IN THE MATTER OF TANYA JOHNSON

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0482-07T20482-07T2

IN THE MATTER OF TANYA JOHNSON

________________________________________________________________

 

Argued January 21, 2009 - Decided

Before Judges Wefing and Parker.

On appeal from a Final Administrative Action of the Merit System Board, DOP Docket No. 2007-1413.

Philip B. Whitcomb argued the cause for appellant, Tanya Johnson (Kamensky, Cohen & Associates, attorneys; Mr. Whitcomb, on the brief).

Betty M. Ng, Deputy Attorney General, argued the cause for respondent New Jersey State Parole Board (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Ng, on the brief).

PER CURIAM

Petitioner Tanya Johnson appeals from a final decision of the Merit System Board (Board) rendered on August 17, 2007 terminating her employment as a parole officer recruit.

In her position as a recruit, petitioner was required to complete a Police Training Commission (PTC) course. She began the basic course on January 9, 2006. On March 24, 2006, she failed a test for unarmed defensive tactics. She was given remediation training, but on March 29, petitioner failed the test again and was dismissed from the PTC course.

On that same date, March 29, 2006, petitioner was served with a notice of dismissal from her position as a parole officer recruit. On March 31, 2006, she was served with a preliminary notice of disciplinary action for failure to comply with N.J.A.C. 4A:2-2.3(a)(11), which required her to successfully complete all of the instructional areas of the training cycle. She was removed effective April 4, 2006, and a departmental hearing was held on July 19, 2006. The charge was sustained.

Petitioner appealed to the Department of Corrections (DOC) Training Academy on April 20, 2006. The Training Academy, however, was not the proper venue for the appeal and petitioner's counsel was advised that the appeal had been filed with the wrong party and had to be filed with the PTC. The appeal was not sent to the proper venue until almost a year after her dismissal, however.

The matter was referred to the Office of Administrative Law (OAL) and, thereafter, the appointing authority moved to dismiss on the grounds that the appeal was not timely filed with the PTC. The ALJ granted the motion and the matter was dismissed with prejudice. Petitioner appealed to the Board and the Board affirmed the ALJ's dismissal of the appeal. The Board, however, dismissed the appeal without prejudice, stating:

[A]s previously indicated, the record indicates that the appellant is currently attempting to have the PTC accept the untimely appeal of her dismissal from the Training Academy. If such an attempt is ultimately successful, it is clear that she should be allowed to go forward with the current matter. Accordingly, it is appropriate to dismiss the appellant's appeal without prejudice. Should the PTC accept the appeal of her dismissal from the Training Academy, the appellant can petition the Board to reopen the current matter.

Since the dismissal was without prejudice, the matter is not ripe for appeal because we do not know whether petitioner was ultimately successful in having the PTC accept her untimely notice of appeal. She argues here that we should order a preliminary hearing on the merits. We are not at liberty to do that, however, because petitioner has not complied with the procedural requirements for an administrative hearing. Accordingly, we dismiss this appeal without prejudice because it is interlocutory. R. 2:2-3(a)(2).

We express no opinion as to whether petitioner should be permitted to file a late notice of appeal with the PTC, except to note that under the Rules Governing The Courts,

The time to seek leave to appeal from interlocutory orders has historically always been enlargeable where an appellant erroneously regarded the order as final rather than as interlocutory and filed a notice of appeal within the time for appeal instead of a timely motion for leave to appeal.

[Pressler, Current N.J. Court Rules, comment 3 on R. 2:4-4 (2009) (citing Rosenau v. New Brunswick, 93 N.J. Super. 49, 52 (App. Div. 1966), modified, 51 N.J. 130 (1968); Sautto v. Edenboro Apartments, Inc., 69 N.J. Super. 420, 423 (App. Div. 1961)).]

Appeal dismissed without prejudice.

 

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A-0482-07T2

June 8, 2009