Opinion
DOCKET NO. A-5011-11T3
09-06-2013
IN THE MATTER OF THOMAS SWEENEY, CITY OF HOBOKEN
C. Elston & Associates, LLC, attorney for appellant Thomas Sweeney (Catherine M. Elston, on the brief). Florio Perrucci Steinhardt & Fader, L.L.C., attorneys for respondent City of Hoboken (J. Andrew Kinsey, of counsel; Veronica P. Hallett, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Fasciale.
On appeal from the Civil Service Commission, CSC Docket No. 2012-1170.
C. Elston & Associates, LLC, attorney for appellant Thomas Sweeney (Catherine M. Elston, on the brief).
Florio Perrucci Steinhardt & Fader, L.L.C., attorneys for respondent City of Hoboken (J. Andrew Kinsey, of counsel; Veronica P. Hallett, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Thomas Sweeney, a City of Hoboken laborer who was removed from his public employment on October 29, 2010, appeals from (1) the January 11, 2012 final determination of the Civil Service Commission (the Commission) denying his request for a hearing of his appeal of the removal, and (2) the May 3, 2012 request for reconsideration. We affirm.
On November 5, 2010, Sweeney was served with an amended preliminary notice of disciplinary action charging him with several violations of N.J.A.C. 4A:2-2.3(a), including incompetency, inefficiency, or failure to perform duties; inability to perform duties; conduct unbecoming a public employee; and misuse of public property, including a motor vehicle. The notice accused Sweeney of being under the influence of an intoxicant while working at a city event on October 29, 2010.
Through his attorney, Sweeney waived a departmental disciplinary hearing. Accordingly, on December 17, 2010, the City served a final notice of disciplinary action on the attorney and Sweeney's union representative, which removed Sweeney from his municipal position effective October 29, 2010.
On September 21, 2011, Sweeney filed a major disciplinary appeal form with the Commission for the first time. In his cover letter to the Commission, Sweeney averred that it was his understanding that "union counsel" would be filing a timely direct appeal with the Office of Administrative Law. He wrote, "I was told . . . by my union representatives that my appeal was filed," but, in fact, Sweeney learned in September 2011 that no such appeal had been filed on his behalf from his removal as a City laborer. Sweeney contends that his union misled him into believing that a timely appeal had been filed, and when he became dissatisfied with the union's responses, he engaged the service of a different attorney to prosecute his appeal.
The Commission rejected Sweeney's appeal, notwithstanding his claim that he had never been personally served with the City's final notice of disciplinary action. The Commission rejected Sweeney's contentions on the ground that N.J.S.A. 11A:2-15's twenty-day appeal-filing-period "is jurisdictional and cannot be relaxed or waived." It further relied upon N.J.A.C. 4A:2-2.8(a), and cited Borough of Park Ridge v. Salimone, 21 N.J. 28, 46 (1956); Mesghali v. Bayside State Prison, 334 N.J. Super. 617, 621 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001); and Murphy v. Department of Civil Service, 155 N.J. Super. 491, 493 (App. Div. 1978), in support of its denial of an appeal hearing.
The Commission rejected Sweeney's application for reconsideration, which was largely devoted to Sweeney's claim that the City's failure to personally serve him with a final notice of disciplinary action tolled his time for an appeal. The Commission noted that Sweeney "was clearly aware of his termination effective October 29, 2010[,] and was under the impression that his former union-assigned counsel filed an appeal on his behalf." Furthermore, it observed,
[Sweeney] provides no explanation as to why he did not attempt to file his appeal directly with the Commission after he determined by the end of June 2011 that his former union counsel did not file an appeal on his behalf. The filing of his appeal with the Commission almost three months after he became aware that an appeal was not filed on his behalf would not be considered a reasonable time to file his appeal in accordance with N.J.S.A. 11A:2-15 and N.J.A.C. 4A:2-2.8. Accordingly, the Commission finds that the appellant has not established timeliness of his appeal and his request for a hearing was properly denied.
We are in substantial agreement with the Commission's stated reasons for rejecting the appeal. Its determinations were not arbitrary, capricious, or unreasonable. See In re Stallworth, 208 N.J. 182, 194 (2011).
We reject as wholly without merit Sweeney's claim that the lack of personal service upon him of the final notice of disciplinary action excuses his untimely appeal. R. 2:11-3(e)(1)(E). Sweeney knew in early November 2010 that his job had ended. Furthermore, his belief (albeit erroneous) that an appeal, in fact, had been filed on his behalf obviates any putative effect of the non-personal service of the final notice of disciplinary action. Whether Sweeney was personally served or not is irrelevant to the lack of filing a timely appeal on his behalf.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION