KENNETH J. SIRAKIDES, JR. VS. THE HONORABLE GURBIR S. GREWAL (L-1317-19, MERCER COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1132-19
KENNETH J. SIRAKIDES, JR.,
and MICHAEL J. RYAN,
Plaintiffs-Appellants,
v.
THE HONORABLE GURBIR S.
GREWAL, ATTORNEY
GENERAL STATE OF NEW
JERSEY, and THE DIVISION OF
STATE POLICE, DEPARTMENT
OF LAW AND PUBLIC SAFETY,
Defendants-Respondents.
_____________________________
Argued February 22, 2021 – Decided July 28, 2021
Before Judges Messano, Hoffman, and Smith.
On appeal from the Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-1317-19.
Sanford R. Oxfeld argued the cause for appellant
Kenneth J. Sirakides, Jr. (Oxfeld Cohen, PC,
attorneys; Sanford R. Oxfeld, of counsel and on the
briefs; Jessie M. Humphries, on the briefs).
Melissa Salimbene argued the cause for respondents
(Chiesa, Shahinian & Giantomasi, PC, attorneys;
Melissa Salimbene and James R. Hearon, on the
brief).
PER CURIAM
Appellant Kenneth J. Sirakides, Jr., a twenty-year veteran of the New
Jersey State Police (NJSP), appeals an order transferring his Law Division
complaint to the Appellate Division, pursuant to Rule 1:13-4(a). Sirakides'
complaint challenged the Attorney General's denial of three separate
recommendations for his promotion to sergeant. The complaint sought
Sirakides' retroactive promotion as well as back pay. 1 We affirm the transfer
from the Law Division as well as the denial of Sirakides promotion for the
reasons set forth below.
Sirakides has been employed as a state trooper with the NJSP since August
5, 2005. On three occasions, beginning in 2017, Sirakides sought promotion to
the rank of Sergeant. 2 On each occasion, the NJSP Acting Superintendent
(Superintendent) recommended Sirakides to the Attorney General for promotion
1
Co-plaintiff Michael J. Ryan withdrew his appeal in a letter he filed with us
on February 27, 2020.
2
The Superintendent recommended Sirakides for promotion by authoring three
letters to the Attorney General dated, November 28, 2017; May 15, 2018; and
February 8, 2019.
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consistent with NJSP guidelines. 3 In three separate letters dated January 2,
2018, July 9, 2018, and February 14, 2019, the Attorney General denied the
recommended promotions. Each denial letter from the Attorney General
contained the following language, "[f]ollowing a review of your promotional
package and disciplinary history, I did not approve your promotion pursuant to
N.J.S.A. 53:1-5.2 based upon your individual disciplinary history." No other
explanation or notice was provided in the letters.
On July 8, 2019, Sirakides filed a declaratory judgment action seeking
promotion to sergeant, alleging the Attorney General was arbitrary and
capricious in denying the three promotions. The respondents filed a motion to
dismiss pursuant to Rule 4:6-2(a) and (e). On October 10, 2019, Judge Janetta
D. Marbrey found the Attorney General's three denial letters each constituted
the final decisions of an administrative agency or officer, and issued an order
transferring the matter to the Appellate Division pursuant to Rule 2:2-3(a)(2).
See Prado v. State, 186 N.J. 413, 422 (2006).
3
The NJSP Operations Instruction Orders establish, among other administrative
processes, guidelines for promotion to sergeant. The orders in effect at the times
Sirikades sought his promotions to sergeant were Order 17-20, effective June 1,
2017 through June 30, 2018, and Order 18-21, effective July 17, 2018 through
July 31, 2019.
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Sirakides filed a timely notice of appeal, and respondents sought our leave
to amplify the Attorney General's decisions denying Sirakides' promotion and
to file it as within time, which we granted. The amplification, dated March 11,
2020, is part of the record before us.4
On appeal, Sirakides argues that the Attorney General's denials were not
final agency decisions and therefore jurisdiction in the Law Division was
appropriate. In the alternative, Sirakides argues that if jurisdiction is properly
with us, we should reverse the Attorney General's decisions as arbitrary and
capricious. We disagree.
It is fundamental that we have exclusive jurisdiction to review final
decisions made by a state agency—Sirakides does not dispute this well-
established principle. See Prado, 186 N.J. at 422-23; Strategic Env't Partners,
LLC v. N.J. Dep't of Env't Prot, 438 N.J. Super. 125, 138 (App. Div. 2014).
Nonetheless, Sirakides argues the denial letters contain no factual or legal
conclusions, no statement indicating the letters are to be considered final agency
decisions, nor any language advising Sirakides that he has any right to seek
4
Sirakides' disciplinary history includes multiple substantiated charges from
four separate internal investigations. The investigations resulted in a sixty-day
suspension on May 20, 2016 for two investigations; a twenty-day suspension on
March 14, 2014 for the third investigation; and a written warning on March 18,
2016 for the fourth investigation.
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review of the decision. He contends the letters are merely "polite refusals," not
final decisions, and consequently we have no jurisdiction over Sirakides' claims.
