Opinion
DOCKET NO. A-5067-11T1
05-22-2014
IN THE MATTER OF LAUREN SCHWARTZ, BERGEN COUNTY BOARD OF SOCIAL SERVICES.
Jason L. Jones argued the cause for appellant Lauren Schwartz (Weissman & Mintz, LLC, attorneys; Mr. Jones, on the brief). Justin D. Santagata argued the cause for respondent Bergen County Board of Social Services (Kaufman Semeraro & Leibman LLP, attorneys; Mr. Santagata and Paul C. Kaufman, of counsel; Mr. Santagata, on the brief). Pamela N. Ullman, Deputy Attorney General, argued the cause for respondent New Jersey Civil Service Commission (John J. Hoffman, Acting Attorney General, attorney; Ms. Ullman, on the statement in lieu of brief).
FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Maven.
On appeal from the Civil Service Commission, Docket Nos. 2010-57 and 2010-1665.
Jason L. Jones argued the cause for appellant Lauren Schwartz (Weissman & Mintz, LLC, attorneys; Mr. Jones, on the brief).
Justin D. Santagata argued the cause for respondent Bergen County Board of Social Services (Kaufman Semeraro & Leibman LLP, attorneys; Mr. Santagata and Paul C. Kaufman, of counsel; Mr. Santagata, on the brief).
Pamela N. Ullman, Deputy Attorney General, argued the cause for respondent New Jersey Civil Service Commission (John J. Hoffman, Acting Attorney General, attorney; Ms. Ullman, on the statement in lieu of brief). PER CURIAM
Appellant Lauren Schwartz appeals from the final agency decision issued by the Civil Service Commission ("Commission") dismissing her appeal of her termination from employment with the Bergen County Board of Social Services ("Board") on the basis that the appeal was untimely. We affirm.
In December 2008, appellant participated in a grievance hearing arising out of a disciplinary charge lodged against her for allegedly failing to return to work when directed to do so. During the hearing, it was disclosed that she had been working at another job while on sick leave from the Board. The disciplinary charge was subsequently resolved, with appellant receiving a twenty-five-day suspension in April 2009. The hearing officer who presided over the matter filed a supplemental decision recommending appellant's termination based upon her misuse of sick leave. Appellant grieved the supplemental decision, and a hearing was conducted on May 26, 2009, at which appellant admitted she had worked elsewhere while on "sick leave." The Board voted to terminate appellant.
On May 29, 2009, the Board's attorney faxed a letter to appellant's attorney advising him of the Board's decision and that a formal resolution memorializing its decision would be adopted at its June meeting. On that same date, the Board notified Schwartz, by both regular and certified mail, of its decision. Postal authorities attempted certified mail on three separate occasions, without success. The regular mailing was not returned to the Board.
Thereafter, over the next few weeks, appellant exchanged emails with her attorney, one of which included his instructions on how to appeal her termination and attached the forms for completing the appeal process. Appellant's attorney also advised her that she had to appeal the matter no later than June 15, 2009.
On June 23, 2009, the Board adopted a resolution terminating appellant's employment. Appellant filed an appeal of her removal with the Commission on July 10, 2009. On July 28, 2009, the Commission dismissed her appeal as untimely, as it was filed beyond the twenty-day window for such appeals. Schwartz filed a notice of appeal and, thereafter, she and the Commission stipulated to a remand. Upon remand, the Commission transferred the matter to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ) on the limited issue of the timeliness of appellant's appeal.
The Board presented one witness on its behalf, Michele Darmochwal, a twenty-year employee of the Board, who at the time of Schwartz's suspension and termination proceedings served as administrative secretary to the Board's director. Her duties included taking minutes of the Board's meetings and preparing mailings.
In her testimony, Darmochwal stated that she did not prepare the actual Final Notice Disciplinary Action (FNDA) suspending and later terminating appellant's employment, but personally prepared the FNDAs for mailing. She explained that she mailed appellant's notice by certified and regular mail and sent additional notices of the suspension and termination by regular mail to appellant's attorney and union representative. She stated the suspension notice was mailed two days before the termination notice was mailed. She testified postal authorities returned the certified mailing after three unsuccessful attempts at service. She did not recall ever having a certified mailing of an FNDA returned to the Board and stated that appellant's suspension notice, which was mailed to the same address two days earlier was not returned; nor were any of the notices sent to appellant by regular mail returned. She explained that she specifically remembered mailing appellant's termination notice because she had mailed the suspension notice two days earlier and also because she had recorded the minutes of the Board meetings where the resolutions addressing the disciplinary actions were adopted.
Appellant testified on her own behalf, explaining that she had been experiencing "non-receipt of mail, returned to sender on some mails - mailings, mixed up mail with neighbors" beginning the summer of 2008 and thereafter until August 2009. She stated she reported the problem to postal authorities in December 2008. While she acknowledged she was aware that she had been terminated from her employment with the Board as of May 26, 2009, she believed she needed the actual FNDA before she could file an appeal with the Commission.
In addition to testifying on her own behalf, appellant presented her attorney, Bennett Zurofsky, and her union representative, Rhonda Wilson. Zurofsky testified that he was the union's attorney at the Board's May 26, 2009 hearing and was aiding appellant in that capacity. He stated that he also was appearing as appellant's attorney on her twenty-five day suspension. According to Zurofsky, he was led to believe that the FNDA terminating appellant's employment would be issued after the Board's June 23, 2009 meeting when the termination resolution was adopted. Wilson testified that she was the president of appellant's union, CWA Local 1089, at the time of appellant's termination. She acknowledged that she became aware the Board had taken action to remove appellant as of May 26, 2009.
