October 21, 2013
IN THE MATTER OF ERNEST COURSEY, JR., ATLANTIC CITY.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 1, 2013
On appeal from the Civil Service Commission, CSC Docket Nos. 2010-2752 and 2011-3561.
George L. Farmer argued the cause for appellant Ernest Coursey, Jr.
Steven S. Glickman argued the cause for respondent City of Atlantic City (Ruderman & Glickman, P.C., attorneys; Mr. Glickman, of counsel; Vincent M. Avery, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).
Before Judges Messano, Sabatino, and Rothstadt.
Ernest Coursey, a former employee of respondent City of Atlantic City (the "City"), appeals a February 3, 2011 final agency decision of the Civil Service Commission ("Commission") denying most of his civil service claims against the City arising out of his discharge in January 2006. Coursey also appeals the Commission's subsequent January 12, 2012 decision rejecting his petition for reconsideration. Applying the customary deferential standard of review that governs appeals from administrative agency decisions, we affirm the Commission's rulings in all respects.
The facts and procedural history relevant to Coursey's civil service claims are largely contained within our companion opinion issued today addressing the appeal in Coursey's related Law Division case, Coursey v. City of Atl. City, No. A-4961-10 (App. Div. 2013). Briefly repeating portions of that background here, we note the following.
The City hired Coursey in the capacity of a clerk typist, a classified position, in 1986. His position as a clerk typist became permanent five years later in 1991.
In 1991, Coursey was named to the Atlantic City Council (the "City Council"). As a result, Coursey took a leave of absence from his clerk typist job to serve in that Council position. Coursey submitted annual leave of absence forms to maintain his clerk typist position through at least 1993.
Coursey served on the City Council until 2002, when the newly-elected mayor, Lorenzo Langford, appointed him as his confidential aide. His title was changed in July 2004 to confidential secretary.
In August 2005, Coursey was provisionally appointed to serve as a demolition coordinator in the City's neighborhood services department. In September 2005, Coursey changed positions again, assuming the role of an unclassified City liaison for neighborhood services.
Another new mayor, Robert Levy, was elected in November 2005. Meanwhile, in December 2005, Coursey resumed his previous position as a provisional demolition coordinator. The City's personnel director sent Coursey a letter that month informing him that he would be returned to his permanent job title as clerk typist starting on January 3, 2006. Mayor Levy was sworn into office on January 1, 2006, and the City's new business administrator was sworn into office that same day.
On January 3, 2006, the new business administrator directed Coursey to report to the personnel office to complete a typing test as a predicate to resuming his clerk typist position. Coursey declined to take the test because he admittedly could not type proficiently. At a meeting later that day, the City Solicitor discovered that Coursey had not apparently completed a leave of absence form since 1993. This failure indicated to the Solicitor that Coursey's permanent civil service status as a clerk typist had lapsed. The new business administrator consequently told Coursey that his employment with the City was terminated, effective January 5, 2006.
After unsuccessfully attempting to grieve his discharge with his labor union, Coursey filed a civil action in the Law Division in November 2007. His complaint alleged claims against the City, the union, and various individual City defendants. In his complaint, Coursey alleged that he had been the subject of improper political retaliation in violation of the federal and New Jersey constitutions. Coursey also pleaded numerous common-law claims challenging his termination from his civil service position. Notably, Coursey did not file, at or before that time, any administrative complaint with the Commission contesting his discharge under the civil service laws and regulations.
In July 2009, the Law Division, mainly at the request of the City, transferred the dispute to the Commission pursuant to Rule 1:13-4(a), based on the doctrine of the primary jurisdiction of an administrative agency. The civil service issues relating to Coursey's discharge, and whether he had retained any reemployment rights with the City, were thereafter considered by the Commission. Because those issues were essentially regulatory in nature and were evidently deemed to not require witness testimony, the issues were considered directly by the Commission and were not tried first in hearings before an administrative law judge. The Commission confined its review to the civil service issues only, and did not delve into the separate constitutional and common-law issues that had been separately pleaded in Coursey's complaint in the Law Division.
