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In the Matter of David Mcclendon

March 14, 2011

IN THE MATTER OF DAVID MCCLENDON


On appeal from the New Jersey Civil Service Commission, Docket No. 2010-1370.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 26, 2011

Before Judges Fuentes, Ashrafi and Nugent.

Appellant David McClendon, a former Newark police officer, appeals from the decision of the Division of Merit System Practices and Labor Relations (MSPLR) of the New Jersey Civil Service Commission (CSC) that denied his request for a hearing concerning his removal from office, and from the final administrative decision of the CSC that denied his petition for reconsideration of the MSPLR decision. We affirm.

While on duty on July 5, 2007, McClendon fell and sustained injuries to his right ankle and left knee. On April 18, 2008, he filed an application for accidental disability retirement benefits with the New Jersey Division of Pensions and Benefits, declaring that he was "incapacitated for further service as a police officer." On August 24, 2008, the Newark Police Department's acting director served McClendon with a Preliminary Notice of Disciplinary Action (PNDA) charging him with physical incapacity and inability to perform his duties. The specification in the PNDA stated:

On June 12, 2008, Police Officer David McClendon responded to the medical offices of Dr. Gregory Gallick, Orthopaedic Surgery and Sports Medicine, where an extensive Medical Evaluation was conducted by Dr. Gregory Gallick. Dr. Gallick reported that Police Officer David McClendon is unable to perform the full duties of a police officer.

Police Officer David McClendon developed a chronic physical condition relating to injuries to his right ankle and left knee on July 5, 2007. Since then, he has been unable to perform the full duties of a police officer.

McClendon admitted the charges at the PNDA hearing on November 3, 2008, and subsequently was served with a Final Notice of Disciplinary Action (FNDA) on November 6, 2008, terminating him effective January 3, 2009. The FNDA included a provision notifying McClendon of the right to appeal and that the letter of appeal "must be filed with the Merit System within 20 days of receipt of this form." The FNDA also provided the address of the Merit System Board.

McClendon filed a letter of appeal and request for a hearing dated January 7, 2009, and postmarked January 9, 2009. The Director of the MSPLR denied McClendon's appeal in a final administrative determination issued January 26, 2009, based on McClendon not perfecting his appeal within twenty days of receiving the FNDA on November 6, 2008, and his letter of appeal having been postmarked on January 9, 2009. McClendon's attorney states that he did not receive the FNDA until January 6, 2009.

On April 14, 2009, the secretary of the Board of Trustees, Police and Fireman's Retirement System, informed McClendon in a letter that the Board had denied his application for accidental disability retirement benefits, having determined that (1) he was not permanently disabled from the performance of his regular and assigned duties, and (2) his alleged disability was not the direct result of the July 5, 2007 incident, but "the result of a pre-existing disease alone or a pre-existing disease that is aggravated or accelerated by the work effort." McClendon has appealed that decision. On April 24, 2009, McClendon wrote to the Newark Police Department and requested that he be reinstated. The department rejected the request.

On October 9, 2009, defendant wrote to the MSPLR and requested that it reconsider its decision and relax the twenty-day rule. On December 3, 2009, the CSC issued its final administrative action denying McClendon's request for reconsideration. The CSC stated in its decision:

N.J.A.C. 4A:2-1.6(b) sets forth the standards by which the Commission may reconsider a prior decision. This rule provides that a party must show that a clear material error has occurred or present new evidence or additional information not presented at the original proceeding which would change the outcome of the case and the reasons that such evidence was not presented at the original proceeding. Additionally, N.J.S.A. 11A:2-15 provides that appeals from major disciplinary matters be made in writing no later than 20 days from receipt of the final written determination of the appointing authority. Further, N.J.A.C. 4A:2-2.8(a) states that "An appeal from a Final Notice of Disciplinary Action must be filed within 20 days of receipt of the Notice by the employee. Receipt of the Notice on a different date by the employee's attorney or union representative shall not affect this appeal period."

In the instant matter, there is no dispute that the petitioner was served the FNDA via personal service on November 6, 2008. Thus, his appeal had to be postmarked by no later than November 26, 2008, to meet the 20-day filing requirement. The petitioner argues that he believed that the appeal period commenced on January 9, 2009, the date of his removal from employment. However, the FNDA plainly notes the employee's right to appeal the disciplinary action within 20 days of receipt of the FNDA. Moreover, as indicated in N.J.A.C. 4A:2-2.8(a), receipt of the FNDA on a different date by the employee's representative does not affect the appeal period. In this regard, the date that the petitioner's representative received a copy of the FNDA is irrelevant and does not change the fact that the petitioner had to file his appeal by November 26, 2008, and failed to do so. Moreover, as the provisions of N.J.A.C. 4A:2-2.8, and the underlying statute, N.J.S.A. 11A:2-15 are jurisdictional, they may not be relaxed. Finally, a review of official records reveals that the attached final administrative action dated January 23, 2009, denying the petitioner's request for a hearing ...


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