IN THE MATTER OF JAMES SESAK AND RAYMOND TANIS PASSAIC COUNTY SHERIFF'S OFFICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4493-09T3

IN THE MATTER OF JAMES SESAK

AND RAYMOND TANIS, PASSAIC

COUNTY SHERIFF'S OFFICE.

________________________________________________________________

April 29, 2011

Argued March 15, 2011 - Decided

Before Judges Baxter and Koblitz.

On appeal from the New Jersey Civil Service Commission, Docket Nos. 2008-3707 and 2010-1899.

Michael Farhi argued the cause for appellant Raymond Tanis (Kates Nussman Rapone Ellis & Farhi, L.L.P., attorneys; Mr. Farhi, on the briefs).

James M. LaBianca argued the cause for respondent Passaic County Sheriff's Office (De Yoe, Heissenbuttel & Buglione, L.L.C., attorneys; Mr. LaBianca, on the brief).

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

Respondent James Sesak has not filed a brief.

PER CURIAM

Appellant Raymond Tanis appeals the final administrative decision of the Civil Service Commission (Commission) of April 21, 2010, dismissing his appeal of a request for a title change because he filed his appeal eighteen months after the decision, rather than within twenty days as required by N.J.A.C. 4A:8-2.6(b). After reviewing the record in light of the contentions advanced on appeal, and given our limited scope of review, we affirm.

Appellant began working as a Passaic County Corrections Officer on July 1, 2002. On May 26, 2004, he was temporarily assigned to the position of Passaic County Sheriff s Officer. On March 9, 2005, he and the Sheriff signed a Lateral Title Change Agreement (Agreement) acknowledging that the Department of Personnel allows for a lateral title change upon completion of the police training course administered by the Police Training Commission. The Agreement clarifies that a lateral change is not considered an advancement in title and resets the seniority clock for the new title. The Agreement also provided that in the event of a reduction in staff, . . . a lateral change back to the title of Correction Officer shall be effectuated without recourse.

On December 21, 2005, the Commission decided that at that time it would not approve future title changes of this nature. Although Tanis graduated from the Police Academy on May 11, 2005, his lateral title was not changed prior to the Commission's December 21, 2005 decision. On November 23, 2007, the Commission again allowed lateral title changes requested by the Sheriff, to be effective November 21, 2007. Appellant was included in this group of lateral title changes.

Ultimately, appellant was laid off from his position of sheriff s officer pursuant to the Sheriff s March 8, 2008 plan. He was deemed by the Commission to be within his twelve-month test period, having been appointed in November 2007, and was thus returned to the county correctional officer title and considered ineligible for the sheriff s officer reemployment list. Appellant believed he was promised the lateral title change as of his completion of the training in May 2005, and therefore, he should be considered as having been in the sheriff s officer title as of that earlier date.

We review appellant s contentions in accordance with our standard of review. The Board's determination that Tanis did not appeal within time and, in any event, transferred title on November 21, 2007, must be affirmed unless it is "arbitrary, capricious, or unreasonable" or is not supported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 581 (1980). In determining whether an agency's decision is supported by substantial credible evidence, we are obliged to accord deference to the agency's fact-finding. Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 588 (App. Div. 1974). We "may not vacate an agency's determination merely because of doubts as to its wisdom or because the record may support more than one result." In re Petition of Cnty. of Essex, 299 N.J. Super. 577, 591-92 (App. Div.), certif. denied, 151 N.J. 463 (1997), cert. denied, 522 U.S. 1111, 118 S. Ct. 1043, 140 L. Ed. 2d 108 (1998).

N.J.A.C. 4A:8-2.6(b) states, in relevant part, that [g]ood faith and determination of rights appeals shall be filed within 20 days of receipt of the final notice of status required by N.J.A.C. 4A:8-1.6(f). Appellant received the final notice of status on March 17, 2008. It specified,

You may appeal whether the appointing authority acted in good faith in instituting this layoff plan. The burden of proof in such appeals is on the part of appellant. Such appeals must specify the grounds of your appeal and must be received within twenty (20) days of your receipt of this notice.

He did not appeal until eighteen months later, on September 29, 2009. Appellant acknowledges that the Commission may refuse an appeal not filed within twenty days. Murphy v. Dep't of Civil Serv., 155 N.J. Super 491, 493 (App. Div. 1978); accord N.J.S.A. 11:22-38; N.J.S.A. 11A:8-4. Generally, when notice is properly effectuated and a statutory time limitation for filing an administrative appeal is "mandatory and jurisdictional," it may not be extended by the agency or the courts. Mesghali v. Bayside State Prison, 334 N.J. Super. 617, 621 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001).

Relying on In re Donohue, 329 N.J. Super. 488, 495-96 (App. Div. 2000), appellant argues that the time to file an administrative appeal is tolled when an agency fails to resolve previous outstanding issues at the time of the appeal. In Donohue, we did not overrule the Commission to permit an out-of-time appeal of a final notice. Rather, we excused the delay in filing an appeal to us under the unusual circumstances presented. Id. at 495-96.

Appellant argues that his title transfer automatically took place in May 2005 when he completed the police training. He says that he did not appeal the final notice of status timely because he believed the Agreement dictated the proper operative date of his title transfer. Appellant s title did not formally change as a result of the Agreement and graduation from the Police Academy, however, as such a change must be approved by the Commission. N.J.A.C. 4A:4-1.10(a).

Appellant further argues that the Commission exchanged correspondence with his counsel without informing counsel that appellant s time to appeal had passed, and thus, the Commission should be estopped from deciding the matter on that basis. This equitable argument is not in line with the strict enforcement of timeliness required by the cases and statutes cited above nor is it supported by any precedent.

The Commission did comment on appellant s substantive argument, noting that

the appointing authority underscores that Sheriff s Officer positions were targeted in the layoff and if Mr. Tanis was permanent as a Sheriff s Officer at the time of the layoff, he would have been unable to exercise his prior held title right to County Correction Officer and would have been separated from any employment with the Sheriff s Office.

The Sheriff argued to the Commission that prior to a formal change in title, appellant would have had to serve a twelve-month test period. At the end of that twelve-month period, the freeze on lateral transfers was in effect. The Sheriff argued that appellant would not have been transferred until November 21, 2007, under any circumstances, and an earlier transfer would have worked ultimately to appellant s disadvantage. Even if that argument is vulnerable to the counter-argument that the Agreement encompassed an understanding that appellant had already served his twelve-month test period and guaranteed appellant the right to return to his prior title of corrections officer, we affirm the Commission's determination because unquestionably appellant did not file a timely appeal.

Affirmed.