IN THE MATTER OF WILLIAM CARTER

NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-2605-08T3



IN THE MATTER OF WILLIAM CARTER,

                Appellant.

________________________________

         Submitted February 8, 2010 - Decided March 25, 2010

         Before Judges Rodríguez and Chambers.

         On appeal from Civil Service Commission,
         Docket No. 2007-3089.

         Malsbury, Armenante & Kaplan, P.A.,
         attorneys for appellant William Carter
         (Timothy G. Hiskey, on the brief).

         Paula T. Dow, Acting Attorney General,
         attorney for respondent Civil Service
         Commission (Pamela N. Ullman, Deputy
         Attorney General, on the brief).

PER CURIAM

    William Carter appeals from the Final Administrative Action

of the Civil Service Commission dated December 12, 2008, denying

his request for reconsideration and concluding that his appeal

was untimely.   We affirm.

    These are the salient facts.   On June 27, 2005, Carter, a

state employee working for the Department of Human Services (the

Department), left work early on a personal matter.   After

attending to the matter, he drove a vehicle, despite the fact

that he did not have a valid driver's license.     He was in a

serious automobile accident in which two people were injured.

    Carter was charged with assault by auto and related

offenses.   Assault by auto may be a second, third, fourth or

disorderly persons offense depending on the circumstances.

N.J.S.A. 2C:12-1c(1), (2) and (3).    Carter was charged with

violating N.J.S.A. 2C:12-1c(1) which provides that if a vehicle

is driven recklessly causing serious bodily injury to another,

the crime is a fourth degree offense and if only bodily injury

results, then the conduct is a disorderly persons offense.

    Carter received a Preliminary Notice of Disciplinary Action

from the Department dated July 1, 2005, immediately suspending

him from his employment with pay.     At the conclusion of the

informal pre-termination hearing held on July 11, 2005, the

Department suspended Carter without pay, effective that day, in

accordance with N.J.S.A. 11A:2-13 and N.J.A.C. 4A:2-2.5, pending

the outcome of the criminal complaint.    The Department's Final

Notice of Disciplinary Action dated July 22, 2005, issued after

the hearing, states that: "It is determined that the public

interest would best be served by the employee's indefinite

suspension until the disposition of the criminal complaints in

accordance with N.J.A.C. 4A:2-2.5."    The regulation in question,




                                                            A-2605-08T3
                                
2 N.J.A.C. 4A:2-2.5 (a)(2), in pertinent part, permits the

suspension of an employee "immediately when the employee is

formally charged with a crime of the first, second or third

degree, or a crime of the fourth degree on the job or directly

related to the job."

     Any appeal to the Civil Service Commission must be taken

within "[twenty] days from receipt of the final written

determination of the appointing authority."   N.J.S.A. 11A:2-15;

see also N.J.A.C. 4A:2-1.1 (b) (stating that "an appeal must be

filed within [twenty] days after either the appellant has notice

or should reasonably have known of the decision, situation or

action being appealed").   Carter acknowledges in his brief that

he received the Final Notice of Disciplinary Action on July 22,

2005.1   Carter did not take an appeal within the twenty day time

frame.

     Rather, almost a year later, on July 9, 2006, Carter wrote

the Department advising that he had recently learned that his

charges constituted either fourth degree or disorderly persons

offenses, not third degree offenses, and hence he should not

have been suspended indefinitely under the regulations.    By


1
  The Civil Service Commission advises that Carter received
formal service of the Final Notice on July 28, 2005, and
calculates his time to appeal from that date.




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letter dated August 29, 2006, the Department declined to relieve

him of the suspension because he had not taken a timely appeal

of his suspension.

     On October 19, 2006, Carter petitioned the Department of

Personnel for reinstatement and back pay and benefits.2   The

Department of Personnel denied his request for a hearing on the

basis that his appeal was untimely.    In its Final Administrative

Action issued December 12, 2008, the Civil Service Commission,

which by then had replaced the Department of Personnel,3 denied

Carter's application for reconsideration on the same basis.

     Carter appeals that decision to this court contending that

the suspension was void ab initio.    Specifically, he points out

that the statutes and regulations do not authorize an indefinite

suspension in excess of six months for fourth degree offenses.

See N.J.S.A. 11A:2-13; N.J.A.C. 4A:2-2.4(a); N.J.A.C. 4A:2-

2.5(a)(2); and N.J.A.C. 4A:2-2.7(a)(2).    He also contends that

his time to appeal should have been equitably tolled and that

the period of the indefinite suspension unnecessarily exceeded

the disposition of his criminal charge, arguing that it should

2
  Carter indicates that in order to maintain health coverage, he
thereafter applied for early retirement.

3 Effective June 30, 2008, the Department of Personnel was
abolished and its functions, powers and duties were transferred
to the Civil Service Commission. N.J.S.A. 11A:11-2.




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have ended when he completed all of the requirements for the

pretrial intervention program except probation.

    Our review of an agency decision is limited.    In re Musick,


143 N.J. 206, 216 (1996).   We must presume that the

                                               In re Vey, 272 N.J.
administrative agency has acted reasonably.

Super. 199, 205 (App. Div. 1993, aff'd, 
135 N.J. 306 (1994).

The agency's decision will be sustained unless an appellant

makes "a clear showing that it is arbitrary, capricious, or

unreasonable, or that it lacks fair support in the record."     In

re Herrmann, 
192 N.J. 19, 27-28 (2007).   In this inquiry, we

consider whether the agency followed the law in light of the

express or implied legislative policies involved, whether the

agency's findings are supported by substantial evidence, and

"whether in applying the legislative policies to the facts, the

agency clearly erred in reaching a conclusion that could not

reasonably have been made on a showing of the relevant factors."

Id. at 28 (quoting Mazza v. Bd. of Trs., 
143 N.J. 22, 25

(1995)).

    After a careful review of the record and arguments of

counsel, we find no merit in the arguments raised by Carter.       R.

2:11-3(e)(1)(E).    He has presented no viable legal theory that

would support a determination that the Department's decision was

void ab initio.    Two of the cases he relies on, Rosetty v. Twp.




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                                 5

Comm. of Hamilton, 
82 N.J. Super. 340, 346 (Law. Div. 1964),

aff'd o.b., 
96 N.J. Super. 66 (App. Div. 1967), and Strohmeyer

v. Borough of Little Ferry, 
6 N.J. Super. 282, 284 (App. Div.

1950), concern application of a statute dealing with illegal

suspensions of municipal officers and employees, and are not

readily applicable here.    In Raniere v. I & M Invest. Inc., 
159 N.J. Super. 329, 336-37 (Ch. 1978), aff'd, 
172 N.J. Super. 206

(App. Div.), certif. denied, 
84 N.J. 473 (1980), an execution

sale conducted by a sheriff was a ministerial act and void when

he failed to exhaust the debtor's personality before execution

of realty as required by statute. The decision relied on express

                             Id. at 335-36.
law governing executions.

    Carter also relies on    V.F. Zahodiakin Eng'g Corp. v.

Zoning Bd. of Adjustment of Summit, 
8 N.J. 386 (1952).     There

the Court found a municipal resolution purporting to authorize

an exception from the zoning ordinance in connection with the

sale of a tract of land void and subject to collateral attack at

any time because the act fell outside the subject matter

jurisdiction of the municipality.    Id. at 390, 395.   The Court

stated that "[w]here, as here, there is no pretense of adherence

to the statutory principle, but a design to provide a measure of

relief outside of the statute itself and in direct conflict with

its terms, the action of the quasi-judicial agency constitutes




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                                 6

an excess of jurisdiction."    Id. at 394.   The Court found that

"the action taken was not a mere irregular exercise of the

quasi-judicial function residing in the local authority.     The

proceeding was wholly beyond the statute.      It was not designed

to advance the statutory policy, but to effectuate a contractual

undertaking for private benefit in disregard of it."      Id. at

395.    These circumstances are not present in the case before us.

Here, the Department did not undertake an act outside its

statutory authority, but assumed that the facts satisfied the

statutory provision warranting suspension beyond six months.

       In Summer Cottagers' Ass'n of Cape May v. City of Cape May,


19 N.J. 493, 504 (1955), dealing with the conduct of a

municipality, the Court distinguished between a governmental act

that is "utterly beyond the jurisdiction of a municipal

corporation" and an act constituting "the irregular exercise of

a basic power under the legislative grant in matters not in

themselves jurisdictional."    If the governmental entity acts

without jurisdiction its actions are "ultra vires in the primary

sense and void."    Ibid.   If the act is merely an irregular

exercise of its power, then the act is "ultra vires only in a

secondary sense which does not preclude ratification or the

application of the doctrine of estoppel in the interest of

                                           Here, the Department was
equity and essential justice."     Ibid.




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acting within its jurisdiction in suspending Carter.   It merely

appears that a mistake was made on the degree of his criminal

charge.   However, the equities do not lie with Carter.   He must

accept responsibility for not ascertaining the degree of the

criminal charges against him and for not calling any mistake to

the attention of the Department within the time to appeal.

    In addition, Carter is not merely seeking a correction of

his suspension but he is also seeking to circumvent the time

limitations on taking an appeal to the Civil Service Commission.

As we stated in Mesghali v. Bayside State Prison, 
334 N.J.

Super. 617, 621 (App. Div. 2000), certif. denied, 
167 N.J. 630

(2001), the statutory time limitation for appeals to the Civil

Service Commission is "mandatory and jurisdictional" and may not

be extended by the agency or the courts.

    Affirmed.




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