August 26, 2011
IN THE MATTER OF ANDRE WILSON, CITY OF EAST ORANGE.
On appeal from the Civil Service Commission, DOP Docket No. 2008-1332.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 9, 2011
Before Judges Waugh and Koblitz.
Andre Wilson appeals from a September 24, 2007 final administrative determination and a December 20, 2007 denial of reconsideration of the Department of Personnel Merit System Board (Board), now the Civil Service Commission (Commission), denying his request for a hearing on his appeal of his removal from the position of Police Officer of the City of East Orange.
The Board refused to consider the appeal because it was filed nine days late. After reviewing the record in light of the contentions advanced on appeal and considering our standard of review of an agency determination, we affirm.
East Orange suspended Officer Wilson without pay in September 2004, due to allegations of improper submission of overtime requests and illegal acts being investigated by the Essex County Prosecutor's Office. Wilson was indicted in April 2005, and subsequently acquitted of all charges on November 1, 2006. He was then placed on leave with pay. On December 12, 2006, Wilson was served with a preliminary notice of disciplinary action alleging more than 300 counts of various infractions, primarily involving fraudulent overtime payments. Wilson requested a departmental hearing, which was conducted on March 14, 2007 and April 4, 2007. After determining that Wilson had committed "calculating and egregious" violations, the hearing officer concluded on August 8, 2007, that Wilson should be dismissed from the East Orange Police Department. Wilson was then served with a final notice of disciplinary action (FNDA).
Wilson filed an appeal form with the Board. It was postmarked September 19, 2007, which was nine days after the last day for filing an appeal pursuant to N.J.S.A. 11A:2-15.*fn1 On September 24, 2007, the Board issued a final administrative determination denying the request for a hearing on appeal as it was not filed within twenty days of his receipt of the FNDA. Wilson filed a motion for reconsideration, swearing in an affidavit that, "On August 21, 2007, I was served with an illegible copy of a Final Notice of Disciplinary Action by a member of the East Orange Police Department . . . which appeared to be a faxed copy." That "illegible copy" was not supplied to us on appeal.
Wilson's counsel's secretary submitted a copy of an affidavit indicating that she spoke to counsel for East Orange on September 6, 10 and 11, seeking a copy of the FNDA, which was not received until September 11, 2007, by facsimile. Counsel for East Orange confirmed this information in a certification in response, noting that the copy of the FNDA faxed to Wilson's counsel was a carbon copy of the original personally served on Wilson. Sergeant Ronald Watson of the East Orange Police Department certified that on August 20, 2007, he served an original FNDA on Wilson personally at his home and that Wilson refused to sign a receipt. Watson certified that a copy of the FNDA was also sent to Wilson at Wilson's home address by certified mail, which was signed by Wilson. Whether the certified mail was sent August 25, 2007, or received August 25, 2007, is unclear from Watson's certification. The certification reads, "I also sent a copy of the Final Notice by certified mail, on August 25, 2007, Officer Wilson signed the certified mail receipt of the copy of the Final Notice that I sent to him."*fn2
Wilson filed a verified complaint in lieu of prerogative writs, pursuant to Rule 4:69-1, in the Law Division on January 29, 2008, in which he did not discuss the date he was served with the FNDA. This complaint was subsequently dismissed.*fn3
Wilson raises the following issues on appeal:
POINT I: THE EMPLOYEE'S APPEAL WAS TIMELY FILED IN ACCORDANCE WITH N.J.S.A. 11A:2-15.
POINT II: THE EMPLOYEE'S APPEAL WAS TIMELY FILED BECAUSE THE CITY FAILED TO SERVE THE FINAL NOTICE OF DISCIPLINARY ACTION UPON THE EMPLOYEE'S REPRESENTATIVE WITHIN THE TWENTY DAY APPEAL PERIOD, AFTER THE REPRESENTATIVE'S NUMEROUS REQUESTS FOR THE NOTICE.
Wilson argues that his September 19, 2007 appeal to the Board was timely because East Orange did not demonstrate proper service on him of the FNDA until his attorney was sent a copy by facsimile on September 11, 2007. The Board decided that Wilson failed to demonstrate that he received an illegible copy of the FNDA and that the date when his counsel received the FNDA did not affect the appeal due date.
We have held that a "strong presumption of reasonableness must be accorded [to an] agency's exercise of its statutorily delegated duties." In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 380 (App. Div. 1997). "An administrative agency's final quasi-judicial decision will be sustained unless there is 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) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).
As the Supreme Court noted in Herrmann, the "[t]hree channels of inquiry [that] inform the appellate review function" are:
(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.
[Id. at 28 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
"When an agency's decision meets [these] criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid.
The FNDA itself reads in small print, "A copy of this notice must sent to the Department of Personnel and served on the employee by personal service or registered mail." Wilson objects to East Orange's proof of service because Watson submitted a certification of service rather than an affidavit. However, a certification may be submitted in lieu of an affidavit. R. 1:4-4(b).
Wilson also argues that the description of the appeal procedure on the FNDA would be particularly hard to read given that it is in small print. However, the print in which the instructions are written is not significantly smaller than the print used throughout the rest of the form and is preceded by "APPEAL PROCEDURE TO THE EMPLOYEE," written in bolded capital letters. In much smaller print on the very bottom of the form is typed, "DISTRIBUTION: White (Original for Employee), Blue (Employee copy), Green (Employee representative), Canary (Management), Pink (Management), Goldenrod (Department of Personnel)." These instructions support Watson's sworn statement that he personally served the original FNDA on Wilson. Additionally, the appeal procedure is pre-printed, rather than hand-written, on the form and thus, even if it were copied by facsimile transmission, would be unlikely to be rendered illegible. As the Board noted, Wilson failed to submit the notice he admittedly received personally with his motion papers. Under these circumstances, the Board's conclusion that Wilson was personally served with the FNDA, including legible appeal instructions on August 20 or 21, 2007, is reasonable.
Appeals from major disciplinary matters must be made in writing "no later than 20 days from receipt of the final written determination of the appointing authority." N.J.S.A. 11A:2-15. The Court has construed the language of this statute as jurisdictional and "mandatory in its requirement." Borough of Park Ridge v. Salimone, 21 N.J. 28, 46 (1956) (citing Weaver v. N.J. Dep't of Civil Serv., 6 N.J. 553, 558 (1951)). When the FNDA is served on the employee's representative is not relevant to this determination. N.J.A.C. 4A:2-2.8(a) provides: "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."
We find that the Board properly exercised its discretion by dismissing Wilson's appeal as untimely.