In its February 3, 2011 decision, the Commission concluded that Coursey's administrative challenge in 2009 to his 2006 discharge was untimely under the civil service laws. Even if the challenge had been timely, the Commission found that the City's decision to terminate Coursey from his position as demolition coordinator was proper under the civil service laws because he was a provisional, rather than a permanent, holder of that position. The Commission did find that Coursey was entitled to be placed on a special reemployment list for rehire, since he had attained permanent civil service status with the City as a clerk typist. However, it ruled that Coursey's inclusion on the rehire list only applied to prospective employment opportunities, due to the untimeliness of his administrative appeal. The Commission also found that Coursey was entitled to payment for earned vacation time, but not back pay or counsel fees. Lastly, the Commission found it lacked jurisdiction to decide whether Coursey was owed monies for his unused sick and administrative time.
Coursey moved for reconsideration, which the Commission denied in its second written decision dated January 12, 2012. In that second decision, the Commission reiterated its finding that Coursey had not filed a timely administrative appeal contesting his termination under the civil service laws. The Commission determined that the three-year gap between Coursey's 2006 discharge and his civil service challenge to that action in 2009 was "not a reasonable amount of time." It further reiterated that Coursey had no vested right to his provisional position as a demolition coordinator. The Commission repeated its earlier conclusion that Coursey had lost his permanent employee status as a clerk typist, a position he left in 1991, but that he was entitled, by virtue of his ensuing service on the City Council, to have been placed by the City prospectively on a special reemployment list eligible for rehire by the City. The Commission again denied Coursey's claims for counsel fees.
Coursey then attempted to revive his lawsuit in the Law Division, an attempt the trial court denied. He has now separately appealed both the Commission's final agency decisions (No. A-3411-11) and various orders of the Law Division (No. A-4961-10) denying his attempts to revive his civil action to adjudicate the non-civil service claims. The City has not cross-appealed the Commission's decision to place Coursey prospectively on a special reemployment list.
In this particular appeal, Coursey argues that the Commission erred in (1) treating his administrative appeal as untimely; (2) concluding that the termination from his position as a demolition coordinator did not violate the civil service laws; (3) denying him retroactive reinstatement to his former clerk typist position; and (4) denying him counsel fees.
As we assess these arguments, our review of the Commission's final agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011). Under well-settled principles of appellate review and administrative law, we owe considerable deference to State agencies in their application of regulations entrusted to their expertise and legislatively-delegated responsibilities. See In re Carter, 191 N.J. 474, 482-83 (2007) (citing Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). In general, we do not set aside an agency's action 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); see also Karins v. City of Atl. City, 152 N.J. 532, 540 (1998). Our appellate courts have applied such deference when reviewing determinations of the Commission, or of its predecessor agencies that have administered the civil service laws. See, e.g., Campbell v. Dep't. of Civil Serv., 39 N.J. 556, 562, 578 (1963); Falcey v. Civil Serv. Comm'n, 16 N.J. 117, 125 (1954); Matter of Sheriff's Officer, 226 N.J.Super. 17, 21-22 (App. Div. 1988).
We first consider the Commission's finding that Coursey's challenge to his discharge under the civil service laws was untimely. We agree with the Commission that his delay in seeking relief was unreasonable. N.J.A.C. 4A:2-1.1(b) requires that an administrative appeal with the Commission must be filed within twenty days of the employee receiving notice of the employer's adverse decision. Although N.J.A.C. 4A:1-1.2(c) allows that twenty-day deadline to be relaxed on a demonstration of good cause, the Commission did not abuse its discretion in declining to find such good cause under the circumstances presented here.
Contrary to his contentions, Coursey was not entitled to pre- and post-termination notice and a hearing, since he served in a provisional position at the time of his termination. See N.J.S.A. 11A:2-13; N.J.A.C. 4A:2-2.1, -2.5; Melani v. Cnty. of Passaic, 345 N.J.Super. 579, 586 (App. Div. 2001). Thus, since Coursey did not have to be provided with written notice of his termination, his appeal was required to be made "within [a] reasonable time." See N.J.S.A. 11A:2-15; N.J.A.C. 4A:2-1.1, -1.7(b).
