IN THE MATTER OF JONATHAN ORTIZ, HUDSON COUNTY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3936-08T33936-08T3

IN THE MATTER OF JONATHAN

ORTIZ, HUDSON COUNTY DEPARTMENT

OF CORRECTIONS

 
 

Submitted May 26, 2010 - Decided

Before Judges Graves and J. N. Harris.

On Appeal from a Final Administrative Decision of the New Jersey Civil Service Commission, No. 2009-3062.

The Toscano Law Firm, LLC, attorneys for appellant Jonathan Ortiz (Patrick P. Toscano, Jr., of counsel; Michael Garcia, on the brief).

Paula T. Dow, Attorney General, attorney for respondent New Jersey Civil Service Commission (Andrea R. Grundfest, Deputy Attorney General, on the statement in lieu of brief).

Hudson County Counsel, attorney for respondent County of Hudson (Daniel W. Sexton, Assistant County Counsel, of counsel and on the brief).

PER CURIAM

Appellant Jonathan Ortiz was employed as a Hudson County Corrections Officer until May 1, 2008, when a final disciplinary action was taken against him by his public employer, the County of Hudson (County), specifically: "[r]esignation not in good standing, effective May 01, 2008."

Ortiz was suitably served with a written copy of this final disciplinary action seventeen days later, on May 17, 2008. It was not until 285 days later, on February 26, 2009, that Ortiz eventually mailed an appeal to the Civil Service Commission (Commission), contending that the action taken by the County was "not only [a] violation of the Attorney General Guidelines Internal Affairs Policies and Procedure (Rev. 2000), but also a violation of Mr. Ortiz's substantive and procedural due process rights." On March 18, 2009, the Commission denied Ortiz's request for a hearing, effectively terminating his appeal, explaining, "[s]ince the appeal in this matter was not perfected within [twenty] days of receipt of the Final Notice of Disciplinary Action, the request for a hearing was denied." This appeal ensued.

Our careful review of the record confirms that there is no factual dispute concerning the date of the County's disciplinary action, the date of service of the written memorialization of that adverse employment action upon Ortiz, or the date Ortiz finally mailed his appeal to the Commission. Additionally, Ortiz neither provides an explanation nor an excuse for the delay in filing the appeal with the Commission. Instead, he argues the merits of his claim that the County deprived him of substantive and procedural due process, and that he should have never been removed from his position as a corrections officer. Because Ortiz failed to appeal the notice of final disciplinary action in a timely fashion, and has not provided any basis equitable or otherwise to toll the limitation of actions, we affirm.

The factual underpinnings of the County's disciplinary actions, Ortiz's defenses thereto, and the procedural niceties that were either followed or neglected, all of which resulted in the May 1, 2008 final disciplinary action, are not particularly relevant to our current review. Suffice it to say that Ortiz was initially charged on January 7, 2008, in a Preliminary Notice of Disciplinary Action, with insubordination; neglect of duty; incompetency, inefficiency, or failure to perform duties; and chronic or excessive absenteeism. A few weeks later, on April 15, 2008, Ortiz was also charged with similar offenses in a separate Preliminary Notice of Disciplinary Action for conduct that occurred on and after April 14, 2008.

In a hearing conducted on May 1, 2008, which proceeded despite Ortiz's absence, and notwithstanding a request for an adjournment by Ortiz's attorney, the Hudson County Personnel Department's hearing officer sustained the charges, finding that "[a]fter careful consideration, taking in the fact that Officer Ortiz submitted no request for leave paperwork nor did he show up for his hearing, my decision for this employee is termination, not in good standing."

Ortiz was served with a written Final Notice of Disciplinary Action on May 17, 2008. As already noted, the appeal from this action was not mailed to the Commission for another nine months. Again, neither the letter that constituted the appeal, nor its attached exhibits, provided an explanation or excuse for this nine-month repose.

Any appeal to the Civil Service Commission must be filed no later than "[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"). Ortiz acknowledges in his brief that he received the Final Notice of Disciplinary Action on May 17, 2008. Ortiz clearly did not take an appeal within the twenty-day time frame required by statute and administrative rule.

More than fifty years ago, our Supreme Court held that the twenty-day time constraint contained in N.J.S.A. 11A:2-15 is jurisdictional and cannot be relaxed, Boro. of Park Ridge v. Salimone, 21 N.J. 28 (1956); see also Mesghali v. Bayside State Prison, 334 N.J. Super. 617 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001); but see Jones v. Dept. of Civil Service, 118 N.J. Super. 323 (App. Div. 1972) (employee was entitled to a hearing on his appeal where employee's attorney wrote to the appointing authority within the twenty-day period objecting to the removal decision, and receiving no response to that letter, filed an appeal less than three weeks after the expiration of the twenty-day time limit).

Our review of an agency's decision is limited to determining whether it is supported by substantial credible evidence and is consistent with applicable law. In re Fair Lawn Boro., 406 N.J. Super. 433 (App. Div.), certif. denied, 199 N.J. 542 (2009). We must also presume that the administrative agency has acted reasonably in making its evaluation. In re Kim, 403 N.J. Super. 378 (App. Div. 2008). 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 presented and the claims made by counsel, we find no merit in the arguments raised by Ortiz; they do not warrant discussion in this written opinion. R. 2:11-3(e)(1)(E). "Here, the agency has strictly applied a jurisdictional requirement pursuant to a lawfully promulgated rule that [appellant] does not contend should be invalidated for any reason. Under such circumstances we cannot find the Board's action to be arbitrary, capricious or unreasonable." Mesghali, supra, 334 N.J. Super. at 622. Ortiz presents no viable legal theory that would support a determination that the Commission's decision was contrary to law or an abuse of discretion.

Affirmed.

 

The charges included insubordination, N.J.A.C. 4A:2-2.3(2); conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(6); neglect of duty, N.J.A.C. 4A:2-2.3(7); chronic or excessive absenteeism, N.J.A.C. 4A:2-2.3(4); as well as resignation not in good standing, abandonment of post.

The Final Notice of Disciplinary Action expressly contained information and instructions about filing an appeal and the twenty-day period within which such appeal must be prosecuted.

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A-3936-08T3

June 15, 2010