"A final agency decision has . . . been described as one in which the agency
communicates with 'unmistakable written notice the finality' of its decision."
Silviera-Francisco v. Bd of Educ., 224 N.J. 126, 137 (2016) (citing In re CAFRA
Permit No. 87-0959-5, 152 N.J. 287, 301 (1997)).
Sirakides argues that two cases, Siviera-Francisco and DeNike v. Bd. of
Trs., 34 N.J. 430 (1961), stand for the principle that final administrative action
must be characterized by, "findings of fact, conclusions of law, a definitive
ruling, and a…clear statement that…[a]…party may seek review of the decision
. . . ." Silviera-Francisco, 224 N.J. at 139 (citing DeNike, 34 N.J. at 435-436).
Silviera-Francisco involved a school administrator seeking to establish
and enforce tenure rights in the context of a school-district wide reduction in
force. The Commissioner of the Department of Education rejected the initial
decision of the ALJ, and then remanded the matter for more fact-finding. Id. at
130. After the ALJ completed additional fact-finding and issued a second initial
decision, the Commissioner adopted it. Id. at 130. In that case, the question
was whether the Commissioner's rejection and remand of the ALJ's first initial
decision was interlocutory or final. Id. at 131. Judge Cuff, writing for the Court,
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held the Commissioner's adoption of the ALJ's initial decision after the remand
was the final agency decision. Id. at 143.
DeNike involved the appeal of a widow whose deceased husband was a
member of the Public Employees' Retirement System (PERS). She wrote the
PERS board of trustees seeking the maximum amount of pension benefits she
argued she was entitled to as a widow. Id. at 432. PERS had no formal
administrative review process in place at the time of the appeal. Id. at 432. The
PERS trustees heard the widow's in-person request for clarification. Id. at 432.
The trustees then sent a written letter to the widow declining her request for the
maximum pension benefits. Id. at 432-33. The letter referenced the widow's
claim and denied it without explanation, noting that her request was "impossible
. . ." Id. at 433. The Court, noting the absence of any administrative rule or
regulation establishing a forum for the trustees to hear an appeal, concluded the
hearing was "informal," and nothing more than a "conference . . ." Id. at 435.
Given that the hearing itself was not "clothed with finality," PERS' denial letter
to the widow was "neither a finding of fact or conclusion of law." Id. at 436.
The facts before us are distinguishable. The record shows that Sirakides,
a state trooper with twenty-years' experience, followed a well-established
protocol for applying for promotion to sergeant. He was successful, to a point .
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The Superintendent reviewed his qualifications and disciplinary history and
recommended him for promotion. See supra note.3. He was not an employee
facing involuntary demotion seeking clarification of her rights, as in Silviera-
Francisco, nor was he an unsophisticated widower seeking pension benefits from
the employer of his deceased spouse, as in DeNike. He was an experienced
employee familiar with his disciplinary history. He settled his own disciplinary
charges more than once during a four-year period between 2012 and 2016. We
find Silviera-Francisco and DeNike are distinguishable on their facts from the
case before us.
To the extent Sirakides' argument merits consideration due to the
abbreviated denial letters, the Attorney General's amplification cures any defect
which may have existed. The amplification adds no new information, it simply
documents in painstaking detail what Sirakides already knew from the time he
received his first denial letter—that the reason the NJSP refused to promote him
was his lengthy disciplinary history. We conclude nothing would be achieved
by compelling further proceedings in the Law Division.
Having affirmed Judge Marbrey's order transferring jurisdiction,
respondent urges us to bar Sirikades' challenge to the denials because it was filed
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well beyond the forty-five-day appeal deadline pursuant to Rule 2:4-1(2)(b).5 In
light of our holding above we decline to do so. Affirming Judge Marbrey's
transfer and assuming jurisdiction, we turn to the merits.
Sirikades contends next that the Attorney General's decision to deny him
promotion was arbitrary and capricious. "The person challenging an agency
action has '[t]he burden of showing that an action was arbitrary, unreasonable[,]
or capricious.'" In re M.M., 463 N.J. Super 128, 136 (App. Div. 2020) (citations
omitted). The record shows Sirikades was involved in four separate incidents
between 2012 and 2015. The ensuing investigations led to seven substantiated
charges against him and corresponding discipline, including two suspensions.
We note Sirikades' disciplinary history reveals a wide range of concerning
conduct, including several negative interactions with his fellow officers.
Understanding that Sirikades seeks promotion to sergeant, a position which
requires the supervision of other state troopers, we cannot conclude on the
record before us that the Attorney General's decision to deny Sirikades'
promotion was arbitrary, capricious, or unreasonable. Any other arguments
5
Accepting July 8, 2019, the date that Sirakides filed his complaint in the Law
Division, as the date for challenging his promotion denials, he was one hundred
and forty-four days beyond his most recent denial of February 14, 2019 and five
hundred and fifty-two days beyond his oldest denial of January 2, 2018.
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made by Sirikades lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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