Opinion
DOCKET NO. A-0129-11T2
03-06-2013
IN THE MATTER OF ALBERTITO COLON.
Albertito Colon, appellant pro se. Jeffrey S. Chiesa, Attorney General, attorney for Civil Service Commission (Nicole P. Colon, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Hoffman.
On appeal from the Civil Service Commission, Docket No. 2011-3187.
Albertito Colon, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for Civil Service Commission (Nicole P. Colon, Deputy Attorney General, on the brief). PER CURIAM
Albertito Colon (Colon) appeals from a final determination of the Civil Service Commission (Commission) dated January 21, 2011, which denied his application to reinstate his administrative appeal, and the Commission's decision dated July 18, 2011, denying his motion for reconsideration. We affirm.
Colon was employed as a Senior Medical Security Officer at the Ann Klein Forensic Center in the New Jersey Department of Human Services (Department). The Department charged Colon with conduct unbecoming a public employee and removed him from his position, effective December 28, 2009. Colon filed an appeal with the Commission, which referred the matter to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge.
The OAL scheduled the matter for a telephonic, pre-hearing conference on April 19, 2010, and issued a written notice to the parties. Colon did not appear for the conference and he did not attempt to contact the OAL to explain his nonappearance. On April 19, 2010, the OAL issued a notice indicating that Colon had failed to appear and returned the matter to the Commission for a final decision. The Commission dismissed the appeal.
On May 11, 2010, Colon sought reinstatement of his appeal. He said that on May 3, 2010, he requested representation by an attorney. He claimed that he was unfamiliar with the procedure for scheduling a hearing. He said he contacted his union, which referred him to an attorney. According to Colon, his attorney attempted to enter an appearance in the case but was advised that, after the nonappearance on April 19, 2010, the OAL had marked the matter "Failure to Appear." Colon said he had not abandoned his appeal and requested that it be rescheduled.
The Department opposed the application. The Department maintained that notice of the telephonic pre-hearing conference had been sent to Colon and his union representative but neither participated in the call or contacted the OAL to explain why they could not participate. The Department noted that the OAL did not issue the "Failure to Appear" notice until April 23, 2010, and Colon took no steps to pursue the matter until his appeal had been dismissed.
The Commission determined that Colon had not presented sufficient evidence to justify his nonappearance for the pre-hearing conference. In its decision of January 21, 2011, the Commission stated that on April 7, 2010, the OAL had issued a notice of the scheduled pre-hearing conference and Colon had not disputed that he received the notice.
The Commission noted that Colon claimed that he was unfamiliar with the procedure and called his union representative. The Commission stated, however, that Colon received the notice and failed to contact the OAL before the scheduled conference date. Accordingly, the Commission denied Colon's application to reinstate the appeal.
Colon thereafter filed a motion seeking reconsideration of the Commission's January 21, 2011 decision. Colon asserted that he advised his union representative about the matter, and the representative informed him that the union would retain an attorney to represent him. Colon asserted that he relied upon the union representative's direction that his appeal was being handled by the union. Colon said he was not responsible for the delay in obtaining counsel, and he believed he had followed the appropriate steps in the appeal process.
The Commission determined that reconsideration of its previous decision was not warranted. The Commission stated that Colon had
not provide[d] any new evidence or additional information and merely reiterate[d] his prior argument that his union representative informed him that he was not required to take any action with regard to contacting the OAL. Further, while [Colon] maintain[ed] that he contacted his union representative and union president, he has not provided any evidence or documentation from his union representative or union president in support of his assertion that he was informed that he was not required to take any action on behalf of his appeal or to contact the OAL.
The Commission said it was not persuaded by Colon's assertion. The Commission concluded that Colon had not "presented any new arguments or evidence and has failed to establish" that it made "a clear material error" in its previous decision. The Commission denied Colon's motion for reconsideration. This appeal followed.
Colon argues that the Commission's decisions should be reversed because he did not attend the pre-hearing conference after he was told that the union would handle all legal "aspects" of the matter. Colon contends that the Commission should have reinstated the matter and allowed him to contest his removal.
Our role in reviewing administrative agency decisions is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). We may reverse an agency's decision only if it is arbitrary, capricious or unreasonable, or not supported by substantial credible evidence. Ibid. (citing Henry, supra, 81 N.J. at 579-80).
In reviewing an agency's decision, we consider whether: (1) the agency's action is consistent with the law; (2) the record contains substantial evidence to support the factual findings upon which the agency acted; and (3) whether the agency clearly erred in applying the law to the facts and reached a decision that could not reasonably have been made based on a consideration of the relevant factors. Ibid. (citing In re Carter, 191 N.J. 474, 482-83 (2007)).
We are satisfied that there is substantial credible evidence to support the Commission's refusal to reinstate Colon's appeal and its denial of his motion for reconsideration. As the Commission explained, Colon received notice that the OAL had scheduled his administrative appeal for a telephonic pre- hearing conference. He did not appear nor did he contact the OAL to explain his nonappearance.
Colon claimed that he contacted his union representative and union president and was assured that he did not have to take any action with regard to the scheduled pre-hearing conference. However, as the Commission noted, neither the union representative nor union president submitted an affidavit or certification corroborating Colon's assertions. The Commission reasonably refused to credit Colon's assertions in the absence of such corroboration.
Furthermore, Colon knew or should have known that an attorney had not been retained to represent him in the matter. The OAL's notice of April 7, 2010, which scheduled the telephone conference, stated in pertinent part, "Parties who do not have an attorney should immediately contact this office at the above number to supply a telephone number where they can be reached at the date and time listed above."
It was incumbent upon Colon to contact the OAL and provide the information requested, to seek an adjournment until counsel was retained for the case, or explain why he would not be available for the conference. Under the circumstances, it was not arbitrary, capricious or unreasonable for the Commission to dismiss Colon's appeal and refuse to reconsider its decision.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION