The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2061-16T4
IN THE MATTER OF
ROBERTO LOPEZ, JR.,
CITY OF CAMDEN.
_______________________
Argued November 9, 2018 – Decided November 27, 2018
Before Judges Simonelli, Whipple and DeAlmeida.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2015-3244.
Arthur J. Murray argued the cause for appellant
Roberto Lopez, Jr. (Alterman and Associates, LLC,
attorneys; Stuart J. Alterman, of counsel and on the
brief).
Michael J. Watson argued the cause for respondent City
of Camden (Brown & Connery, LLP, attorneys; Ilene
M. Lampitt, Assistant City Attorney, City of Camden,
on the brief).
Pamela N. Ullman, Deputy Attorney General, argued
the cause for respondent Civil Service Commission
(Gurbir S. Grewal, Attorney General, attorney; Melissa
Dutton Schaffer, Assistant Attorney General, of
counsel; Pamela N. Ullman, on the brief).
PER CURIAM
Appellant Roberto Lopez, Jr. appeals from the November 30, 2016 final
administrative action of the Civil Service Commission (Commission), which
denied his request for interim relief and reinstatement to his positon as a
firefighter with the City of Camden (City). We affirm.
I.
Lopez began his employment with the City on February 3, 1997. On
September 4, 2009, he suffered an injury during his regular and assigned duties
that was not caused by any act of willful negligence. On April 1, 2011, he
submitted an application for accidental disability retirement to the Police and
Firemen's Retirement System (PFRS). In his application, he declared he was
incapacitated for further service as a firefighter due to an injury, and stated his
effective date of retirement was June 1, 2011. He also acknowledged that
changing or canceling his retirement date did not guarantee continued
employment with the City. Lopez did not request a leave of absence or any
accommodation pending disposition of his application.
Lopez's application for accidental disability retirement included the Cit y
Employer Certification for Disability Retirement, which indicated that Lopez's
service terminated on April 30, 2011, he received no salary or benefits from the
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City thereafter, and there were no other positions available for him, and he
resigned in good standing on June 30, 2011. The Commission's records
indicated that the City reported Lopez's separation as a resignation in good
standing on June 30, 2011.
On April 9, 2012, the PFRS Board of Trustees (Board) denied Lopez's
application. The Board found Lopez was not totally and permanently disabled
from the performance of his regular and assigned job duties, and not physically
or mentally incapacitated from the performance of his usual or other duties the
City was willing to offer.
Lopez appealed the Board's decision, and the matter was transferred to the
Office of Administrative Law (OAL) for a hearing as a contested case.
Following a hearing, in a January 17, 2014 initial decision, an administrative
law judge (ALJ) found Lopez was not eligible for accidental or regular disability
retirement because he was not permanently and totally disabled from the
performance of the duties of a firefighter. On February 10, 2014, the Board
adopted the ALJ's initial decision.
On June 30, 2014, Lopez submitted an application to the City requesting
reemployment as a firefighter. On his application, he indicated that June 30,
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3
2011 was his "date of resignation." On July 23, 2014, the City denied Lopez's
application.
Nearly a year later, on June 15, 2015, Lopez submitted a request to the
Commission pursuant to N.J.A.C. 4A:2-1.2 for interim relief and immediate
reinstatement as a firefighter. Lopez claimed he did not resign from his position;
rather, the City "merely took him off active duty while he pursued his pension
application." He also claimed the City terminated him without notice or an
opportunity for a hearing, and asked the Commission to consider his request as
a "challenge/appeal of his de facto/constructive termination."
In its November 30, 2016 final administrative action, the Commission first
concluded the request for interim relief was procedurally deficient under
N.J.A.C. 4A:2-1.2(a),1 as there was no pending appeal in which the Commission
could grant interim relief.
The Commission next concluded that even if Lopez had been removed
from employment or terminated, his appeal was untimely under N.J.S.A. 11A:2-
1
N.J.A.C. 4A:2-1.2(a) provides: "Upon the filing of an appeal, a party to the
appeal may petition the . . . Commission for a stay or other relief pending final
decision of the matter."
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4
15,2 N.J.A.C. 4A:2-1.1(b),3 and N.J.A.C. 4A:2-2.13(d).4 The Commission found
that Lopez was separated from his employment in June 2011, and did not seek
relief from the Commission until June 2015. The Commission further
determined that, even affording Lopez the greatest latitude, he knew in July 2014
2
N.J.S.A. 11A:2-15 provides as follows:
Any appeal from adverse actions specified in [N.J.S.A.]
11A:2-13 and [N.J.S.A.11A:2-6[(a)(4)] shall be made
in writing to the Civil Service Commission no later than
[twenty] days from receipt of the final written
determination of the appointing authority. If the
appointing authority fails to provide a written
determination, an appeal may be made directly to the
Civil Service Commission within reasonable time.
3
N.J.A.C. 4A:2-1.1(b) provides: "Unless a different time period is stated, an
appeal must be filed within [twenty] days after either the appellant has notice or
should reasonably have known of the decision, situation, or action being
appealed.
4
N.J.A.C. 4A:2-2.13(d) which provides, in pertinent part:
The officer or firefighter shall have [twenty] days from
the date of receipt of the Final Notice [of Disciplinary
Action] to appeal the removal. Receipt of the Final
Notice on a different date by the appellant's attorney or
negotiations representative shall not affect this appeal
period. If the appellant does not receive the Final
Notice as required by [N.J.A.C. 4A:2-2.13(c)], he or
she shall file an appeal of removal within a reasonable
time.
