and "off duty" weapons, badge, and identification card. DeProspo maintains he was not served with any written charges at this meeting or otherwise given an opportunity to respond to the allegations.
The Department issued a Preliminary Notice of Disciplinary Action (PNDA 1) on December 14, 2007, setting a January 11, 2008 hearing date if DeProspo sought to challenge the suspension. The PNDA 1 charged insubordination, fitness for duty, and violations of departmental rules. The PNDA 1 stated the notice was served personally and sent by certified mail to DeProspo's Clifton address.
On December 26, 2007, the Department sent a second PNDA (PNDA 2) informing DeProspo of different charges against him; namely, he had been adjudicated delinquent of offenses that precluded him from carrying a firearm. A hearing date of January 24, 2009 was set if he sought to contest the charges. The PNDA 2 stated the notice was personally served and sent by certified mail to the same Clifton address. The PNDA 2 was returned unclaimed. DeProspo contends he did not receive either PNDA.
When first suspended, DeProspo explored the possibility of retirement as a way to avoid the disciplinary charges. With the advice of counsel, DeProspo requested an application to claim his pension; working with a pension specialist, he filed an application for retirement. DeProspo believed "the City would forego pursuing whatever disciplinary charges . . . against [him] if [he] filed for retirement." On January 2, 2008, the Department sent a facsimile to DeProspo's counsel notifying him of its efforts to serve DeProspo with the charges. DeProspo disputes that the PNDA 2 was included with this facsimile. Moreover, he asserts the Department "had not established that [counsel] was [DeProspo's] attorney at the time of the fax, or that he had received the fax."
DeProspo did not appear on January 24, 2008. Consequently, the Department terminated his employment. On that same day, DeProspo contacted his union Vice President, David Baird, to "inquire as to [his] employment status" because he knew "that by contract the City c[ould] only suspend [him] without pay at most for thirty days which would have been up the following day -- January 25, 2008." Baird advised DeProspo of his termination.
The following day, the Department sent a Final Notice of Disciplinary Action (FNDA) reiterating that DeProspo did not request a hearing and his termination was effective January 24, 2008. The FNDA also states that on January 30, 2008, the notice was personally served to a union representative and sent via certified mail to DeProspo's Clifton address. This notice was also returned unclaimed. DeProspo similarly contends that he did not receive the FNDA.
By February 2008, DeProspo learned he was not eligible to receive a pension because of his termination and resultant break in service. He then contacted the Commission*fn1 to appeal the Department's disciplinary action. DeProspo maintains someone in the Commission told him he could not file an appeal until he was in receipt of a FNDA, and the Commission had no record of his termination, even though "another branch of the State - the Pension System, was precluding [him] from receiving a pension because [he] had been in fact terminated."
DeProspo acknowledged "some time during the next week," he obtained the PNDA 2 from the Department, but asserts he did not obtain a copy of the FNDA until he received it from Baird on May 21, 2008. DeProspo explains the disciplinary notices were "mailed by the department to an address where [he] was not residing." In fact, he was living in West Paterson and not at his listed address in Clifton.
DeProspo filed his appeal with the Commission on June 13, 2008, requesting the Commission either dismiss the charges against him due to the Department's "egregious procedural violations" or, alternatively, grant a hearing on the charges. Without reaching the merits, the Commission denied the appeal as untimely, determining DeProspo "knew of his situation in December 2007" and, regardless of whether the ...