The record shows that Coursey did not appeal his termination to the Commission until the trial court transferred jurisdiction to that agency in 2009, despite Coursey's receipt much earlier of a January 31, 2006 letter from his union advising him to request his "last certified permanent classification" in writing from the Commission. The Commission's determination that Coursey's three-year delay in seeking the agency's review was unreasonable under these circumstances is well supported by applicable law. Moreover, Coursey's 2006 letter to a City official stating his intent to "formally griev[e]" his termination and requesting "a formal [h]earing" did not adequately demonstrate his intent to appeal his discharge to the Commission.
Coursey contends there was "no need" for him to appeal in 2006 because the Commission, by its May 1, 2006 letter, had determined he was entitled to reinstatement as a clerk typist. That letter had been written to Michael Ford a member of the Committee to Restore Fiscal Responsibility from Leslie Summiel Manager of the Commission The letter concerned whether terminations and demotions of certain City employees including Coursey were proper With respect to Coursey the letter stated in pertinent part:
Coursey had attained permanent status as a Clerk Typist on October 2 1991 Our records show that he was separated on January 20 2006 It appears that his termination was improper since he had rights to the Clerk Typist title Our Division of Human Resource Management is continuing a review of this matter
Contrary to Coursey's assertions Ford's May 1 2006 letter did not conclusively establish his right to reinstatement as a clerk typist Rather it was a preliminary letter noting a tentative assessment of his circumstances that was subject to further investigation Moreover despite that letter nothing from the record demonstrated that Coursey sought the Commission's administrative review of his termination until the Law Division's transfer order in 2009 We do not construe Coursey's November 2007 Law Division complaint which did not plead any civil service law violations as comprising a timely request for administrative review that had simply been misfiled in a judicial forum In fact it was the motion judge not Coursey who triggered the Commission's involvement
In his brief, Coursey attempts to analogize his circumstances to those in In re Allen, 262 N.J.Super. 438 (App. Div. 1993). We disagree. In Allen, the employee, John Allen, was placed on a one-year medical leave of absence from his permanent position as police sergeant with the Hazlet Township Police Department (the "Township"). Id. at 441. The Police and Fireman's Retirement System ("PFRS") ruled that Allen was permanently and totally disabled, and thus granted him an ordinary disability retirement in March 1988. Ibid. During the pendency of Allen's appeal from that PFRS determination, his injury healed to the point that he was no longer disabled. Ibid. In April 1989, Allen sought reinstatement to his former position. Ibid. While the PFRS was reviewing that application, Allen made a series of inquiries to the Department of Personnel (the "DOP") requesting clarification of his right to return to his former position. Ibid.
In October 1989, the PFRS determined that Allen was fit for reemployment. Ibid. Allen continued to seek a definitive response from the DOP requesting reinstatement to his former position, twice demanding hearings. Ibid. In a letter, the DOP ultimately advised the Township that Allen "had no right to be restored to his prior position or to be credited with seniority for his prior service. The [DOP] did not send a copy of this letter to Allen and did not apprise him of his right to appeal." Ibid. In April 1990, Allen entered into an agreement with the Township, in which he was appointed to the position of police officer. Ibid. In November 1990, Allen appealed to the Merit System Board (the "Board"), seeking reinstatement as sergeant and seniority for his aggregated service. Id. at 441-42. The Board ruled in favor of Allen and directed the Township to reappoint him to the position of sergeant when the next vacancy occurred. Id. at 442.
On appeal to this court, the Township argued that Allen's appeal to the DOP was untimely. Ibid. We rejected that argument, noting that Allen had repeatedly sought clarification of his employment status through correspondence in 1989 and 1990. Ibid. Moreover, the DOP letter to the Township was not sent to Allen and contained no reference to his right to appeal. Id. at 442-43.
The present case is distinguishable from Allen. In Allen, the employee sought clarification of his purported right to reinstatement as police sergeant multiple times from the civil service agency, initially seeking clarification approximately one year after his placement on disability retirement. Here, despite receiving a January 2006 letter advising him to request clarification as to his alleged permanent status, Coursey failed to seek the Commission's review until 2009, and then only after the trial court had transferred the matter. His lack of action in the interim was fairly deemed to be unreasonable.
We recognize that Coursey alleges that discussions with various City representatives had taken place after his January 2006 discharge, which he points to as justification for his delay. Such discussions, even assuming they took place, do not estop the Commission from enforcing the applicable time limits prescribed by its laws and regulations. See County of Morris v. Fauver, 153 N.J. 80, 104 (1998) (disfavoring the application of estoppel principles against governmental agencies).
