IN THE MATTER OF NOELING H. MILLER, COUNTY OF BURLINGTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0653-05T10653-05T1

IN THE MATTER OF NOELING H. MILLER,

COUNTY OF BURLINGTON

_______________________________________________________________

 

Submitted: September 26, 2006 - Decided October 18, 2006

Before Judges Graves and Lihotz.

On appeal from Final Administrative Action of the Merit System Board, DOP Docket No. 2004-2626, OAL Docket No. CSV 2033-04.

Mark W. Catanzaro, attorney for appellant Noeling H. Miller (Ashley H. Auerbach, on the brief).

Evan H.C. Crook, Burlington County Solicitor, attorney for respondent County of Burlington (Kendall J. Collins, Assistant County Solicitor, on the brief).

Anne Milgram, Acting Attorney General, attorney for respondent Merit System Board (Pamela N. Ullman, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Noeling H. Miller, a Burlington County Corrections Officer, appeals from a disciplinary penalty issued by the New Jersey Department of Personnel Merit Systems Practices and Labor Relations Board (the Board). We affirm.

While working at the Burlington County Jail (BCJ), appellant permitted the unauthorized transfer of one prisoner to share the cell of another in violation of Section 1258 of the BCJ Standard Operation Policy and Procedure Manual for the Disciplinary Detention Unit. That section, at Paragraph 22, states: "Cell changes are not permitted unless authorized by [the] shift supervisor or other competent authority." Appellant was charged with "incompetency, inefficiency or failure to perform duties, neglect of duty, and other sufficient cause," including failure to follow the BCJ's policies and procedures, and was issued a twelve-working-day suspension. Appellant does not dispute the impropriety of his conduct, but appeals the discipline issued, maintaining that his failure to obtain authorization for the prisoner transfer was a minor infraction resulting in no negative consequence, thus the suspension should be at most, five working days.

The Administrative Law Judge (ALJ) balanced appellant's "no harm, no foul," position against the need for the BCJ to "run like a paramilitary operation in which the enforcement of rules and procedures is paramount," determining appellant's rationale for failing to follow the known procedures was "reprehensible." After considering appellant's past disciplinary record, including twenty-five infractions disciplined by six reprimands and twelve suspensions, the ALJ recommended affirming the twelve-working-day suspension.

The Board, alone, is authorized to make the final agency decision in this matter, N.J.S.A. 11A:2-2, not the ALJ. The Administrative Procedures Act (APA), N.J.S.A. 52:14B-1 to -15, requires the Board to issue its final decision to adopt, modify or reject the ALJ's initial decision, within forty-five days of receipt, unless extended for good cause by the Director of the Office of Administrative Law (OAL). N.J.S.A. 52-14B-10(c) and (d). If the Board fails to issue its final decision accompanied by its findings of fact and conclusions of law within this allotted time, the ALJ's recommendation becomes the final decision. Ibid.

Because it lacked a quorum, the Board sought to extend its period of review. An order enlarging the time for action was issued and the form of order reports it was sent to the parties after execution. Appellant asserts he did not receive a copy of the order, although he acknowledges he changed counsel following the contested case hearing.

Upon de novo review, the Board rejected the ALJ's recommendation for punishment, increasing the disciplinary period of suspension to thirty working days. N.J.S.A. 11A:2-19.

Appellant challenges the enforceability of the Board's decision issued beyond the statutory time period. Relying on the Uniform Administrative Procedure Rules, adopted by the OAL to implement N.J.S.A. 52:14B-10(c) and (d), see N.J.A.C. 1:1-1.1 to -21.6, appellant contends the Board's failure to provide him with notice of the request for an order of extension per N.J.A.C. 1:1-18.8, renders the extension and the Board's subsequent decision invalid, and thus, automatically makes the ALJ decision final.

A literal reading of N.J.S.A. 52:14B-10(c), as sought by appellant, has been rejected. See King v. N.J. Racing Comm'n., 103 N.J. 412, 425 (1986); Capone v. N.J. Racing Comm'n., 358 N.J. Super. 339, 348 (App. Div. 2003); Dimaria v. Bd. of Trs. of Pub. Employees Ret. Sys., 225 N.J. Super. 341, 346-47 (App. Div. 1988). The objective of N.J.S.A. 52:14B-10(c) is "to encourage prompt consideration and disposition of contested cases[,]" King, supra, 103 N.J. at 419, and the statutory automatic approval mechanism "should be applied with caution." Id. at 422, (quoting Aurentz v. Planning Bd. of Tp. of Little Egg Harbor, 171 N.J. Super. 135, 142 (Law Div. 1979)).

Prior to the expiration of the forty-five day time period, the Board sought a request for extension due to a lack of a quorum. OAL records reflect the parties were sent the Director's order granting the extension request. Thereafter, the Board timely rejected the ALJ's decision and issued its factual findings and conclusions. N.J.S.A. 52:14B-10(c) and (d). Our review of the record discloses no bad faith, inexcusable negligence, or gross indifference on the part of the Board. Further, even if notice to appellant of the request for extension was delayed, such a "non-substantive error or . . . procedural mistake" would not lead to "the draconian result of . . . depriv[ing] [the Board] of final decision-making authority." Capone, supra, 358 N.J. Super. at 346 (quoting Chapel v. Bd. of Trs. of Pub. Employees Ret. Sys., 258 N.J. Super. 389, 397 (App. Div. 1992)).
In the present circumstances, where the agency has clearly and unambiguously taken timely action, we conclude the provision of N.J.S.A. 52:14B-10(c), providing for automatic adoption of an ALJ's decision was not triggered and, therefore we affirm the Board's final decision.

 
Affirmed.

(continued)

(continued)

5

A-0653-05T1

October 18, 2006