Opinion
DOCKET NO. A-4121-12T4
06-30-2015
IN THE MATTER OF LAWRENCE FURLOW, CITY OF NEWARK.
Grayson and Associates, L.L.C., attorneys for appellant Lawrence Furlow (Bette R. Grayson and Elena K. Weitz, on the briefs). Anna P. Pereira, Corporation Counsel, attorney for respondent City of Newark (Kenneth G. Calhoun, Assistant Corporation Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Civil Service Commission, CSC Docket No. 2013-2277. Grayson and Associates, L.L.C., attorneys for appellant Lawrence Furlow (Bette R. Grayson and Elena K. Weitz, on the briefs). Anna P. Pereira, Corporation Counsel, attorney for respondent City of Newark (Kenneth G. Calhoun, Assistant Corporation Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Appellant Lawrence Furlow appeals the determination of the Civil Service Commission (CSC) denying his appeal as untimely. We affirm.
I.
The following allegations are taken from the 2012 Preliminary Notices of Disciplinary Action (PNDAs) that were the basis for appellant's dismissal. Appellant was a police officer with the City of Newark Police Department (NPD). On December 3, 2002, appellant arrested a suspect for possession of a handgun knowing the charge was false; took money from the suspect for his personal gain; failed to submit the money into Property/Evidence; and falsified the police report. On April 18, 2003, appellant took money from another suspect for his personal gain, and failed to submit the money into Property/Evidence. Appellant admitted both thefts to the NPD Internal Affairs Department in August 2004, and signed a plea agreement promising to cooperate in an investigation of police corruption. However, in 2009 and 2012 appellant falsely testified in court that he was coerced into making his 2004 confession.
The City originally initiated disciplinary proceedings by serving appellant with a October 1, 2004 PNDA. On October 11, 2004, a Final Notice of Disciplinary Action (FNDA) notified appellant that he was suspended indefinitely without pay effective October 1, 2004.
On or about September 30, 2004, appellant was indicted on charges of conspiracy, N.J.S.A. 2C:5-2, official misconduct, N.J.S.A. 2C:30-2, and theft, N.J.S.A. 2C:20-3. After trials in 2009 and 2012, both resulting in hung juries, all criminal charges were dismissed on June 5, 2012.
On August 3, 2012, the City served appellant with two PNDAs relating to the 2002 and 2003 incidents, his 2004 admission, and his allegedly false testimony in 2009 and 2012. Each PNDA charged him with conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); neglect of duty, N.J.A.C. 4A:2-2.3(a)(7); other sufficient cause, N.J.A.C. 4A:2-2.3(a)(11); and violations of NPD rules and regulations. After a hearing where appellant was represented by counsel, the City issued a FNDA terminating his employment effective October 1, 2004. He was personally served with the FNDA on September 18, 2012, and again by registered or certified mail on October 15, 2012. His attorney was not served. The FNDA advised appellant: "You have the right to appeal WITHIN 20 DAYS FROM RECEIPT of this form." After detailing the procedure to file an appeal, the FNDA advised appellant: "ANY APPEAL POSTMARKED AFTER THE 20 DAY STATUTORY TIME LIMIT WILL BE DENIED."
N.J.A.C. 4A:2-2.3(a)(11) (1995) has been renumbered as (12). 44 N.J.R. 576(a) (2012).
Appellant appealed to the CSC on February 25, 2013. On April 3, 2013, the CSC denied his request for a hearing, finding his appeal was untimely. Appellant appealed to this court.
II.
We must hew to our "extremely limited" scope of review of the CSC's final administrative decision. Mesghali v. Bayside State Prison, 334 N.J. Super. 617, 622 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001). We "defer to the specialized or technical expertise of the agency," In re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422, (2008). We "affor[d] a 'strong presumption of reasonableness' to [the] administrative agency's exercise of its statutorily delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014). Thus, we only overturn an administrative agency's determination on "'a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence.'" McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 612 (2010) (quoting Virtua-West, supra, 194 N.J. at 422).
