IN THE MATTER OF JEFFERSON NAH, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0356-18T1
IN THE MATTER OF
JEFFERSON NAH, OFFICE
OF THE PUBLIC DEFENDER.
Submitted December 10, 2019 – Decided December 27, 2019
Before Judges Accurso and Gilson.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2018-3224.
Weissman & Mintz, LLC, attorneys for appellant
Jefferson Nah (Penelope A. Scudder, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Civil Service Commission (Donna Sue
Arons, Assistant Attorney General, of counsel; Debra
Allen, Deputy Attorney General, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Office of the Public Defender, join in the
brief of respondent Civil Service Commission.
PER CURIAM
Petitioner Jefferson Nah appeals from a final decision of the Civil
Service Commission that he was ineligible for Supplemental Compensation on
Retirement (SCOR) benefits. Finding no error, we affirm.
The facts are undisputed and easily summarized. Nah was a clerk driver
with the Office of the Public Defender. In June 2017, the Public Defender
issued a preliminary notice of disciplinary action suspending Nah for forty-five
days, and five months later issued a second such notice seeking his removal.
At the Loudermill 1 hearing, where Nah was represented by the president of his
local union, the parties entered into a settlement agreement in which Nah
agreed to resign and never again seek employment with the Public Defender in
return for the Public Defender withdrawing its two disciplinary notices and
permitting Nah to resign in good standing pursuant to N.J.A.C. 4A:2-6.1.
Following his retirement in accordance with the parties' agreement, Civil
Service denied petitioner SCOR benefits pursuant to N.J.A.C. 4A:6-3.1(b)(1),
which denies eligibility to "[e]mployees removed for cause after an
1
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985), in which the
Supreme Court held that a tenured public employee facing termination "is
entitled to oral or written notice of the charges against him, an explanation of
the employer's evidence, and an opportunity to present his side of the story."
Id. at 546.
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opportunity for a hearing, who retire in lieu of removal, or who retire under
circumstances which would warrant removal."
Petitioner filed an agency appeal, arguing the denial was erroneous
because he "was not removed for cause, nor did he retire in lieu of removal."
Instead, petitioner contended he "resigned in good standing and retired in lieu
of pursuing the disciplinary grievance process." The Commission rejected that
argument, finding the circumstances of Nah's retirement, as set out in the
parties' settlement agreement, made clear beyond doubt that Nah retired in lieu
of the discipline the Public Defender was pursuing, that is, removal, and he
was thus ineligible for SCOR benefits under N.J.A.C. 4A:6-3.1(b)(1).
Petitioner appeals, reprising his arguments to the Commission, which we
reject as without sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E). We extend substantial deference to an agency's interpretation
of its own regulations, reasoning that "the agency that drafted and promulgated
the rule should know the meaning of that rule." In re Freshwater Wetlands
Gen. Permit No. 16, 379 N.J. Super. 331, 341-42 (App. Div. 2005) (quoting
Essex Cty. Bd. of Taxation v. Twp. of Caldwell, 21 N.J. Tax 188, 197 (App.
Div. 2003)).
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That deference is warranted here. Nah was under suspension and facing
removal when he appeared for a Loudermill pre-termination hearing. Instead
of proceeding with the hearing, where the appointing authority was
presumably prepared to provide Nah, not only notice of the charge, but an
explanation of the evidence it had against him, see Caldwell v. N.J. Dep't of
Corr., 250 N.J. Super. 592, 615 (App. Div. 1991), Nah negotiated an
agreement that he would resign and never again seek employment by the
Public Defender. We have no hesitation in holding the Commission's
determination that Nah was ineligible for SCOR benefits under those
circumstances was a reasonable interpretation of its own rule that "[e]mployees
. . . who retire in lieu of removal, or who retire under circumstances which
would warrant removal, shall not be eligible for SCOR." N.J.A.C.
4A:3.1(b)(1).
Nah plainly retired in the face of disciplinary proceedings seeking his
removal. His contention that he "did not retire in lieu of removal" but "retired
in lieu of pursuing the formal disciplinary appeal process available to him as a
member of the CWA Local 1033," is word play and ignores the discipline the
Public Defender was seeking in that process was removal. Although the
parties' settlement agreement permitted Nah to resign in good standing, it did
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not permit him SCOR benefits to which he was not entitled under N.J.A.C.
4A:3.1(b)(1).
Affirmed.
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