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In the Matter of


August 29, 2011


On appeal from the New Jersey Civil Service Commission, Docket No. 2010-2234.

Per curiam.


Submitted August 24, 2011

Before Judges Lihotz and Baxter.

Petitioner Sergeant Reginald Dalton, a Lakewood Township police officer, appeals from a final decision of the Civil Service Commission (Commission) upholding a disciplinary determination made by respondent, the Lakewood Township Police Department. On January 21, 2010, the Commission denied Sergeant Dalton's request for a hearing concerning his disciplinary appeal of an imposed ten-day suspension for abuse of sick time because his letter of appeal was untimely. We affirm.

The record reflects a department-wide audit of sick time requests resulted in a complaint, submitted to the Office of Professional Standards, stating Sergeant Dalton was suspected of sick leave abuse in calendar year 2008. Thereafter, a Preliminary Notice of Disciplinary Action was issued on May 6, 2009, which included three charges under N.J.A.C. 4A:2-2.3: (1) inability to perform duties; (2) chronic or excessive absenteeism or lateness; and (3) conduct unbecoming a public employee. Sergeant Dalton was informed he had used sixteen sick days in 2008, fourteen of which were used in conjunction with other time off. Following a November 2, 2009 disciplinary hearing, a unanimous three-member panel found Sergeant Dalton "engaged in a pattern of unexcused sick leave abuse" and recommended a "penalty of 10 days should be taken from [Sergeant] Dalton's holiday and vacation time balance."

On December 18, 2009, Sergeant Dalton was personally served with a Final Notice of Disciplinary Action (FNDA) that advised the ten-day suspension would be effective immediately and instructed, "Your letter of appeal must be filed with the Merit System Board within 20 days of receipt of this form." Sergeant Dalton's counsel sent an appeal request to the Commission by overnight mail on January 8, 2010, twenty-one days following service of the FNDA. The Commission denied the request for a hearing, writing "since the appeal in this matter was not perfected within 20 days of receipt of the Final Notice of Disciplinary Action, the request for a hearing was denied."

On appeal, Sergeant Dalton argues the Commission wrongfully denied his appeal and request for a disciplinary hearing maintaining he handled the matter in a diligent fashion and "the neglect and/or ministerial error in mailing [the] Notice of Appeal was through no fault of [his own]" but a product of attorney neglect. Further, he suggests denying a hearing deprives him of his fundamental right to due process.

Our review of administrative agency decisions is limited. Karins v. City of Atl. City, 152 N.J. 532, 540 (1998). "[T]he [c]court should not disturb the agency's ruling unless it finds that the [agency's] action was arbitrary, capricious or unreasonable." Ibid. We are not "bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).

On appeal, Sergeant Dalton contends that the twenty-day requirement to file his administrative appeal should be relaxed.

The applicable statute governing disciplinary appeals states, in pertinent part:

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.]

It is well-settled that "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) (stating that "an appeal must be filed within 20 days after either the appellant has notice or should reasonably have known of the decision . . . being appealed")). "[T]he fundamental policy of the law demands definite limitations" as "the time must come when the appointing authority can rely upon the conclusion of the issue and proceed to make arrangements in the interest of the public . . . without fear that its action will be undone." Salimone, supra, 21 N.J. at 46.

"Firmly embedded in our law is the principle that enlargement of statutory time for appeal to a state administrative agency lies solely within the power of the Legislature . . . and not with the agency or the courts." Schaible Oil Co. v. N.J. Dep't of Envtl. Prot., 246 N.J. Super. 29, 31 (App. Div.) (alteration in original) (citation and internal quotations marks omitted), certif. denied, 126 N.J. 387 (1991). See also Mesghali, supra, 334 N.J. Super. at 621 ("When a statutory time limitation for filing an administrative appeal is mandatory and jurisdictional, it may be extended only by the [L]egislature, not by an agency or the courts.").

In the present case, the Commission correctly determined

Sergeant Dalton received notice instructing him of the time limitation on appeals and his appeal was not perfected within the twenty-day jurisdictional time limit, which could not be extended. See Mesghali, supra, 334 N.J. Super. at 621; Schaible Oil, supra, 246 N.J. Super. at 31. The dismissal was not a denial of due process. See Reilly v. City of Atl. City, 532 F.3d 216, 235 (3d Cir. 2008), cert. denied sub. nom., Flipping v. Reilly, __ U.S. __, 129 S. Ct. 1316, 173 L. Ed 2d 585 (2009).



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