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1 N.J.A.R. 315

Clark, Lynda v. Agriculture, N.J. Department of
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Citation: 1 N.J.A.R. 315
Decision Date: 1980
Synopsis: Lynda Clark appealed a dismissal based on disciplinary charges from her position as a senior clerk transcriber at the Department of Agriculture. Relying on N.J.S.A. I 1:15-4 and N.J.A.C. 4:1-5.3 which require the filing of an appeal and request for a hearing with the Civil Service Commission within 20 days of a dismissal, the Department of Agriculture moved to dismiss the appeal as untimely. In ruling on this motion to dismiss, the administrative law judge found that Clark's dismissal was effective April 20, 1979, prior to the end of her working test period, that she had been notified of her appeal rights by letter on May 1, 1979, and that she had appealed her dismissal on May 7, 1979. On June 5, 1979, the Civil Service Commission notified the Department that it had not followed the proper procedure in dismissing Clark, since she had been dismissed before the end of her test period she should have been granted a hearing by the Department. The Commission directed that Clark be reinstated pending the outcome of such a hearing and that she be fully intbrmed of her appeal rights. Clark was reinstated, suspended pending the hearing, notified of the charges against her and of her right to a Department hearing. This hearing was held in July 1979. Alter the hearing but prior to any notice of action, Clark requested that her appeal of May 7 be reinstated and Civil Service advised her that it would do so. The Department hearing upheld Clark's dismissal and she was formally notified of her dismissal on August 13, 1979. The judge found that the twenty-day period for appeal from this August termination expired without Clark filing a notice of appeal with Civil Service. Subsequently, Civil Service discovered that the proper form terminating Clark had not been sent to her and sent such a form on October 18, 1979, along with a cover letter containing a notice of a twenty-day appeal period. Clark requested resubmission of her appeal on November 7, 1979, and Civil Service recorded that the appeal had been received in time since it was received within twenty days of the notice of October 18. The administrative law judge noted that the twenty-day time limit for an appeal was mandatory and that the Civil Service Commission was without authority to provide Clark with an extension of the time for appeal as it appeared to attempt to do in the letter of October 18. However, the judge noted that Clark's letter of November 7 requested 'resubmission' of her appeal and that it was clear Clark did not distinguish her earlier improper removal of April, her subsequent corrective reinstatement and her ultimate removal on disciplinary charges. The judge l)und that Clark had pursued her appeal alter her Department hearing and had been told by Civil Service that her appeal would be reinstated on the basis of her letter of May 7, 1980. Thus, even though Civil Service failed to follow up on the reinstatement request, the judge ruled that it would be unjust to deny Clark her appeal rights when she had zealously pursued her appeal and had been advised that her original appeal would be reinstated. Accordingly, the motion to dismiss for lack of jurisdiction was denied. As to the dismissal on disciplinary charges, the administrative law judge found that the Department had met its burden of proving charges of incompetency, insubordination and conduct unbecoming a public employee by demonstrating a job performance level below a minimum standard and a refusal to obey the order of a superior. Accordingly, her dismissal was affirmed. Lynda L. Clark, Appellant, Pro se John J. Hayden, Deputy Attorney General for Respondent, (John J. Degnan, Attorney General of New Jersey, Attorney)
Statute(s) Cited: 11:15-4