Opinion
DOCKET NO. A-1898-13T2
04-02-2015
IN THE MATTER OF YOLANDE DUBUISSON, WOODBRIDGE DEVELOPMENTAL CENTER, DEPARTMENT OF HUMAN SERVICES
Edward A. Berger argued the cause for appellant. Adam Verone, Deputy Attorney General, argued the cause for respondent Civil Service Commission (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel and on the brief, Mr. Verone, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Kennedy and O'Connor. On appeal from the Civil Service Commission, Docket Nos. 2013-820 and 2013-819. Edward A. Berger argued the cause for appellant. Adam Verone, Deputy Attorney General, argued the cause for respondent Civil Service Commission (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel and on the brief, Mr. Verone, on the brief). PER CURIAM
Yolande Dubuisson appeals from a Civil Service Commission (CSC) final agency action denying her application to reinstate her appeal of a decision by her employer, the Department of Human Services, removing her from her job as a cottage services technician at the Woodbridge Developmental Center. Because we have granted a motion by appellant to supplement the record, we reverse the decision of the CSC and we remand with the instruction to reconsider appellant's application in light of the supplemented record.
Very briefly, Dubuisson appealed her removal to the CSC and the matter was transferred to the Office of Administrative Law (OAL) for a hearing. The OAL scheduled a settlement conference for December 11, 2012, and sent out a notice of the conference on November 14, 2012. Neither Dubuisson nor her attorney, Edward Berger, received the notice of the conference and, consequently, did not attend. The OAL thereafter issued a "failure to attend" notice to Berger, the parties, and counsel.
On December 13, the OAL returned the file to the CSC, and sent a notice to Berger indicating he had thirteen days to present to the CSC any excuse regarding his failure to attend the conference. Berger, apparently misreading the notice, sent a letter to the Deputy Clerk of the OAL, stating that neither he nor his client had received notice of the conference and requesting that the matter be relisted.
That letter was not forwarded by the Deputy Clerk to the CSC, and the CSC administratively dismissed the appeal on March 16, 2013. When he later learned of the dismissal, Berger applied to the CSC to reinstate the appeal.
The CSC denied the application. In its written decision, the CSC was notably skeptical about Berger's claim that he sent a letter on December 17, 2012, explaining that neither he nor his client had received notice of the conference. The CSC stated, in pertinent part:
In the present matter, there is no basis on which to grant the appellant a hearing. The appellant states that her counsel received a "Failure to Appear" notice from the OAL in December 2012 indicating that she had missed the settlement conference scheduled for December 11, 2012. Although the appellant contends that she contacted the OAL by letter dated December 17, 2012 requesting that the matter be rescheduled, the "Failure to Appear" notice specifically advised that the matter was being returned to the transmitting agency and that if she still wanted a hearing, the appellant was required to explain, in writing, why she did not appear and to send the explanation to the Department of Personnel. A review of her appeal submissions indicates that she did not send her letter to this agency or copy the appointing authority concerning her request. Further, there is no evidence that the letter that was purportedly sent to the OAL was forwarded by the OAL to this agency so that it could consider the matter of the appellant's request excuse. There is also no evidence that the appellant's December 17, 2012 request was sent via certified mail, as the certified mail receipt copied and attached to the letter is blank.
At oral argument, responding to questions from the bench pertaining to his December 17 letter to the OAL, Berger produced in court a signed return receipt showing the letter had indeed been sent and that it was received by the OAL shortly thereafter. Berger was advised that we would not consider any document not part of the record, and that he would have to move to supplement the record.
Following argument, Berger moved to supplement the record with the certified mail "green card" — a motion not opposed by respondent's counsel — and we granted the motion. Accordingly, the record now contains not only Berger's December 17 correspondence to the OAL explaining that he could not attend a conference for which he did not receive notice, but also the signed receipt indicating it had been sent by certified mail, and was received by the OAL.
Rule 2:5-5(b) states
At any time during the pendency of an appeal from a state administrative agency, if it appears that evidence unadduced in the proceedings below may be material to the issues on appeal, the appellate court, on its own motion or on the motion of any party, may order, on such terms as it deems appropriate, that the record on appeal be supplemented by the taking of additional evidence and the making of findings of fact thereon by the agency below or, in exceptional instances, by a judge of the Superior Court especially designated for that purpose.A motion to supplement the record is appropriate where, among other things, the supplementation is likely to change the result reached earlier. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 452-53 (2007). So it is in this case.
We also note that in New Jersey a hearing may be opened for good and sufficient cause "to serve the ends of essential justice and the policy of the law." In re Gastman, 147 N.J. Super. 101, 114 (App. Div. 1997) (citing Handlon v. Belleville, 4 N.J. 99, 107 (1950)). Accordingly, it is appropriate to re-open the matter before the CSC so that it may reconsider its prior determination in light of the supplemented record. Reconsideration has generally been affected by considerations of elapsed time, diligence and reliance, and has been granted generally when there was evidence of, among other things, new evidence or change in circumstances. See Ruvoldt v. Nolan, 63 N.J. 171, 183-184 (1973).
Given our respect for our State administrative agencies and their right and obligation to reconsider decisions that may be affected by a court's later supplementation of the record, we vacate the CSC's decision denying appellant's application to reinstate her appeal and we remand this matter to the CSC to reconsider Dubuisson's application in light of the supplemented record.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION