DIANE MALZONE v. STATE OPERATED SCHOOL DISTRICT OF THE CITY OF PATERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DIANE MALZONE,

Petitioner-Appellant,

v.

STATE OPERATED SCHOOL DISTRICT

OF THE CITY OF PATERSON, PASSAIC

COUNTY,

Respondent-Respondent.

_____________________________________

September 12, 2016

Submitted September 6, 2016 Decided

Before Judges Hoffman and Currier.

On appeal from the Department of Education, Docket No. 85-4/12.

Oxfeld Cohen, P.C., attorneys for appellant (Nancy I. Oxfeld, of counsel and on the briefs).

Buglione, Hutton & DeYoe, L.L.C., attorneys for respondent (Richard J. Turano, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent Department of Education (Frederick H. Wu, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Diane Malzone appeals from the March 13, 2015 order affirming the dismissal of her litigation regarding workplace benefits. As we find the decision of the Commissioner of the Department of Education is not arbitrary or capricious, we affirm.

Petitioner filed an appeal in 2012 contesting the classification by respondent, State-Operated School District of the City of Paterson, Passaic County, of days absent from her employment as sick leave, and not absences due to a workplace injury. A hearing was set for July 31, 2014, before an Administrative Law Judge (ALJ) at which time the parties advised they had reached a settlement on the issue. On October 9, 2014, petitioner forwarded an unsigned proposed settlement agreement to respondent who requested that petitioner sign the agreement and it would subsequently be executed by respondent.

No settlement agreement was ever provided to the court and the ALJ issued an order to show cause as to why the matter should not be dismissed, returnable December 29, 2014. On the return date, petitioner's counsel advised the judge that petitioner had misunderstood some of the language in the agreement drafted by her attorney and counsel had not yet explained it to her. The judge gave petitioner until January 10, 2015, to provide the signed settlement agreement, instructing that a failure to do so would result in a dismissal of the case. There was no further communication from petitioner. In response to respondent's request on January 22, 2015, for a dismissal of the matter, the ALJ entered a dismissal with prejudice on January 28, 2015.

The Commissioner of Education reviewed the decision of the ALJ, petitioner's exceptions and respondent's replies, and adopted the ALJ's findings, concurring that dismissal was warranted. In support of his decision, the Commissioner referred to (1) N.J.A.C. 1:1-14.14(a), which permits an ALJ to dismiss an appeal for an unreasonable failure to comply with any of its orders, and (2) authority establishing the grounds for dismissal of an appeal as a result of a petitioner's failure to prosecute the matter. See, e.g., R.D.F. v. Westwood Regional Board of Educ., EDU 3929-98, Commissioner's Decision, (February 4, 1999) http://njlaw.rutgers.edu/collections/oal/html/initial/ edu3929-98.html; R.J. v. Board of Educ. of the Lower Camden County Reg'l Sch., Dist., 97 N.J.A.R.2d 155; N.O. v. Board of Educ. of the Bridgewater-Raritan Sch. Dist., 96 N.J.A.R.2d 746. He concluded: "Petitioner . . . has both failed to adequately prosecute her case, and failed to comply with the ALJ's December 12, 2014 order directing her to show cause why her petition should not be dismissed."

On appeal, petitioner argues there is an enforceable settlement between the parties1 and that a lesser sanction than dismissal of her case is appropriate.

Judicial review of administrative action is limited. In re Herrmann, 192 N.J. 19, 27 (2007). A final agency decision "will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Id. at 27-28. Our role is limited to determining

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) 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.

[Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 25 (1995).]

In applying this standard, we find no basis to disturb the Commissioner's decision to affirm the dismissal of petitioner's case. Over five months had passed between the trial date when the parties advised a settlement had been reached, and the dismissal of the case. As of the date of dismissal, the court-requested settlement agreement had not been provided. It was within the ALJ's authority to dismiss the case for petitioner's failure to both comply with a court order and to prosecute her case. As there was a sufficient factual and legal basis for the Commissioner's decision, we are satisfied his determination was neither arbitrary nor capricious.

Affirmed.

1 This argument was raised for the first time in petitioner's exceptions to the ALJ's decision. In finding the argument meritless, the Commissioner noted the settlement had not been memorialized on the record at any time and the proper forum for the determination of whether a settlement existed was the Superior Court.