On appeal from the Civil Service Commission, Docket No. 2010-2233.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Messano and Waugh.
Joseph Przewoznik, a Township of Lakewood police officer, appeals from a final decision of the New Jersey Civil Service Commission (the Commission). On January 21, 2010, the Commission denied Przewoznik's request for a hearing on his disciplinary appeal of a ten-day suspension because the appeal was untimely. We affirm.
The record reflects that Przewoznik was served with a Preliminary Notice of Disciplinary Action, charging him with "[c]hronic or excessive absenteeism or lateness" and related charges on May 6, 2009. Following a disciplinary hearing on November 2, 2009, a three-member panel found that Przewoznik engaged "in a pattern of excessive unexcused sick leave usage." Przewoznik was personally served with a Final Notice of Disciplinary Action (FNDA) on December 16, 2009. The FNDA informed Przewoznik that he was to be suspended for ten days. Additionally, it provided him with information regarding his right to appeal and instructed him as follows: "Your letter of appeal must be filed with the Merit System Board within 20 days of receipt of this form." The FNDA also stated the address of the Merit System Board.
Przewoznik's attorney filed an appeal from the ten-day suspension. However, in a January 21, 2010 decision, the Commission denied Przewoznik's request for a hearing because the appeal, which was postmarked January 8, 2010, "was not perfected within 20 days" of the receipt of the FNDA.
On appeal to this court, Przewoznik contends the time period for filing an appeal should be relaxed because "counsel was away from the office on maternity leave," and the appeal "was no more than three days late." Based on our review of the record and the applicable law, we find that Przewoznik's arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.
The statute applicable to disciplinary appeals provides in pertinent part as follows:
Any appeal from adverse actions . . . 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 reasonable time. [N.J.S.A. 11A:2-15.]
"The dictates of this statute have been interpreted as jurisdictional and 'mandatory in its requirement.'" Mesghali v. Bayside State Prison, 334 N.J. Super. 617, 621 (App. Div. 2000) (quoting Borough of Park Ridge v. Salimone, 21 N.J. 28, 46 (1956)), certif. denied, 167 N.J. 630 (2001); see also N.J.A.C. 4A:2-1.1(b) (stating that "an appeal must be filed within 20 days after either the appellant has notice or should reasonably have known of the decision, situation or action being appealed").
"When a statutory time limitation for filing an administrative appeal is mandatory and jurisdictional, it may be extended only by the legislature, not by an agency or the courts." Mesghali, supra, 334 N.J. Super. at 621. Accordingly, the Commission correctly determined that Przewoznik's appeal was untimely and that the statutory period for filing the appeal could not be extended.