Sam Schulman, CSC Docket No. 2020-1681

Appellant's argumentSam Schulman, a former Truck Driver, Heavy with Lakewood Township, requests reconsideration of the attached decision of the Civil Service Commission (Commission) rendered on May 3, 2017, denying his appeal of his resignation in good standing effective February 9, 2016.

BackgroundBy way of background, the petitioner appealed to the Commission, contending that he did not resign his position with Lakewood Township, nor was he served with disciplinary notices for his separation from employment. The appointing authority maintained that the petitioner verbally resigned during a meeting in which his union representatives were present and when he was to be served with two suspension notices. The meeting was held on February 3, 2016. Upon review, the Commission found that the petitioner’s appeal was not filed within the requisite 20-day period. See N.J.A.C. 4A:2-6.1(d) and N.J.A.C. 4A:2- 1.1(b). In that regard, the petitioner had argued that his appeal was filed within 20 days of the March 11, 2016 “formal notice” from the appointing authority as to the cessation of his employment. However, the Commission found that the petitioner received a February 3, 2016 letter from the appointing authority indicating his resignation on February 3, 2016. At that point, the petitioner should reasonably have known that the appointing authority accepted a resignation from him. Additionally, the Commission did not find a basis to extend or relax the time for appeal. Further, the Commission stated that even if the petitioner was considered removed from employment rather than resigned, the statutory provisions could not be relaxed as such appeals must be filed no later than 20 days from receipt of the final written determination of the appointing authority or within a reasonable time if no determination is received. Nonetheless, even if petitioner filed a timely appeal, the Commission did not find convincing evidence that he did not intend to resign. Apart from his own certification, there was no other sworn statement to corroborate his version of what occurred. The statement from the union member who was present at the meeting was not sworn. In contrast, the Assistant Director of Public Works and the Assistant Public Works Superintendent certified to the petitioner’s verbal resignation. Additionally, the Commission noted that once a resignation is accepted, an appointing authority is under no obligation to rescind the resignation. Further, it indicated that the pursuit of disciplinary action cannot constitute duress unless an appointing authority pursued its legal right in an oppressive manner or purely as a means to extort a settlement. In this case, the appointing authority was not attempting to remove the petitioner from employment. Rather, the proposed penalties were 10 and 30 working day suspensions. Therefore, the record did not demonstrate that the appointing authority’s actions were so oppressive that the petitioner was deprived of his free will. Accordingly, the Commission dismissed the petitioner’s appeal as untimely. See In the Matter of Sam Schulman (CSC, decided May 3, 2017).

Appellant's argumentIn a letter postmarked December 26, 2019, the petitioner requested reconsideration of the Commission’s prior decision. He initially noted that his representatives “did not do their jobs” and were not working in his best interests, as he was denied his appeal “due to process technicalities, not the merit of [his] filing.” The petitioner explained the circumstances of his alleged resignation in good standing and maintained that it was “quite obvious that I did not resign if I was attempting to return to work.” Moreover, with regard to the untimely appeal filing, the petitioner asserted that “nothing was being done” on his behalf although he was being assured that his union was “fighting” for him. The petitioner alleged that he was never advised of his right to file an appeal for himself. Had he been told, he would have filed a timely appeal. The appellant concluded that in the 16 years he had worked in Lakewood Township, he “never had a blemish” in his file and he was “targeted and lied to in order to push [him] out , , , for what [he] can only assume was a personal vendetta.” He requested that the Commission grant hm reconsideration. In support, the petitioner submitted documentation relating to his appeal and an affidavit maintaining that he did not resign, only that he said in the meeting that he was “thinking about coming into [the Acting Director’s] office and giving [him] two weeks’ notice.” The petitioner also presented the certification of his shop steward, who stated that the petitioner only “mentioned” that he was going to submit his resignation but that the Acting Director needed two weeks’ notice. Furthermore, the petitioner indicated that he did not hear anything from his union regarding his appeal. Rather, the petitioner’s co-worker informed him on or about May 18, 2017 that he lost his appeal.1

1 The petitioner also submitted a decision from the Public Employment Relations Commission (PERC) issued on November 26, 2019, which dismissed an unfair practice charge relating to the

CONCLUSION

RuleN.J.A.C. 4A:2-1.6(a) states that within 45 days of receipt of a decision, a party to the appeal may petition the Commission for reconsideration. Moreover, N.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.

AnalysisIn the instant matter, the petitioner’s request for reconsideration is clearly out of time as was his initial appeal of his separation from employment. The Commission’s prior decision was rendered on May 3, 2017 and issued on May 8, 2017. The petitioner indicated that he was aware of this decision on or about May 18, 2017 but filed his request for reconsideration over two and a half years later by letter postmarked December 26, 2019. He has provided absolutely no reason for the delay, and thus, there is no basis to relax the time period for appeal pursuant to N.J.A.C. 4A:1-1.2(c) (the Commission has the discretionary authority to relax rules for good cause).2 Consequently, the petitioner’s delay in asserting his right to request reconsideration is not reasonable or excusable. Appeal of Syby, 66 N.J. Super. 460, 464 (App. Div. 1961) (construing “good cause” in appellate court rules governing the time for appeal); Atlantic City v. Civil Service Com’n, 3 N.J. Super. 57, 60 (App. Div. 1949) (describing the circumstances under which delay in asserting rights may be excusable); Lavin v. Hackensack Bd. of Educ., 90 N.J. 145 (1982) (among the factors to be considered are the length of delay and the reasons for the delay). See also Matter of Allen, 262 N.J. Super. 438 (App. Div. 1993) (allowing relaxation of the appeal rules where police officer repeatedly, but unsuccessfully, sought clarification of his employment status).

It is emphasized that appointing authorities have a reasonable and legitimate expectation of the validity and finality of Commission decisions. See In the Matter of Louis P. Toscano (CSC, decided February 16, 2011) (since Commission determined that the appellant’s appeal of his resignation in good standing was out of time as it was pursued more than 20 years after his resignation, to reevaluate or invalidate the terms of the resignation would be unfair to all parties involved in that transaction). The purpose of time limitations is not to eliminate or curtail the rights of appellants, but to establish a threshold of finality. In the instant case, the delay in filing the request for reconsideration unreasonably exceeds that threshold of finality.

petitioner’s separation from employment. As the Commission has no jurisdiction on PERC matters, no review of that determination will be conducted. 2 It is noted that the Commission’s prior decision indicated that a copy of the decision was sent to the petitioner. In his request for reconsideration, the petitioner submits a copy of the decision.

Furthermore, the petitioner has not met the standard for reconsideration of the prior decision. Reliance on the union or an attorney to file a timely appeal has not been deemed a sufficient excuse to accept a late appeal. See in the Matter of Annemarie Krusznis (MSB, decided May 18, 2005) (the appellant’s reliance on her attorney to file a timely good faith appeal of her layoff did not provide a basis to grant relief when the attorney never filed the appeal and appellant subsequently filed an untimely appeal). See In the Matter of George Phillips, Docket No. A-2296- 02T2 (App. Div. April 6, 2004) (notwithstanding the appellant’s contention that he and his counsel were misled by the union to believe that an appeal had been filed, the Appellate Division affirmed the decision denying the appellant’s appeal of his removal as untimely since it was filed beyond the 20 day filing period). Furthermore, the Commission previously indicated that had the petitioner filed a timely appeal, there was no basis to void his resignation. The arguments the petitioner presents in his request for reconsideration in that regard are not sufficiently persuasive to overcome the inordinate delay in filing his petition. Accordingly, under the circumstances presented, the Commission finds no grounds on which to grant reconsideration of its prior decision.

ORDER

Therefore, it is ordered that this request for reconsideration be denied.

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