August 20, 2013
CAMDEN ORGANIZATION OF POLICE SUPERIORS, SUSO DAVILA, JAVON KYSER, KEVIN SMITH, DAVID WEITZEL, WILLIAM FRETT, FRATERNAL ORDER OF POLICE LODGE #1, RONALD COLEMAN, JOSEPH RIVERA, Plaintiffs-Appellants,
THE CITY OF CAMDEN, CHRISTINE JONES-TUCKER, NEW JERSEY CIVIL SERVICE COMMISSION, Defendants-Respondents, and MAYOR DANA REDD, POLICE CHIEF JOHN SCOTT THOMSON, ROBERT M. CZECH, NEW JERSEY MERIT SYSTEM BOARD, Defendants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 16, 2013.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0280-11 and the New Jersey Civil Service Commission, CSC Nos. 2011-3146, 2011-3148, 2011-3174, 2011-3198, 2011-3199, 2011-3200 and 2011-3203.
Oandasan & Cooper, P.C., attorneys for appellants (Cheryl L. Cooper, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa Dorio Ruch, Deputy Attorney General, on the brief).
Marc A. Riondino, City Attorney, attorney for respondent City of Camden (Jason J. Asuncion, Assistant City Attorney, on the brief).
Before Judges Ashrafi and St. John.
Camden Organization of Police Superiors (COPS), Fraternal Order of Police Lodge #1 (FOP), Suso Davila, Javon Kyser, Kevin Smith, Ronald Coleman, David Weitzel, William Frett and Joseph Rivera appeal from a January 26, 2011 order of the Law Division and from two final agency determinations of the New Jersey Civil Service Commission (CSC) dated December 22, 2011. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.
The record discloses the following facts and procedural history leading to the determinations under review.
On November 8, 2010, the City of Camden (the City) submitted a layoff plan to the CSC's Division of State and Local Operations (SLO) to lay off employees in various departments, including the police department, effective January 18, 2011. On November 30, 2010, the CSC approved the plan. The CSC advised the City to notify affected employees no later than December 3, 2010. On December 2, 2010, the City posted general notice of the layoff in areas of the police department. In addition, on December 3, 2010, the City personally served or sent certified and ordinary mail to employees who would be affected by the layoff (targeted employees).
Pursuant to N.J.A.C. 4A:8-1.6, an employee who is going to be laid off or demoted pursuant to a layoff plan (i.e., a targeted employee) is entitled to be served with written notice personally, unless the employee is unavailable, in which case the employee may be served by certified mail. In addition, the employer must post general notice conspicuously in all affected facilities of the layoff unit. N.J.A.C. 4A:8-1.6. A permanent employee slated for demotion or layoff, may exercise "displacement rights" against other employees in the layoff unit who hold a position with the same or lower title. N.J.A.C. 4A:8-2.1
As a result of the layoff plan, three permanent Camden police lieutenants were laid off from their positions, and they were given rights to displace Suso Davila, Javon Kyzer and Kevin Smith who until that point had held the positions of police sergeant. Davila, Kyzer and Smith, in turn, were demoted and given the right to displace three individuals who had held the position of police officer. In addition, a police sergeant displaced police officer Joseph D. Rivera, and he was ultimately laid off. Even though Davila, Kyzer, Smith, and Rivera had been affected by the displacement rights of other employees, because they were not targeted, i.e., named in the layoff plan, they were not personally served or sent certified mail forty-five days in advance. Instead, they received notice on or about January 11, 2011. City police officers Ronald Coleman, William Frett, and David Weitzel also were demoted or laid off because of the displacement rights of other police officers. However, the City had sent Coleman, Frett and Weitzel timely notice by ordinary and certified mail, but the certified mail was returned unclaimed.
On January 14, 2011, COPS, FOP, Davila, Kyzer, Smith, Coleman and Rivera (collectively appellants) filed a verified complaint with the Law Division, challenging the layoffs on the grounds that the City had failed to follow proper procedures, including providing the required notice of the layoff.
Appellants simultaneously filed an application for an order to show cause with temporary restraints to enjoin the layoffs.
In a January 26, 2011 order the Law Division judge denied appellants' order to show cause and dismissed their verified complaint. If plaintiffs were unhappy with a final agency decision, namely the CSC's determination to approve the layoff plan, the judge instructed them to file an appeal. If they were protesting the lack of notice, the judge found that they were required to exhaust their administrative remedies with the CSC. On March 9, 2011, appellants appealed the January 26, 2011, decision.
Davila, Kyzer, Rivera, and Smith (the four individuals) administratively appealed to the CSC arguing that the City had failed to serve them with the appropriate notice prior to either laying them off or demoting them. The City conceded that the four individuals had not received personal notice forty-five days in advance.
On December 22, 2011, in a final administrative determination, the CSC ordered the four individuals to receive amounts equal to thirty-nine to forty-one days of back pay as compensation for not having received timely notice of their demotion or layoff. However, the CSC determined that the procedural violations were insufficient to establish a basis to reverse the layoffs, or to reinstate the four individuals to their pre-layoff rank with respect to benefits and seniority.
Coleman, Frett, and Weitzel (the three individuals) appealed the CSC determination of their layoff rights asserting the City had failed to serve them with appropriate notice. The City established that in fact, on December 3, 2010, it had sent notice to the last known mailing address of the three individuals by ordinary and certified mail. The certified mail had been returned unclaimed, but the ordinary mail was not returned. In a second separate final administrative determination dated December 22, 2011, the CSC found that notice had been properly mailed and the three individuals were not entitled to compensation.
On June 1, 2012, appellants moved to amend their notice of appeal to include the December 22, 2011, final agency decisions of the CSC. The motion was unopposed and on August 16, 2012, we granted appellants' motion to amend their notice of appeal, but we did not address the merits.
We first address the CSC's contention that we should not consider whether the CSC had the requisite quorum to approve the layoff plan because appellants have failed to exhaust their administrative remedies with respect to this issue.
The general rule regarding a party's obligation to exhaust the administrative remedies of a state agency is codified in Rule 2:2-3(a)(2):
[A]ppeals may be taken to the Appellate Division as of right . . . (2) to review final decisions or actions of any state administrative agency or officer . . . except that review pursuant to this subparagraph shall not be maintainable so long as there is available a right of review before any administrative agency or officer, unless the interest of justice requires otherwise.
The following three goals are served by the exhaustion requirement:
(1) the rule ensures that claims will be heard, as a preliminary matter, by a body possessing expertise in the area; (2) administrative exhaustion allows the parties to create a factual record necessary for meaningful appellate review; and (3) the agency decision may satisfy the parties and thus obviate resort to the courts.
[Atlantic City v. Laezza, 80 N.J. 255, 265 (1979).]
The first goal is "particularly important where the ultimate decision rests upon the factual determinations lying within the expertise of the agency or where agency interpretation of the relevant statutes or regulations is desirable." Magliochetti v. State, 276 N.J.Super. 361, 374 (Law Div. 1994). The second goal is significant, as we are not a court of record and must depend on a record developed below. The third goal
requires the parties to pursue available procedures to their appropriate conclusion and correlatively await their final outcome before seeking judicial intervention. This is so because interruption of the administrative process is not justifiable to any greater extent than interference with the trial process by interlocutory appeals. The expertise of an administrative agency may not be exercised or known until it renders its final decision and usually due deference is accorded such expertise upon judicial review.
[ Id . at 374-75 (citations omitted).]
The preference for exhaustion of administrative remedies is one of convenience, and "not an indispensable pre-condition." Swede v. Clifton, 22 N.J. 303, 315 (1956); accord Abbott v. Burke, 100 N.J. 269, 297 (1985). Generally, the exhaustion rule will not be applied in the following circumstances: (1) when only a question of law exists; (2) when administrative remedies would be futile; (3) when irreparable harm would result; (4) when jurisdiction of the agency is doubtful; or (5) when an overriding public interest calls for a prompt judicial decision. Magliochetti, supra, 276 N.J.Super. at 375. However, even in cases involving only legal questions, jurisdiction should remain with the agency where the agency is in a special position to interpret its enabling legislation, can conclusively resolve the issue or issues, and can provide relief for the plaintiff. Abbott, supra, 100 N.J. at 298.
Here, on January 26, 2011, when the Law Division judge dismissed the verified complaint, he had instructed appellants that they could either file an appeal of the CSC's final agency decision approving the layoff plan, or they could administratively appeal the lack of notice. Appellants filed an appeal of the January 26, 2011 determination, and they also filed administrative appeals pertaining to the lack of notice. However, appellants never filed an appeal challenging the final agency decision of November 30, 2010, wherein the CSC approved the layoff plan. Moreover, appellants have never administratively appealed the issue of whether the CSC had the required quorum to approve a layoff plan.
An issue not properly raised below may not be raised on appeal unless it concerns jurisdiction of the trial court or a matter of "great public interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). If appellants believed that the CSC lacked the requisite quorum to approve the layoff plan, they could have filed an administrative appeal or appealed the final agency decision approving the layoff plan, but they did neither. Therefore, we decline to address the issue of whether the CSC had the requisite quorum to approve a layoff plan in November 2010.
Appellants allege that the final agency decisions of December 22, 2011, were arbitrary and capricious. As a preliminary matter, we note that a final agency determination must be appealed within forty-five days of the date of the decision. R. 2:4-1(b). On June 1, 2012, we granted appellants' motion to amend their appeal. However, any appeal of the final agency decisions issued on December 22, 2011, should have been filed by early February 2012. In fact, appellants did not move to amend the pleadings until almost four months later. As such, we find that appellants' appeal of the final agency determinations of December 22, 2011, was not timely. Nevertheless, we provide a brief discussion of the merits.
Established precedents guide our task on appeal. Appellate review of an administrative agency decision is limited. See In re Herrmann, 192 N.J. 19, 27 (2007). A strong presumption of reasonableness attaches to the Commission's decision. In re Carroll, 339 N.J.Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). The burden is on the appellant to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J.Super. 544, 563 (App. Div. 2002); see also Bowden v. Bayside State Prison, 268 N.J.Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).
"Appellate courts ordinarily accord deference to final agency actions, reversing those actions if they are 'arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.'" N.J. Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)) (alteration in original). Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inquiries: (l) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion.
In re Stallworth , 208 N.J. 182, 194 (2011). When an agency decision satisfies such criteria, we accord substantial deference to the agency's fact-finding and legal conclusions, while acknowledging the agency's "'expertise and superior knowledge of a particular field.'" Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). We will not substitute our own judgment for the agency's even though we might have reached a different conclusion. Stallworth, supra, 208 N.J. at 194; see also
In re Taylor , 158 N.J. 644, 656 (1999) (discussing the narrow appellate standard of review for administrative matters.
With those principles in mind, we turn to appellants' contentions on appeal.
With respect to the four individuals, appellants agree with the CSC's determination to reinstate their back pay because they were not given proper notice of the demotion or layoff.
However, appellants disagree with the CSC's determination not to reinstate benefits such as time in service and rank which affects their standing for retirement, potential seniority, and pension. Appellants cite Springfield v. Pedersen, 73 N.J. 1, 7 (1977), for the notion that a municipal employee who has been denied compensation because of a suspension that was illegal is entitled to receive all the remuneration that he or she would have received including reinstatement of seniority.
Here, however, the suspension was not illegal. In fact, the CSC determined that the layoffs were proper, the only problem being that the City had failed to provide forty-five days of notice. One purpose of the notice requirement in N.J.A.C. 4A:8-1.6(a) is for the employee to use the time to secure a new position, and the forty-five days can essentially be considered as severance pay. Amodio v. Civil Service Comm'n, 81 N.J.Super. 22, 29 (App. Div. 1968). The CSC found that reinstating rank and seniority was not required under the circumstances, and this finding is entitled to deference, given the CSC's expertise in the area of civil service. We find no basis to appellants' contention that the CSC determination was arbitrary or capricious.
The three individuals claim that the final agency decision of December 22, 2011, was arbitrary and capricious because they did not receive notice of the layoff and they therefore believe they should have been treated similarly to the four individuals. However, the CSC found that the City had sent notice via ordinary and certified mail and the ordinary mail was not returned. We defer to the CSC finding that this notice was adequate, and the three individuals were not entitled to compensation.
Even though appellants were late in appealing the final agency determinations of December 22, 2011, we nevertheless conclude that the CSC's decisions were reasonable and were supported by the record. We see no reason to disturb the agency's findings.