In sum, Coursey failed to take sufficient timely action to preserve his rights in the civil service system, a system which he should have been well familiar with, given his many years of classified service and his role as a member of the City Council. In any event, the Commission did examine the substance of Coursey's claims, but essentially found them without merit, except for the prospective assignment to a special reemployment list. The Commission did not approach this matter in a manifestly arbitrary or capricious fashion. Its finding of untimeliness has substantial and adequate support in the record.
The Commission's rejection of Coursey's claims relating to his removal by the City as a provisional employee in the position of demolition coordinator was consistent with the governing statutes and regulations. The Civil Service Act, N.J.S.A. 11A:1-1 to:12-6 (the "Act"), distinguishes between a permanent employee and an employee who is provided with a provisional appointment. A permanent employee is defined as "an employee in the career service who has acquired the tenure and rights resulting from regular appointment and successful completion of the working test period." N.J.A.C. 4A:1-1.3. See also N.J.S.A. 11A:1-2(e) ("It is the public policy of this State to protect career public employees from political coercion and to ensure the recognition of such bargaining and other rights as are secured pursuant to other statutes and the collective negotiations law."). In contrast, a provisional appointment means "employment in the competitive division of the career service pending the appointment of a person from an eligible list." N.J.A.C. 4A:1-1.3.
To be sure, "[t]he legislature has placed a high priority on safeguarding the employment rights of permanent civil service employees." In re Chief Clerk, 282 N.J.Super. 530, 534 (App. Div. 1995). For example, "before any disciplinary action . . . is taken against a permanent employee . . ., the employee shall be notified in writing and shall have the opportunity for a hearing before the appointing authority or its designated representative." N.J.S.A. 11A:2-13; see also N.J.A.C. 4A:2-2.1, -2.5. In addition, permanent employees are afforded due process protections with respect to layoffs. N.J.S.A. 11A:8-1 to -4.
Thus, while permanent employees "have pre-termination appeal and hearing rights" and can "be discharged or demoted only for cause, " provisional employees "can be terminated at any time at the discretion of the employer." Melani, supra, 345 N.J.Super. at 586; accord Williams v. Civil Serv. Comm'n, 66 N.J. 152, 156 (1974) (stating that the appellant, an assistant municipal dog warden, "was a provisional or temporary employee subject to be terminated at any time at the discretion of the municipality"); Grexa v. State, Dep't. of Human Servs., 168 N.J.Super. 202, 207 (App. Div. 1978) (stating that employer "has the right to discharge [a provisional] employee with or without cause").
Here, it is undisputed that Coursey was a provisional employee in the demolition coordinator position at the time of his termination. Thus, he was not entitled to a pre-termination hearing or written notice, N.J.S.A. 11A:2-13; N.J.A.C. 4A:2-2.1(a), -2.5, nor was he entitled to appeal his termination from that position. N.J.S.A. 11A:2-14; N.J.A.C. 4A:2-2.8. Regardless of whether the City's business administrator was authorized to fire Coursey or whether Coursey's political affiliation factored into the termination decision, the fact remains that Coursey's termination from the demolition coordinator position did not violate civil service laws. Thus, since the Commission's finding is well supported by the law and is based on credible, record evidence, we see no reason to disturb it.
As we have noted, the Commission determined that Coursey should have been automatically added to the special reemployment list for clerk typist after six years in his elected public office position. Nevertheless, the Commission found that he was only entitled to placement on the list for prospective employment opportunities. The Commission further ruled that Coursey was not entitled to back pay because he failed to administratively appeal his termination and exclusion from the list in a timely manner.
The relevant statutory provision that delineates a "special reemployment list" provides, in pertinent part:
Any person holding a position in the career service of any political subdivision shall upon written request be granted a leave of absence, without pay, to fill any elective public office for the term of the office. Upon the expiration of the term of office, that person shall be entitled to resume the position held at the time of the granting of the leave of absence, if the employee shall apply for reinstatement before the expiration of the leave of absence and return to duty within six years after the commencement of the leave.
. . . .