A.
This case arises under the Civil Service Act (Act), N.J.S.A. 11A:1-1 to 11-6. Under N.J.S.A. 11A:2-15, an appeal "shall be made in writing to the [CSC] no later than 20 days from receipt of the final written determination of the appointing authority." Additionally, N.J.A.C. 4A:2-2.8 requires that "[a]n appeal from a [FNDA] 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." The "statutory time limitation for filing an administrative appeal" in N.J.S.A. 11A:2-15 is "jurisdictional and 'mandatory.'" Mesghali, supra, 334 N.J. Super. at 621 (quoting Borough of Park Ridge v. Salimone, 21 N.J. 28, 46 (1956)). That time period "may be extended only by the legislature, not by an agency or the courts." Ibid.
In its April 3, 2013 Final Administrative Action, the CSC found that appellant was advised of the appeal deadline and instructed on the appeal procedure. The CSC concluded that "appellant is not entitled to a hearing regarding his removal from employment since his appeal was made approximately four months after the FNDA was served via registered or certified mail, which is well outside the statutory time frame defined in N.J.S.A. 11A:2-15." As the CSC "strictly applied a jurisdictional requirement pursuant to a lawfully promulgated rule," the CSC was reasonable in finding appellant's appeal was untimely. Id. at 622.
Appellant agrees he was personally served with the FNDA on September 18, 2012, and did not appeal to the CSC until February 25, 2013. He does not dispute he failed to meet the twenty-day time limitation under N.J.S.A. 11A:2-15. Nevertheless, he argues the time limitation does not bar his CSC appeal because the NPD did not serve his attorney even though it knew he was represented by an attorney. However, as noted above, N.J.A.C. 4A:2-2.8 specifically provides that the appeal period runs from the date "the employee" receives the FNDA, and is unaffected by the date of receipt by the employee's attorney. In Mesghali, the appellant's attorney similarly did not receive a copy of the FNDA. Id. at 620. We noted there was no provision in the Act requiring notice to an employee's attorney. Id. at 623. We held it was "incumbent upon [the employee] to contact his attorney after he received the final notice to verify that his attorney had undertaken a timely appeal." Ibid.
Appellant argues the present case is distinguishable from Mesghali because here the FNDA indicated distribution included a "Union Representative or Attorney." Mesghali recommended that a copy be designated for distribution to a "union representative or attorney." Id. at 623. However, nothing in Mesghali suggested that a copy had to be sent to an attorney rather than the union representative. In any event, "reasonable prudence from an employee facing removal from employment and a relatively short appeal period should have motivated [appellant] to verify" that his attorney received notice and was pursuing an appeal to the CSC. Id. at 623. Thus, appellant had a duty to contact his attorney concerning his appeal, and his failure to do so does not excuse his untimely appeal. See N.J.A.C. 4A:2-2.8(a); Mesghali, supra, 334 N.J. Super. at 622-23.
B.
In his appellate brief, appellant claims that the City failed to file and serve its 2012 PNDAs within the time periods set in N.J.S.A. 40A:14-147 and N.J.A.C. 4A:2-2.5(a)(1), and that the 2012 PNDAs did not fully disclose the disciplinary action sought against appellant and contained other procedural errors. The CSC properly did not address those claims, finding they had "no bearing on the requirement that he file a timely appeal" under N.J.S.A. 11A:2-15. Similarly, we may not reach his appellate claims. The Civil Service Commission is "without power to accept untimely appeals," and we are not empowered to extend the time limitation. Mesghali, supra, 334 N.J. Super. at 621. The CSC therefore properly denied appellant's request for a hearing of his appeal.
Even if, as appellant argues, N.J.S.A. 40A:14-147 acts as a statute of limitations, it is "not self-executing." Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 500 (2006). --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION