IN THE MATTER OF JUSTO DELGADO UNION CITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5463-07T35463-07T3

IN THE MATTER OF

JUSTO DELGADO,

UNION CITY.

______________________

 

Submitted September 24, 2009 - Decided

Before Judges Skillman and Gilroy.

On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2006-441.

Tomas Espinosa, attorney for appellant Justo Delgado.

O'Toole Fernandez Weiner Van Lieu, LLC, attorneys for respondent City of Union City (Juan C. Fernandez, John B. Monahan, and Lars E. Knudson, on the brief).

Anne Milgram, Attorney General, attorney for respondent Merit System Board (Andrea R. Grundfest, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant Justo Delgado appeals from the June 13, 2008 final decision of the Merit System Board (Board), upholding his removal from the Department of Public Works (DPW) in the City of Union City (City), because he failed to perform his duties, was not able to perform his assigned duties, and for insubordination. We affirm.

Appellant's employment as a street sweeper commenced in January 1999. In September of that year, the City changed appellant's title to that of laborer, a title appellant held until removed from employment. During employment, appellant suffered two work-related injuries in February 2003 and July 2004, the residuals of which restrict him from lifting objects weighing in excess of ten pounds.

On March 17, 2005, the City served appellant with a Preliminary Notice of Disciplinary Action (PNDA) signed by Luis Martin, the Commissioner of the DPW, seeking appellant's removal, charging him with: failure to perform duties; inability to perform duties; chronic or excessive absenteeism; and neglect of duty. On June 9, 2005, Filippo Iacovelli, the Deputy Director of the DPW, notified appellant that the City had dismissed the PNDA.

On June 10, 2005, the City served appellant with a second PNDA signed by Iacovelli, again seeking appellant's removal, accusing him of the same four charges as contained in the March 2005 PNDA, and of the additional charge of insubordination. On June 23, 2005, Hearing Officer Lane J. Biviano, Esq., conducted a disciplinary hearing, after which he determined that the City had proven the disciplinary charges by a preponderance of the evidence, and recommended appellant's removal from employment. On July 8, 2005, the City served appellant with a Final Notice of Disciplinary Action (FNDA) signed by Iacovelli, terminating appellant's employment, effective July 11, 2005. On July 25, 2005, appellant filed an appeal to the Board.

The Board referred the matter to the Office of Administrative Law (OAL) as a contested case. On June 15, 2007, the Administrative Law Judge (ALJ) issued his initial decision, recommending that the charges be dismissed and appellant be reinstated to his position as laborer because Iacovelli lacked statutory and local governmental authority to bring the charges, seeking appellant's removal from employment. On September 17, 2007, the Board issued its decision remanding the matter back to the OAL, concluding that Iacovelli had the authority to execute the PNDA and FNDA, and alternatively, that Iacovelli's actions had been ratified by Martin. In so determining, the Board reasoned:

Upon a de novo review, the Board disagrees with the ALJ's conclusion that Iacovelli could not sign the PNDA and FNDA. The ordinance and N.J.S.A. 40:72-9 explicitly state that the "acts of such deputy shall, in all cases, be as legal and binding as if performed by the director." The only duty that cannot be delegated to the deputy is attendance at the Board of Commissioners meetings. Although Martin claims that he did not give Iacovelli the authority to sign disciplinary notices, these duties were delegated to Iacovelli as evidenced by Martin's conduct and inaction. In this regard, Martin permitted Iacovelli to manage the daily operations of the department and Martin had notice of disciplines issued by Iacovelli. Thus, Martin ratified Iacovelli's actions. Although Martin failed to file a written list of duties with the city clerk, it would be illogical to conclude that Iacovelli was not authorized to perform certain actions simply because no duties were ever placed in writing. Moreover, Iacovelli's actions were not ultra vires, as the appellant essentially argues. An ultra vires act is an action taken by an official without capacity to perform the act and cannot be ratified. See generally, Maltese v. Township of New Brunswick, 353 N.J. Super. 226 (App. Div. 2002); Grimes v. City of East Orange, 288 N.J. Super. 275 (App. Div. 1996). The ordinance and N.J.S.A. 40:72-9 provided Iacovelli with his authority, as the duties in question may be delegated to him. Further, the Board notes that Martin's May 16, 2006 letter was issued almost a year after the FNDA. If Martin did not approve of the removal, the time for him to act was in June 2005.

On March 27, 2008, the ALJ issued a second initial decision, based on the original record, recommending that the Board uphold appellant's removal from employment, determining the City had presented credible evidence supporting the charges of failure to perform duties, inability to perform duties, and insubordination, but not the charges of chronic and excessive absenteeism and neglect of duty. On June 13, 2008, the Board adopted the ALJ's findings and issued its final decision affirming appellant's removal.

On appeal, appellant argues that Iacovelli was not properly authorized to execute the PNDA and the FNDA; the City improperly failed to reinstate him after Martin sent a letter on May 16, 2006, to the City's Department of Personnel, stating that appellant should be reinstated; the City failed to accommodate his disability, in violation of the Americans with Disabilities Act of 1990 and the New Jersey Law Against Discrimination; the City's actions in removing him from employment constituted an unlawful retaliatory action for filing the workers' compensation claims, in violation of N.J.S.A. 34:15-39.1; and the Board's decision was not supported by credible evidence in the record.

We begin our consideration of the issues raised by restating certain applicable principles. The role of an appellate court in reviewing a final decision reached by an administrative agency is limited. In re Herrmann, 192 N.J. 19, 27 (2007); In re Taylor, 158 N.J. 644, 656 (1999). The court must give deference to a final agency decision, such as the Board's, unless the decision is arbitrary, capricious, unsupported by substantial credible evidence in the record, or is in violation of express or implicit legislative policy. In re Taylor, supra, 158 N.J. at 656-57; Karins v. City of Atl. City, 152 N.J. 532, 540 (1998).

Thus, an appellate court must determine whether the agency's findings could have reasonably been reached on sufficient credible evidence in the record, "considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). However, an agency's decision that is manifestly erroneous is not entitled to judicial deference and must be set aside. L.M. v. State, Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). Nor is an appellate court bound by an agency's interpretation of a statute or its determination of a question of law. In re Carter, 191 N.J. 474, 483 (2007).

We have considered appellant's arguments in light of the record and applicable law. We are satisfied that none of the arguments are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We conclude that the September 17, 2007 and May 21, 2008 decisions of the Board are supported by sufficient, credible evidence in the record. R. 2:11-3(e)(1)(D). Nevertheless, we add the following comments.

Appellant's primary argument is that Iacovelli was not authorized by statute or City ordinance to sign either the PNDA or the FNDA, and therefore, his removal was an ultra vires act, not subject to ratification. We disagree.

Whether Iacovelli was properly authorized to sign the PNDA and the FNDA, and if not, whether his actions were capable of subsequent ratification by Martin, are questions of law. Accordingly, we are not bound by the Board's determination. In re Carter, supra, 191 N.J. at 483.

The City is governed by the commission form of government, N.J.S.A. 40:70-1 to N.J.S.A. 40:76-27, which vests all governmental powers in a Board of Commissioners and distributes those powers to five departments headed by directors, who have the authority to discipline and remove employees. N.J.S.A. 40:72-2; 40:72-4 to -7. The powers and duties of a deputy director are provided by N.J.S.A. 40:72-9. That statute provides in pertinent part:

Each director shall prescribe, in writing, the powers and duties of the deputy so appointed by him and the acts of such deputy within the scope of his authority shall in all cases be as legal and binding as if done and performed by the director for whom he is acting, but such deputies shall not be authorized to act for directors at meetings of the board of commissioners.

[N.J.S.A. 40:72-9.]

Pursuant to N.J.S.A. 40:72-3, the City adopted Ordinance 2-15.1(c), which provides for the duties of deputy directors:

Duties. The director shall prescribe the powers and duties of the deputy and the acts of such deputy shall, in all cases, be as legal and as binding as if performed by the director, but the deputy shall not be authorized to act for the director at meetings of the Board of Commissioners. The list of duties of the deputy shall be placed on file with the city clerk immediately after the appointment shall have been made and the list may be amended from time to time by the director of public works.

The question whether Iacovelli was properly authorized to sign the PNDA or FNDA, is open to debate because Martin never prescribed Iacovelli's duties in writing as required by the statute, nor placed a statement of those duties on file with the City Clerk as required by the ordinance. Nevertheless, we are satisfied that, even if Iacovelli was not so authorized, Martin impliedly ratified those actions.

"Ratification is equivalent to an original exercise of power that relates back to the date of the original act or appointment being ratified." Casamasino v. City of Jersey City, 158 N.J. 333, 345 (1999). "[T]he doctrine of implied ratification applies to individuals and municipalities when there is sufficient evidence 'to affirm the unauthorized act of [the municipality's] agent.'" Id. at 345-46 (quoting Johnson v. Hosp. Serv. Plan of N.J., 25 N.J. 134, 141 (1957)); see also Maltese v. Township of North Brunswick, 353 N.J. 226, 245 (App. Div. 2002). The doctrine has generally been applied to ratify a municipality's irregular contract actions. Johnson, supra, 25 N.J. at 140-41. However, the Court has held that doctrine is also applicable to ratification of municipalities' employment decisions, noting that "[t]he analysis of ratification of employment relations has paralleled the analysis of contract ratification." Casamasino, supra, 158 N.J. at 346.

Faced with "determining whether an improper appointment of a public official is capable of subsequent ratification by the appropriate appointing authority," courts apply the two-part analysis adopted in Grimes v. City of East Orange, 288 N.J. Super. 275, 279-81 (App. Div. 1996). Casamasino, supra, 158 N.J. at 347.

First, a court must determine whether the act in question "was ultra vires, as distinguished from intra vires." Grimes, supra, 288 N.J. Super. at 279. "Acts that are ultra vires are void and may not be ratified, while intra vires acts may be." Ibid. (quoting Bauer v. City of Newark, 7 N.J. 426, 434 (1951)). "An act is ultra vires if the 'municipality [was] utterly without capacity' to perform the act. On the other hand, an intra vires act is one that is merely 'voidable for want of authority.'" Ibid.

Second, the person or entity authorized to perform the act must expressly or impliedly ratify the act in question. Id. at 280. However, "when the act or appointment involves statutory conditions precedent, ratification must be made with the same formalities required for the original exercise of power, meaning in accordance with the statutory procedures required for the original act." Casamasino, supra, 158 N.J. at 347. Moreover, "'[a]lthough ratification may be implied by conduct, . . . it must be shown that the officials acted with full knowledge of the material facts, either actually or as a matter of law.'" Maltese, supra, 353 N.J. Super. at 246 (quoting Board of Educ. of Asbury Park v. Hoek, 38 N.J. 213, 241 (1962)).

Iacovelli's acts in signing the PNDA and FNDA meet the first part of the Grimes analysis. Municipal corporations governed by the commission form of government have the authority to appoint and remove employees. N.J.S.A. 40:72-7. Because the City had the authority to discipline and terminate appellant, the exercise of that authority by Iacovelli was, at worse, an intra vires act capable of being ratified, not an ultra vires act incapable of ratification as appellant contends.

We also conclude that the second part of the Grimes analysis was satisfied. Removal of the City's employees is subject to the procedures of the Civil Service Act, N.J.S.A. 11A:2-13 to -22, procedures complied with in this case, and not challenged by appellant. However, no statute or ordinance requires that removal of an employee be confirmed by the Board of Commissioners, or by any other person other than the Commissioner of the particular department. Compare Casamasino, supra, 158 N.J. 347-48 (finding no ratification of the mayor's appointment of the city's tax assessor where the city council failed to affirm the appointment by resolution as required by statute).

Here, as previously stated, appellant's removal did not require any formalities other than compliance with the civil service procedures for removal of a public employee. Thus, ratification of appellant's removal only required Martin, as the authorized actor, to have explicitly or implicitly approved of Iacovelli's actions with knowledge of the facts. We are satisfied such is the case.

Martin signed the March 2005 PNDA, which contained four of the same charges as the June 2005 PNDA. Martin believed the charges were proper; knew that the City sought appellant's removal; and concurred with that removal, provided appellant was accorded a fair hearing. Although Martin testified that he did not see the July 2005 FNDA until he reviewed appellant's personnel file in April 2006, he acknowledged that disciplinary documents are normally sent to him before their service on employees. Iacovelli testified that he sent notices of employees' disciplinary proceedings to Martin when signed. These facts support the Board's determination that Martin, after permitting Iacovelli to manage the DPW's daily operations, had knowledge of the disciplinary proceedings leading to appellant's removal, and yet, never took any action to reverse the July 2005 FNDA until Martin sent a letter to the personnel department in May 2006, as Martin was nearing the end of his term in office. The Board concluded that, by Martin not taking any procedural steps to reverse the July 2005 FNDA for a period of ten months, he ratified Iacovelli's actions in signing the PNDA and FNDA. We agree.

 
Affirmed.

Effective June 30, 2008, the Civil Service Commission replaced the Merit System Board. N.J.S.A. 11A:2-1. However, actions, including this appeal, pending as of that date, continue under the prior law and rule. N.J.S.A. 11A:11-5.

The ALJ conducted a hearing on November 14, 2006, January 23, 2007, and April 27, 2007. Because a portion of the last day's audiotape is indiscernible and cannot be transcribed, the appellate record does not contain a transcript of appellant's testimony before the ALJ. However, the ALJ's second initial decision of March 27, 2008, discussed infra, contains the ALJ's statement of appellant's testimony. As appellant does not contest the ALJ's statement of his testimony, we determined that a remand to the OAL to reconstruct the record is not necessary.

42 U.S.C.A. 12101 to 12213.

N.J.S.A. 10:5-1 to -49.

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A-5463-07T3

October 15, 2009