In the event that the term of the elective public office of the person to whom such leave was granted expires after six years from the commencement of such leave, the name of such person, upon the expiration of the six year period, shall be placed on a special reemployment list.
[N.J.S.A. 11A:6-14 (emphasis added); see also N.J.A.C. 4A:6-1.17(a)(1) (similarly stating that a permanent employee shall be placed on a special reemployment list after a term of elective office that exceeds six years).]
Here, Coursey maintains that he should have been placed on the City's special reemployment list for clerk typist in 1997, six years after he took a leave of absence from that position and began serving in public office as a Councilman. In its written decisions, the Commission agreed with that discrete aspect of Coursey's claims. That determination is well-supported by applicable law. N.J.S.A. 11A:6-14; N.J.A.C. 4A:6-1.17(a)(1).
Nevertheless, with respect to the appropriate remedy, the Commission ultimately found that Coursey was entitled to inclusion on the special list for employment opportunities only prospectively, since he had failed to administratively appeal his 2006 termination in a timely manner. That was a reasonable determination. Retroactive relief in civil service matters often affects not only the taxpaying public's financial interests, but may also affect the interests of other public employees whose seniority or other rights may be impaired if the Commission grants another employee greater rights. The Commission's decision here to limit Coursey to prospective relief was a fair application of its authority to administer the civil service system, and we will not set it aside.
Additionally, Coursey asserts that the Commission acted "at least negligently" when it failed to place him on the special reemployment list in 1997 after his sixth year as a Councilman, and thus he should have been retroactively appointed as clerk typist and awarded back pay. We detect no such negligence on the part of the Commission. Under the circumstances presented, the Commission did not act in an arbitrary, capricious, or unreasonable manner by prospectively reinstating Coursey and declining to award him back pay. See N.J.S.A. 11A:2-22 (noting that an award of back pay is within the Commission's discretion); N.J.A.C. 4A:2-1.5(b) (stating that an award of back pay is appropriate "where the Commission finds sufficient cause based on the particular case").
We need not say much about the Commission's rejection of Coursey's demand for counsel fees. An award of counsel fees incurred in litigating the wrongful termination of a provisional employee before the Commission lies wholly within Commission's discretion. See N.J.S.A. 11A:2-22 (stating that the Commission "may award . . . reasonable attorney fees to an employee as provided by rule" (emphasis added)). Moreover, N.J.A.C. 4A:2-1.5(b) provides, in pertinent part:
[C]ounsel fees may be awarded in disciplinary appeals and where a layoff action has been in bad faith. See N.J.A.C. 4A:2-2.10. In all other appeals, such relief may be granted where the appointing authority has unreasonably failed or delayed to carry out an order of the Civil Service Commission or where the Commission finds sufficient cause based on the particular case. A finding of sufficient cause may be made where the employee demonstrates that the appointing authority took adverse action against the employee in bad faith or with invidious motivation.
Here, the Commission found no such "sufficient cause" to justify an award of fees, essentially because Coursey failed to file a timely appeal. That determination is not arbitrary, capricious, or unreasonable, and it is amply supported by the record.
Coursey further submits that another regulation, N.J.A.C. 4A:2-2.12(a), necessitates an award of counsel fees to him. This regulation provides that the Commission "shall award partial or full reasonable counsel fees incurred in proceedings before it and incurred in major disciplinary proceedings at the departmental level where an employee has prevailed on all or substantially all of the primary issues before the Commission." N.J.A.C. 4A:2-2.12(a). However, the regulation does not apply to the situation here because Coursey was a provisional employee at the time of his termination. See N.J.A.C. 4A:2-2.1(a) (stating that Subchapter 2 "applies only to permanent employees in the career service" (emphasis added)); see also In re Hearn, 417 N.J.Super. 289, 299-300 (App. Div. 2010). Moreover, even if N.J.A.C. 4A:2-2.12(a) were somehow construed to apply here, Coursey did not prevail "on all or substantially all of the primary issues before the Commission, " because the Commission properly determined that he was not wrongfully terminated from his demolition coordinator position, and that he was not entitled to back pay.
The Commission's final agency decision dated February 3, 2011, and its ensuing denial of Coursey's motion for reconsideration on January 12, 2012, are affirmed.