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5
that the City would not reemploy him, but did not file an appeal with the
Commission until almost one year later. The Commission determined that
Lopez's efforts to obtain an accidental disability retirement and reemployment
did not "provide good cause to relax the regulatory time frames, since clearly
[Lopez] knew he was not at work beginning in June 2011 and filing an appeal
four years later is not within a reasonable time."
The Commission determined that even if Lopez was considered removed
from his employment rather than having resigned, his separation would be a
disciplinary action under N.J.S.A. 11A:2-13 and N.J.S.A. 11A:2-6(a)(1). Thus,
N.J.S.A. 11A:2-15 required him to file an appeal in writing no later than twenty
days from receipt of the City's final written determination or within a reasonable
time if no determination was received. The Commission concluded: "Again,
allowing the latest date of July 2014 for [Lopez] to realize that his separation
was permanent, an appeal one year later is not within a reasonable time."
Lastly, the Commission found that, even assuming Lopez timely filed an
appeal, the record confirmed he resigned from his position, effective June 30,
2011, and did not file an appeal from that resignation within twenty days, as
required by N.J.A.C. 4A:2-1.1. The Commission found the City accepted
Lopez's separation as a resignation and was not required to rescind that
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acceptance and reemploy Lopez. The Commission concluded it lacked
jurisdiction to review Lopez's request for reemployment.
II.
On appeal, Lopez contends the Commission's conclusion that his request
was untimely was arbitrary, capricious, and unreasonable. He argues he had no
notice of his termination from employment or an opportunity for a hearing. He
also argues he did not resign when he applied for accidental disability retirement
and was unaware of the City's refusal to reemploy him during the pendency of
his accidental disability retirement application.5
Our role in reviewing an agency's decision is limited. In re Stallworth,
208 N.J. 182, 194 (2011). "[A] 'strong presumption of reasonableness attaches
to [an agency decision].'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div.
2001) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993)). "In order
to reverse an agency's judgment, [we] must find the agency's decision to be
5
We decline to address Lopez's additional arguments that post-July 23, 2014
attempts to resolve the issue of reemployment indicated the issue was
unresolved and required adjudication as a contested case, and he was entitled to
restoration of his employment because the Board found he was not totally and
permanently disabled. Lopez did not raise these issues before the Commission
and they are not jurisdictional in nature nor do they substantially implicate the
public interest. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (citation
omitted). In any event, the record does not support Lopez's argument that there
were post-July 23, 2014 attempts to resolve the issue of reemployment.
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'arbitrary, capricious, or unreasonable, or [] not supported by substantial
credible evidence in the record as a whole.'" Stallworth, 208 N.J. at 194 (second
alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-
80 (1980)); In re Proposed Quest Acad. Charter Sch. of Montclair Founders
Grp., 216 N.J. 370, 385 (2013).
As the Court has instructed:
In determining whether agency action is arbitrary,
capricious, or unreasonable, a reviewing court must
examine:
(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.
[Stallworth, 208 N.J. at 194 (quoting In re Carter, 191
N.J. 474, 482-83 (2007)).]
We "may not substitute [our] own judgment for the agency's, even though
[we] might have reached a different result." Ibid. (quoting Carter, 191 N.J. at
483). "This is particularly true when the issue under review is directed to the
agency's special 'expertise and superior knowledge of a particular field.'" Id. at
195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)). Furthermore, "[i]t is
A-2061-16T4
8
settled that '[a]n administrative agency's interpretation of statutes and
regulations within its implementing and enforcing responsibility is ordinarily
entitled to our deference.'" E.S v. Div. of Med. Assistance & Health Servs., 412
N.J. Super. 340, 355 (App. Div. 2010) (second alteration in original) (quoting
Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001)).
"Nevertheless, 'we are not bound by the agency's legal opinions.'" A.B. v. Div.
of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div. 2009)
(quoting Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div.
2001)). "Statutory and regulatory construction is a purely legal issue subject to
de novo review." Ibid. (citation omitted).
The burden of proving that an agency action is arbitrary, capricious, or
unreasonable is on the challenger. See Bueno v. Bd. of Trs., Teachers' Pension
and Annuity Fund, 422 N.J. Super. 227, 234 (App. Div. 2011) (citing McGowan
v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002)).
Applying the above standards, we discern no reason to reverse the
Commission's decision. On July 23, 2014, Lopez received a final written
determination from the City that it would not reemploy him. Assuming this
constituted a removal from employment, Lopez had twenty days from that date
to file an appeal. See N.J.S.A. 11A:2-15; N.J.A.C. 4A:2-1.1(b); N.J.A.C. 4A:2-
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2.13(d). The statutory twenty-day requirement to appeal is mandatory and
jurisdictional, and the Commission has no authority to extend the time limit or
accept an untimely appeal. Mesghali v. Bayside State Prison, 334 N.J. Super.
617, 621 (App. Div. 2000). Accordingly, the Commission properly dismissed
Lopez's request for interim relief as untimely.
The Commission also correctly found that Lopez resigned, effective June
30, 2011, and his appeal from his resignation was untimely under N.J.A.C. 4A:2-
1.1. See N.J.A.C. 4A:2-6.1(d) (providing that an employee may appeal his
resignation to the Commission under N.J.A.C. 4A:2-1.1). Although Lopez never
submitted a formal letter of resignation and the City did not issue a formal
confirmation of his resignation, we are satisfied the record as a whole confirms
he resigned on June 30, 2011, and the City accepted his resignation.
Affirmed.
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