In the Matter of J.M. ( 2024 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-0129-22
IN THE MATTER OF J.M.,1
POLICE OFFICER (S9999A),
CITY OF ELIZABETH.
________________________
Argued January 8, 2024 – Decided April 8, 2024
Before Judges Berdote Byrne and Bishop-Thompson.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2022-681.
Stephen B. Hunter argued the cause for appellant J.M.
(Detzky, Hunter & DeFillippo, LLC, attorneys; Stephen
B. Hunter, of counsel and on the brief).
Brian D. Ragunan, Deputy Attorney General, argued
the cause for respondent New Jersey Civil Service
Commission (Matthew J. Platkin, Attorney General,
attorney; Sookie Bae-Park, Assistant Attorney General,
of counsel; Brian D. Ragunan, on the brief).
William R. Holzapfel, City Attorney, attorney for
respondent City of Elizabeth, joins in the brief of
respondent New Jersey Civil Service Commission.
1
To maintain confidentiality, we identify petitioner by initials.
PER CURIAM
Petitioner J.M. appeals from an August 3, 2022 final administrative
decision of the Civil Service Commission (Commission), upholding the City of
Elizabeth's (City) removal of his name from a 2021 eligible list for police officer
based on a psychological disqualification. We affirm based on the facts and
circumstances of petitioner's appeal.
I.
The facts are undisputed. On April 15, 2021, the Commission certified
J.M. to the eligible list for the employment of police officers in the City. After
the Commission's certification, the City referred J.M. for a pre-appointment
psychological evaluation, which was conducted on June 25, 2021 by Dr. Richard
P. Cevasco. Three days later, the City notified J.M. that he was deemed not
psychologically suitable for employment with the City as a police officer .
J.M. filed an appeal with the Commission on September 15, 2021, prior
to receiving notification that he had been removed from the eligible list . The
next day, the City requested the removal of J.M.'s name from the eligible list
and J.M. received notice of his removal. Thereafter, in a September 24, 2021
letter, the Commission acknowledged receipt of J.M.'s appeal and notified the
parties that submissions were due twenty days from the date of the Commission's
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notice. J.M. was also advised that he had ninety calendar days from September
15, the filing date of the appeal, to submit a report and recommendation from a
New Jersey licensed psychologist or psychiatrist to support his appeal pursuant
to N.J.A.C. 4A:4-6.5(e). Thus, J.M.'s report was due on December 14, 2021.
J.M. was also told that any request for an extension of time must be in writing,
stating reasons for the extension, and would be granted only for good cause.
On October 8, 2021, the City sent copies of the pre-appointment
psychological evaluation and tests to the Commission and J.M. The
Commission confirmed with J.M.'s counsel that an independent psychological
report was due on December 14, 2021. Additional copies of J.M.'s test and
background were sent by email to his counsel on November 8, 2021.
On December 3, 2021, J.M. requested an extension to January 10, 2022,
to file his independent psychological report, stating that he was "just able to
schedule an evaluation with Dr. David Gallina for December 8, 2021."
In reply to J.M.'s December 3 letter, the Commission requested that J.M.
provide specific reasons for the delay in filing his independent report by
December 17. In a certification dated December 16, J.M. stated that the
extension was needed to file the report because he was unable to schedule the
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interview and testing with Dr. Gallina until he paid the retainer in full and he
"fail[ed] to quickly take care of the financial arrangements."
In a January 7, 2022 letter, the Commission denied J.M.'s extension
request, determining that monetary issues did not constitute good cause to
extend the time to file an independent psychological report. The letter informed
J.M. that his appeal file had been closed because he had not presented
documentation within the "[ninety-day] timeframe allowed to refute the findings
of his pre-appointment psychological evaluation, [and] there was no basis to
disturb the determination of the [City]."
Three days later, on January 10, 2022, J.M. submitted Dr. Gallina's
neuropsychiatric report to the Commission. According to the report prepared
on January 4, 2022, Dr. Gallina evaluated J.M. on December 8, 2021 reviewed
Dr. Cevasco's report, and opined that J.M. was "psychologically a suitable
candidate" for the position of police officer. In a letter accompanying Dr.
Gallina's report, J.M.'s counsel acknowledged the Commission denied his
extension request but claimed the City granted an extension. We note, however,
neither a copy of J.M.'s adjournment request nor the City's grant of the extension
request was submitted in the record on appeal. J.M. also requested that the
Commission reconsider the closure of his appeal.
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On August 3, 2022, the Commission issued a final administrative decision,
upholding the City's removal of J.M. from the eligible list. In reviewing the
good cause exception for the filing requirements of the rebuttal report, the
Commission explained the regulatory purpose and the effect of the COVID-19
pandemic on the administrative regulations. The Commission noted that
N.J.A.C. 4A:6-5(f) states the Commission may extend the time period for filing
the required reports for good cause. Citing Executive Order 103 Section 6 (Apr.
