Steven Ramzi, CSC Docket No. 2020-1017

BackgroundSteven Ramzi, a Police Officer with Weehawken Township, Department of Public Safety, represented by Jeffrey S. Ziegelheim, Esq., requests reconsideration of the attached decision by the Director, Division of Appeals and Regulatory Affairs, rendered on September 16, 2019, denying his request for a hearing regarding his removal.

By way of background, the appointing authority issued a Final Notice of Disciplinary Action (FNDA) dated January 16, 2019 to Ramzi, imposing removal. The FNDA was sent certified and regular mail. Ramzi's attorney filed an appeal regarding the appellant’s removal which was postmarked August 15, 2019. His request for a hearing was denied by the Director of the Division of Appeals and Regulatory Affairs on September 16, 2019, since the appeal was not perfected within the 20-day time frame. See N.J.S.A. 11A:2-15.

Appellant's argumentIn his petition for reconsideration, the appellant’s attorney submits documentation including certifications from himself and Anthony Berinato, a paralegal employed by the attorney’s law office. Ziegelheim states, in pertinent part, that Ramzi texted him a copy of his FNDA on January 23, 2019, stating that he received it at home the night before on January 22, 2019. Berinato states, in pertinent part, that at the direction of Ziegelheim, an appeal letter “was sent Certified Mail, Return Receipt Requested,” to both the Civil Service Commission (Commission) and the Office of Administrative Law (OAL), on February 11, 2019. The copy of that letter he includes with his certification states “VIA CERTIFIED MAIL” (see attached). He indicates that Ziegelheim asked him to track the certified mail receipt to ensure the letter was delivered. At this time, he discovered that the boxes containing Ramzi’s documents had been damaged and the receipts could not be located due to the office relocating. He also states that on August 12, 2019, he spoke to staff in this agency who indicated that they did have the February 11, 2019 appeal letter but still needed the $20 appeal fee, and he was also asked to resubmit all documents. He then resubmitted the appeal letter on August 20, 2019. As evidence, he attaches to his certification the letter he claims he resubmitted, dated February 11, 2019, clearly indicating “VIA REGULAR MAIL’ and containing his handwritten notation “re-sent on 8/20/19 — AJB”! (see attached). Finally, he states that upon Ziegelheim’s completion of the appeal form, he sent the information and check to the Commission on August 28, 2019.

In response, the appointing authority, represented by David F. Corrigan, Esq., argues that N.J.A.C. 4A:2-2.8(b) states that if the appointing authority fails to provide the employee with a Final Notice of Disciplinary Action, an appeal may be made directly to the Commission within a reasonable time. He also noted that pursuant to N.J.A.C. 4A:2-2.8(a), receipt of the Final Notice on a different date by the employee’s attorney or representative shall not affect the appeal period. Corrigan certifies that he did not receive anything from Ziegelheim relative to this case until he filed the motion for reconsideration and maintains that since Ramzi’s appeal was untimely, his request for a hearing should be denied.

In reply to Corrigan’s submission, Ziegelheim states that Ramzi did not receive the FNDA until late on January 22, 2019, and the appeal needed to be postmarked by February 12, 2019.

BackgroundIt is noted that neither the Commission nor the OAL has record of receiving the purported appeal filed on February 11, 2019, until it was included with the filing postmarked August 15, 2019. Moreover, the original copy of the February 11, 2019 letter received by the Commission in the submission postmarked August 15, 2019, indicates “VIA REGULAR MAIL” (see attached letter with original docket number? written by Commission Staff and postmarked envelope).

CONCLUSION

RuleN.J.A.C. 4A:2-1.6(b) sets forth the standards by which the Commission may reconsider a prior decision. This rule provides that a party must show that a clear material error has occurred, or present new evidence or additional information not presented at the original proceeding which would change the outcome of the case and the reasons that such evidence was not presented at the original proceeding. N.J.S.A. 11A:2-15 provides that any appeal from adverse actions specified in N.J.S.A. 11A:2-13 shall be made in writing to the Commission no later than 20 days from receipt of the final written determination of the appointing authority. See also, N.d.A.C. 4A:2-2.8(a).

Analysis1 It is unclear as to whether the initials are AJB or ASB. 2 It is noted that the Director's September 19, 2019 decision indicates an incorrect original docket number. The actual docket number of the initial appeal was 2020-534. It is also noted that any appeal with a docket number starting with “2020” would have been received no earlier than July 1, 2019. In this regard, the year designation for Commission appeals indicates the fiscal year received, which, for the State of New Jersey, begins on July 1 of each year.

The record reflects that Ramzi admittedly received the FNDA on January 22, 2019, and his letter of appeal was received by the Commission was postmarked August 15, 2019. In his certification, Berinato states that he mailed the letter of appeal via certified mail on February 11, 2019. Neither the Commission nor the OAL received this letter until August 2019. In failing to produce the certified mail receipts for those letters, Berinato presents that the boxes containing Ramzi's documents had been damaged and the receipts for the certified mailing could not be located due to the office relocating.

However, for the reasons set forth below, the Commission is unpersuaded. In his certification, Berinato provides two copies of the appeal letter he purportedly sent dated February 11, 2019 via certified mail. The first copy of that letter clearly states, “VIA CERTIFIED MAIL” and is the copy that Berinato indicates in his certification that he sent in February 2019. As stated previously, neither this agency nor OAL received that appeal at that time. Regardless, with Berinato’s explanation above regarding the issues with the receipt, the Commission would normally be persuaded that the appeals were originally sent as indicated in February 2019 and both copies were inexplicably not received by it or OAL or returned to the sender. However, there is evidence in the record belying these assertions. Namely, with the appeal filed on August 15, 2019, the copy of the same purported letter sent in February 2019 clearly states “VIA REGULAR MAIL.” Moreover, the second copy of the letter Berinato presents in his certification which he allegedly sent in February 2019 and resent in August 2019 with his written notation also clearly states “VIA REGULAR MAIL.” Moreover, while Berinato indicates that he spoke with Commission staff on August 12, 2019, who indicated that they had the February 11, 2019 letter, the date that conversation happened is unlikely to have been that date. As stated previously, there is no record of the Commission receiving the February 11, 2019 letter prior to its submission with the appeal postmarked August 15, 2019. More likely is that Berinato either spoke with staff on that date but was not told that staff had the February 11, 2019 appeal, or the conversation actually occurred after the appeal was received sometime after August 15, 2019. In this regard, the required $20 appeal fee was not included with that submission and was subsequently sent, in an envelope postmarked September 4, 2019 (contrary to the August 28, 2019 date indicated by Berinato - see attached postmarked envelope).

Given these conflicts, the only logical and reasonable conclusion is that the original letters were either sent via regular mail and lost in transit to the Commission and OAL, or more likely, that the original letters were never sent in February.” In this regard, based on Berinato’s representation, which has been sufficiently rebutted above, that they were originally sent via certified mail, along with what appears now to be non-authentic copies of the February 11, 2019 letter inscribed “VIA CERTIFIED MAIL,” the Commission can only conclude the letter was never actually sent in February. While it is Ramzi who is the unfortunate party in this matter, there is no way for the Commission to deem his August 15, 2019 appeal timely. In this regard, the statutory time frame for such an appeal under N.J.S.A. 11A:2-15 is jurisdictional and cannot be relaxed. See Borough of Park Ridge v. Salimone, 21 N.J. 28, 46 (1956); See also, Mesghali v. Bayside State Prison, 334 N.J. Super. 617 (App. Div. 2000), cert. denied, 167 N.J. 680 (2001); Murphy v. Department of Civil Service, 155 N.J. Super. 491, 493 (App. Div. 1978). Further, N.J.A.C. 4A;2-2,8(a) states, in pertinent part, that “[aJn appeal from a Final Notice of Disciplinary Action must be filed within 20 days of receipt of the Notice by the employee.” As Ramzi received the FNDA on January 22, 2019, his appeal postmarked August 15, 2019 is untimely.

ORDER

Therefore, it is ordered that this request be denied.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.