Shreekk Crawford, CSC Docket No. 2023-1566

BackgroundShreekk Crawford, a County Correctional Police Lieutenant with Essex County, Department of Public Safety and Corrections, represented by Zinovia H. Stone, Esq., petitions the Civil Service Commission (Commission) for reconsideration of the final administrative decision, rendered on January 10, 2023, in which the Director of the Division of Appeals and Regulatory Affairs denied his request for a hearing with respect to his 20 working day suspension.

By way of background, in a November 4, 2022 Final Notice of Disciplinary Action (FNDA), the petitioner was suspended for 20 working days on various charges. The record indicates that the FNDA was sent by certified mail on November 22, 2022. The tracking record of the certified mail shows delivery was made on November 28, 2022. By letter postmarked December 29, 2022, the petitioner submitted an appeal to the Commission. The appeal is dated December 16, 2022 and a check dated December 29, 2022 for the appeal fee was included with the appeal. However, since the petitioner did not submit his appeal within 20 days of receipt of the FNDA, December 19, 2022, the request for a hearing was denied.

Appellant's argumentIn his request for reconsideration, the petitioner maintains that his appeal had been mailed on December 16, 2022 and presents certifications from his attorney, Stone, and Anthony Caruso, Jr., who is employed in the mailroom of Stone’s firm and is in charge of mailings. Stone states, in pertinent part:

On December 16, 2022, I drafted a Major Disciplinary Appeal Form with respect to [an FNDA] dated November 4, 2022.

...

BackgroundOn December 16, 2022, I caused to be mailed the requisite Major

Disciplinary Appeal Form to the Civil Service Commission. This was accomplished by giving the completed filing to my staff members who were in charge of mailings.

...

My staff members mailed the Major Disciplinary Appeal Form . . . to the

Civil Service Commission.

...

To date, we have not received any returned mail from the post office containing the Major Disciplinary Appeal Form. The mail was sent via certified and regular mail.

Caruso states, in pertinent part:

On December 16, 2022, I received documents dated December 16, 2022 pertaining to an appeal for [the petitioner]. One of the documents was a Major Disciplinary Appeal Form. I made the appropriate copies, placed the documents in envelopes addressed to the Civil Service

Commission, affixed the appropriate postage, and placed the envelopes in the mail.

Appellant's argumentThe petitioner maintains that the December 29, 2022 mailing was merely a follow-up mailing because he had not received confirmation of docketing.

Appointing authority's argumentIn response, the appointing authority, represented by Jeanne-Marie Scollo, Assistant County Counsel, states that the certifications provided have the “potential” to change the outcome of the case but argues that the petitioner has not supplied several items that should have been included in support of the certifications. Specifically, the appointing authority notes that the petitioner did not provide the following: the certified mail receipt indicating the tracking number for the purported December 16, 2022 mailing; a copy of the check paying the appeal fee that would have been included with the purported December 16, 2022 mailing; and a cover letter to this agency dated December 29, 2022 specifying that the enclosed appeal dated December 16, 2022 was being provided a second time to confirm docketing. The appointing authority adds that while the petitioner provided a courtesy copy of his appeal via e-mail on December 29, 2022, it did not receive any such e-mail on December 16, 2022. In support, the appointing authority provides a copy of the referenced December 29, 2022 e-mail.

It is noted that the petitioner did not reply.

CONCLUSION

RuleN.J.A.C. 4A:2-1.6(b) sets forth the standards by which a prior decision may be reconsidered. 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. A review of the record in the instant matter reveals that reconsideration is not justified.

N.J.S.A. 11A:2-15 provides that appeals from major disciplinary matters be made in writing to the Commission no later than 20 days from receipt of the final written determination of the appointing authority. This 20-day time limitation is jurisdictional and cannot be relaxed or waived. 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. 630 (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 that “An appeal from a Final Notice of Disciplinary Action must be filed within 20 days of receipt of the Notice by the employee. Receipt of the Notice on a different date by the employee’s attorney or union representative shall not affect this appeal period.”

AnalysisIn this matter, the petitioner received the FNDA on November 28, 2022. Thus, his appeal had to be postmarked no later than December 19, 2022 to meet the 20-day filing requirement. The petitioner maintains on reconsideration that the appeal was mailed December 16, 2022. However, a careful reading of the certifications provided do not persuasively support that claim. Stone states that she drafted the appeal on December 16, 2022. She also states that she “caused [the appeal] to be mailed” on December 16, 2022 to this agency and that this was “accomplished by giving the completed filing to my staff members who were in charge of mailings.” However, handing the appeal filing off to firm mailroom staff is not the same as delivering the filing into the care of the postal service. Caruso’s certification too does not persuasively support the petitioner’s claim. As indicated previously, Caruso states, in pertinent part:

On December 16, 2022, I received documents dated December 16, 2022 pertaining to an appeal for [the petitioner]. One of the documents was a Major Disciplinary Appeal Form. I made the appropriate copies, placed the documents in envelopes addressed to the Civil Service

Commission, affixed the appropriate postage, and placed the envelopes in the mail.

He clearly states in one sentence that he received the appeal on December 16, 2022. In another sentence, he states that he “made the appropriate copies, placed the documents in envelopes addressed to the Civil Service Commission, affixed the appropriate postage, and placed the envelopes in the mail.” However, Caruso is not explicitly certifying in the latter sentence that the mentioned events also occurred on December 16, 2022. The best that can be said of Caruso’s certification, then, is that it is equivocal on whether mailing occurred on December 16, 2022. An equivocal certification cannot assist the petitioner in meeting his burden of proof in this matter.

Additionally, the appointing authority raises valid unrebutted concerns that further undermine the petitioner’s claim of a December 16, 2022 mailing. In this regard, while the petitioner claims that the purported December 16, 2022 mailing was sent via certified mail, he provides no corresponding certified mail tracking information. The check for the appeal fee is dated December 29, 2022, not on or about December 16, 2022. The petitioner did not include a cover letter or other communication with the December 29, 2022 mailing explaining that it was a second or follow-up mailing or otherwise explaining the 13-day gap between the date on the appeal and the postmark date. And while the petitioner e-mailed a courtesy copy of the appeal to the appointing authority on December 29, 2022, he apparently did not do so on December 16, 2022.

Thus, while it is plausible based on the foregoing that the appeal was drafted on December 16, 2022, the totality of the record does not support a finding that it was also mailed and postmarked that day or prior to December 19, 2022. Under these circumstances, the petitioner did not meet the 20-day filing requirement, and he has not presented a basis to grant a hearing. Accordingly, the petitioner has not met the standard for reconsideration.

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.