9, 2020), 52 N.J.R. 971(a) (May 4, 2020) issued by Governor Murphy in
connection with the COVID-19 pandemic, the Commission temporarily relaxed
the timeframes for administrative appeals. The Commission explained that
effective April 9, 2020, N.J.A.C. 4A:6-5(e) was modified to include a good
cause provision like N.J.A.C. 4A:6-5(f). In that regard, N.J.A.C. 4A:4-6.5(e)
was modified to read: "The appellant may submit to the [Commission] a report
from a New Jersey licensed physician, psychologist, or psychiatrist of his or her
own choosing, which must be submitted within [ninety] calendar days, which
may be extended for good cause, of the filing of his or her appeal to the
Commission."
After considering the regulations and the reports prepared by Dr. Cevasco
and Dr. Gallina, the Commission concluded J.M. had not demonstrated good
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cause to extend the ninety-day timeframe for J.M. to file a rebuttal psychological
report. It determined that J.M. "continue[d] to exhibit a lack of judgment 'in
being able to make reasonable decisions" and "being able to appreciate the
consequences of his decisions" as determined by Dr. Cevasco. It explained J.M.
was "fully aware" of the December 14 due date, was responsible for securing a
psychological report as soon as his appeal was filed and addressing any
contingencies to meet the ninety-day timeframe to prevent dismissal of the
appeal. It also determined that even if the City had agreed to an extension, the
ninety-day timeframe is a "regulatory period," and iterated that it did not find
good cause to extend the filing deadline.
The Commission rejected J.M.'s argument regarding the timing of the
City's submission as a basis to reopen his appeal and accept Dr. Gallina's report.
It determined the City had submitted the pre-appointment psychological report
in a "timely manner" and later followed by additional tests and documents.
Noting the remedy for a successful petitioner to a disqualification is a "mandated
appointment to the position with a retroactive date of appointment for salary and
seniority purposes," the Commission denied J.M.'s request to continue his appeal
because it was "prejudicial to the City, and potentially a current employee."
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II.
On appeal, J.M. argues the Commission's denial of his request for an
extension to file his rebuttal psychological report was arbitrary, capricious, and
unreasonable. We conclude J.M.'s arguments are unavailing.
"Judicial review of quasi-judicial agency determinations is limited."
Allstars Auto. Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157
(2018) (citing Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14,
27 (2011)). "[A]n appellate court reviews agency decisions under an arbitrary
and capricious standard." Zimmerman v. Sussex Cnty. Educ. Servs. Comm'n,
237 N.J. 465, 475 (2019). "An agency's determination on the merits will be
sustained unless there is a clear showing that it is arbitrary, capricious, or
unreasonable, or that it lacks fair support in the record." Saccone v. Bd. of Trs.,
Police & Firemen's Ret. Sys., 219 N.J. 369, 380 (2014) (quoting Russo, 206 N.J.
at 27) (internal quotation marks omitted). The party challenging the
administrative action bears the burden of making that showing. Lavezzi v. State,
219 N.J. 163, 171 (2014).
"We have recognized the term, 'good cause,' evades a precise definition."
Estate of Semprevivo v. Lahham, 468 N.J. Super. 1, 14 (App. Div. 2021) (citing
Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007)). To that end,
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we have described the concept as: "Good cause is an amorphous term, that . . .
is difficult of precise delineation." Ghandi, 390 N.J. Super. at 196. "Its
application requires the exercise of sound discretion in light of the facts and
circumstances of the particular case considered in the context of the purposes of
the [] rule being applied." Baskett v. Kwokleung Cheung, 422 N.J. Super. 377,
384 (App. Div. 2011) (quoting Ghandi, 390 N.J. Super. at 196).
Here, the Commission properly concluded that J.M. failed to establish
good cause to extend the filing deadline for his rebuttal report. We agree with
the Commission that J.M. was "fully aware" of the December 14 filing date; and
as such, he was obliged to meet the date unless good cause was shown to extend
the date. J.M.'s self-generated financial planning hindered his ability to make a
timely appointment with Dr. Gallina, leading to the late preparation and
submission of his rebuttal report. We hold the Commission appropriately
determined that J.M. failed to show good cause for an extension in filing his
rebuttal report.
We are also satisfied with the Commission's denial of J.M.'s request to
reopen his appeal after considering the facts and circumstances of his appeal.
The record shows the Commission appropriately weighed and considered the
prejudice to the City and any officer hired by the City after J.M.'s removal from
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the list. As correctly noted by the Commission, if successful in his appeal, the
City would be "mandated" to appoint J.M. to the position with a retroactive date
of appointment for salary and seniority even if it required the displacement of
an officer hired after J.M. was removed from the list.
Having considered the record and governing principles, we conclude that
J.M. has failed to establish the Commission's final agency decision was
arbitrary, capricious, and unreasonable. We, therefore, we see no reason to
disturb the Commission's decision.
Affirmed.
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