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In re Deprospo

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 18, 2010

IN THE MATTER OF ANTHONY DEPROSPO, PATERSON

On appeal from a Final Administrative Decision of the New Jersey Civil Service Commission, Docket No. 2008-4939.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 20, 2010

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 Department provided a FNDA, "it [was] [his] responsibility to file the necessary appeal with or without the FNDA."

DeProspo requests this court vacate that determination and grant him a hearing on the merits. He suggests, prior to his actual receipt of the FNDA on May 21, 2008, he was not provided "definitive" or "unambiguous" notice, of termination upon which he could rely to appeal. Consequently, he argues he "filed within a reasonable time after definitively learn[ing] that he had been fired from his position as a Paterson Police Officer."

The Civil Service Act (the Act), N.J.S.A. 11A:1-1 to 12-6, and the regulations promulgated by the Commission under that authority govern civil service employees' rights. One purpose of the Act is to "preclude removal of certain permanent employees 'except for cause after due notice and hearing.'" Mesghali v. Bayside State Prison, 334 N.J. Super. 617, 622 (App. Div. 2000) (quoting Jones v. Dep't of Civil Serv., 118 N.J. Super. 323, 326 (App. Div. 1972)), certif. denied, 167 N.J. 630 (2001). Accordingly, the Legislature provided appeals from adverse disciplinary action by civil service employees shall be made in writing to the Civil Service Commission no later than 20 days from receipt of the final written determination of the appointing authority.

If the appointing authority fails to provide a written determination, an appeal may be made directly to the Civil Service Commission within [a] reasonable time. [N.J.S.A. 11A:2-15.]

See also N.J.A.C. 4A:2-2.8(b) (stating "[i]f the appointing authority fails to provide the employee with an [FNDA], an appeal may be made directly to the Commission within a reasonable time"); Shannon v. Academy Lines, Inc., 346 N.J. Super. 191, 196 (App. Div. 2001) (explaining Legislature may provide for service by agencies "in any manner that meets fundamental procedural due process"). The essential components of due process are notice and an opportunity to be heard. First Resolution Inv. Corp. v. Seker, 171 N.J. 502, 513-14 (2002) (quoting Mettinger v. Globe Slicing Mach. Co., 153 N.J. 371, 389 (1998)) That requires notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950).

Our role in reviewing final decisions of State administrative agencies is limited. Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006). An appellate court will not reverse the decision of an administrative agency absent a clear showing that the decision "is arbitrary, capricious, unreasonable or . . . not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). "[I]f substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Therefore, we determine:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) 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. [Mazza v. Bd. Of Trs., 143 N.J. 22, 25 (1995) (citing Campbell, supra, 39 N.J. at 562).]

When an agency decision meets these criteria, the agency's expertise and superior knowledge in a particular field justify substantial deference. In re Herrmann, 192 N.J. 19, 28 (2007); Greenwood, supra, 127 N.J. at 513.

With these principles as a guide, the question is whether the Commission's factual determination that DeProspo had adequate notice of his termination on January 24, 2008, making the filing of his appeal in June untimely, is arbitrary, capricious, unreasonable, or unsupported by substantial evidence in the record as a whole. Henry, supra, 81 N.J. at 579-80. Following our review, under the circumstances presented here, we reject DeProspo's due process contention that he was entitled to actually receive a copy of the FNDA before implicating the twenty-day requirement to appeal. We determine Baird's January 24, 2008 disclosure of DeProspo's termination, coupled with all prior events, adequately afforded him "definitive notice" of the consequences of the disciplinary charges filed against him, triggering the necessity to perfect a timely appeal.

N.J.S.A. 11A:2-15 reflects that "[i]f the appointing authority fails to provide a written determination" of an adverse employment action, "an appeal may be made directly to the Civil Service Commission within reasonable time." Here, the Department mailed the notices to DeProspo's listed address; the certified mail was unclaimed - not undeliverable. Also, DeProspo's counsel and union representative were provided copies of the notices. These methods of service were reasonably calculated to apprise DeProspo of the pendency of the action, as well as his right to be heard.

Moreover, DeProspo knew of his suspension and, as stated by the Commission, "he was well aware of the fact that he was not working." He was actually advised by Baird that he was terminated on January 24, 2008, and, in February 2008, was told his retirement application had been rejected because he was suspended. Yet, DeProspo failed to make reasonable efforts of inquiry to clarify his employment status.

These combined facts unequivocally support the finding that DeProspo had sufficient notice of the Department's final disposition and his termination. We find nothing in the procedure followed that violates the basic requirements of due process. We conclude the Commission correctly dismissed DeProspo's appeal filed on June 18, 2008, nearly five months after he was fully apprised of his termination.

Affirmed.


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