The ALJ found appellant "presumptively received the Termination FNDA because the FNDA sent by ordinary mail was correctly addressed and unreturned" and her "presumptive failure to claim or accept the certified mailing does not preclude completion of service, and respondent established office custom and demonstrated that such practice was used to prepare and mail [appellant's] FNDA." Citing Rule 1:5-4(b), governing when service of papers is complete under our court rules, the ALJ concluded that "completion of service also applies where there is a failure by the addressee to claim or accept a certified mailing."
In reaching his findings, the ALJ credited the testimony of Darmochwal. The ALJ noted that Darmochwal, credibly outlined the office custom for preparing and mailing notices, personally handled appellant's Suspension FNDA and Termination FNDA, and testified that all FNDAs had been addressed and mailed to appellant.
Having determined that appellant presumptively received the mailings, the ALJ next determined that June 1, 2009, three days after the Board sent the ordinary and certified mailings, was the date appellant actually received the FNDAs. As such, the ALJ concluded appellant's appeal, dated July 10, 2009, fell outside of the twenty-day time period, provided under N.J.S.A. 11A:2-15 and N.J.A.C. 4A:2-1.1(b) and -2.8, in which to appeal the Board's action. The ALJ found appellant knew of her termination on May 26, 2009, when she was orally advised that her termination would be effective the next day. The ALJ further found that when Zurofsky appeared as Schwartz's personal attorney or as the union representative, he acted as her agent, "meaning his receipt of the Termination FNDA constituted notice to [Schwartz]." The ALJ concluded that appellant's appeal should be dismissed as untimely.
On May 2, 2012, the Commission issued its final agency decision adopting the ALJ's initial decision except in one area. The Commission disagreed with the ALJ's determination that Zurofsky's receipt of the Termination FNDA constituted service upon appellant. It nonetheless noted that this difference in findings did not alter the outcome and thus dismissed the appeal as untimely. The present appeal followed.
On appeal, appellant contends the Commission erred when it determined that her appeal of her removal was untimely. She challenges the Board's proofs related to service of the Termination FNDA and urges that even assuming the Board established that she presumptively received her removal notice, she presented sufficient evidence to rebut this presumption. She additionally contends the appeal of her removal was filed within a reasonable time. Finally, she urges the Commission erred in dismissing her appeal of the twenty-five day suspension as moot.
We have considered each of appellant's arguments in light of the record, the arguments set forth in briefs, and the governing legal principles, and reject each of the arguments advanced. We affirm substantially for the reasons expressed in the Commission's May 16, 2012 final agency decision.
N.J.S.A. 11A:2-15 provides that a public employee subject to the Civil Service Act (Act), N.J.S.A. 11A:1-1 to 12-6, appealing from an adverse disciplinary action shall do so in writing to the Commission "no later than 20 days from receipt of the final written determination of the appointing authority." Likewise, regulations implementing the Act, specifically, N.J.A.C. 4A:2-1.1(b), require that an administrative appeal with the Commission be filed within twenty days of the employee receiving notice of the employer's adverse decision. However, N.J.A.C. 4A:1-1.2(c) allows the twenty-day deadline to be relaxed on a demonstration of good cause.
We accord deference to the ALJ's credibility determination, which the Commission, in turn, adopted. Renan Realty Corp. v. Dep't of Cmty. Affairs, 182 N.J. Super. 415, 422 (App. Div. 1981) (deference properly given where agency head had adopted ALJ's recommended decision). Thus, the record reflects that Darmochwal mailed the removal FNDA on May 29, 2009, and appellant presumptively received the notice, since the regular mail was never returned as undelivered. In addition, during this same time period, appellant received the Suspension FNDA and, in a letter to the Commission dated June 9, 2009, in which she sought to appeal the suspension FNDA, appellant acknowledged, in capital letters, she received the Suspension FNDA on May 29, 2009. The address listed on that letter, is the same address to which the FNDAs had been mailed by Darmochwal.
Additionally, the Commission's determination that appellant failed to file her appeal within a reasonable period of time is also supported by the undisputed evidence in the record. Appellant was aware she was being removed, as of May 26, 2009. Her attorney advised her that she was required to file the appeal within twenty days of the receipt of the FNDA and urged her to "count the 20-day period from [May 26, 2009] so that [she could] be absolutely certain that no argument [could] be raised that [she] did so too late." He specifically advised her and underscored that "20 days from [May 26, 2009] makes the deadline June 15, 2009."
Our review of the Commission's final agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We accord 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)). We will not disturb agency action unless that action is shown to have been arbitrary, capricious or unreasonable, or lacked fair support in the evidence, or violated legislative policies expressed or implicit in the civil service act. Thurber v. City of Burlington, 191 N.J. 487, 501 (2007). Measured under these standards, we discern no basis to correct the agency action. The ALJ's findings and conclusions, which were adopted by the Commission, were supported by substantial credible evidence, and the Commission's decision was neither arbitrary nor unreasonable. Her appeal of her removal was untimely, she did not file the appeal within a reasonable period of time, and put forth no evidence establishing good cause to relax the mandated timeframes for filing an appeal of a disciplinary action.
Appellant's final argument that the Commission erred when it determined the appeal of her suspension was moot, is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D). While we agree that a reversal of the final agency decision would not have rendered the suspension moot, since we have upheld the agency action, the Commission correctly found the twenty-five-day suspension appeal was moot.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION