NOT FOR PUBLICATION WITHOUT THE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-1435-19
IN THE MATTER OF MICHAEL
ACOSTA, POLICE LIEUTENANT
(PM0971A), WEST NEW YORK.
_____________________________
Submitted March 17, 2021 – Decided April 12, 2021
Before Judges Geiger and Mitterhoff.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2020-800.
Scott D. Finckenauer, attorney for appellant Michael
Acosta.
Gurbir S. Grewal, Attorney General, attorney for
respondent New Jersey Civil Service Commission
(Sookie Bae-Park, Assistant Attorney General, of
counsel; Debra A. Allen, Deputy Attorney General, on
the brief).
DeCotiis, Fitzpatrick, Cole & Giblin, LLP, attorneys
for respondent Town of West New York (Andres
Acebo, of counsel; Gregory J. Hazley, on the brief).
PER CURIAM
Appellant Michael Acosta is a sergeant in the West New York Police
Department. He appeals from an October 29, 2019 final agency decision of the
Civil Service Commission (the Commission) denying his request for leave to
submit a late application for the promotional examination for lieutenant. Acosta
claims the agency's decision was arbitrary and capricious and unsupported by
substantial credible evidence in the record. We affirm.
We derive the following facts from the record. On July 1, 2019, the
Commission published notice of a promotional examination for the position of
police lieutenant in the West New York Police Department (the Department),
which listed an application deadline of July 22, 2019. The notice also listed a
closing date of September 30, 2019, the date by which applicants were required
to establish their eligibility for the position. The notice provided instructions
for the application process and directed interested applicants to request an
orientation guide from the Commission. The notice further instructed interested
applicants to check the Commission's website "for updated information
concerning test dates and other information concerning the testing process. "
The promotional examination announcement was emailed to all police
supervisors in the Department, including Acosta, and posted on the
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Commission's website. The announcement was also displayed on the police
union's bulletin board in the Department's headquarters.
Acosta did not submit a timely application for the examination. Instead,
on August 20, 2019, some twenty-nine days after the application deadline,
Acosta requested leave to file a late application, claiming he was unaware of the
application deadline. Acosta asserted that the Taurus station he was assigned to
had poor internet connection. He explained that July had been a very stressful
month for him because he was in the process of having a baby through a
surrogate. Acosta further claimed he was unaware that the Department had
changed its application process.
On September 10, 2019, the Commission denied the request, explaining:
N.J.A.C. 4A:4-2.1(e) states that applications for
promotional examinations shall be filed no later than
the announced filing deadline. The Police Lieutenant
announcement for West New York (PM0971A) was
posted on the [N.J.] Civil Service website [twenty-four]
hours each day during the [twenty-one-]day posting
period . . . Additionally, Director Flores provided a
copy of the departmental order sent via email by former
Director Antolos to "All Police Supervisors" on July 1,
2019, advising them of the Police Captain and
Lieutenant promotional announcements. Included with
the order were links to both announcements, and the
announcements included directions for filing an
application. Director Flores confirmed that since you
are a supervisor, you were sent this memorandum via
email. Finally, you indicated that you received the
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email but, due to several reasons, you did not open the
email until after the filing deadline.
The Commission concluded there was no "substantial basis on which to relax"
N.J.A.C. 4A:4-2.1(e) and allow Acosta to file a late application.
On September 11, 2019, Acosta appealed the denial. Acosta claimed that
he was assigned to work at the Taurus station on June 30, 2019, and "was
unaware that [the] station had issues with the email system." Despite regularly
checking his email, Acosta claimed that the problem with the email system
caused him to not see the email from the Department about the promotion.
Acknowledging the Department sent the email, Acosta contended it was
impossible for him to access it at the Taurus station.
In addition, Acosta claimed circumstances prevented him from reporting
to the Department headquarters to check his emails during the entirety of the
notice period. He stated that he was assigned to both the "youth academy
program" and "the carnival and can drive fundraisers" during the notice period.
Also, he explained he was stressed and distracted during the time because he
and his partner "were in the process of achieving a pregnancy" through a
surrogate.
Acosta alleged that he discovered the faulty email system in August and
reported the problem to "tech support" right away. He claims he contacted the
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Commission as soon as he learned about this issue and requested permission to
submit a late application and take the exam.
On October 29, 2019, the Commission issued a final agency decision
denying Acosta's request. In its decision, the Commission found the notice "was
issued on July 1, 2019 with an application filing deadline of July 22, 2019 and
all on-line applications had to have been received by that date." The
Commission noted that the notice announced that the Police Lieutenant exam
was administered on October 10, 2019.
The Commission first recited appellant's explanations and noted that he
submitted supporting documentation, including: (1) "a photo of what he
purports to be his email inbox and the unread email containing the
announcement"; and (2) an email dated September 11, 2019 from purchasing
agent Xenia Rivero, which stated, "I want to bring to your attention that there
were issue[s] in the fios email at 5814 Park Ave.[,] West New York, [N.J.]
during July and August[.] [T]hey had u[s] down as a regular business[,] not as
Government[, and] therefore[,] it was disconnected."
The Commission then considered the arguments made by West New York.
West New York submitted: (1) a copy of an email sent on August 21, 2019 from
Police Director Mark Flores to Agency Services; (2) September 27, 2019 reports
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by Sergeant Karriem Shabazz, a Technical Services supervisor, regarding the
email system and linked mobile devices; and (3) the Standard Operating
Procedure for the West New York Police Computer Network and Enforsys
Operating System.
The Commission noted that a letter dated October 2, 2019 from West New
York's attorney read, "the Town appropriately notified all eligible candidates of
the promotional examination. . . . An email was sent out on July 1, 2019, and a
notice was promptly posted outside the Police Director's office [on] the Union's
bulletin board." The Commission also referenced a report dated September 27,
2019 by Sergeant Shabazz, in which he explained that there were "issues with
email during June and July, with the longest outage being on July 18 for a time
period of 54 minutes." He explained that "[t]he system itself was operational"
and "[i]f parties had individual concerns regarding the time it took to open their
emails, etc., [he] was not made aware of it." The Commission noted that
"Sergeant Shabazz also indicate[d] that there were no problems with the email
system[,] specifically in the Juvenile Division [at the Taurus Station] in July
2019[,] as 'the Juvenile Division accesses the same Exchange server and network
[as headquarters], except they . . . us[e] a VPN.'" Additionally, the Commission
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explained that the report revealed Acosta received eight emails on July 1,
2019—four of which he opened.
The Commission referenced a second September 27, 2019 report by
Sergeant Shabazz, which revealed:
the Microsoft ActiveSync Manage Mobile Phone
Utility indicate[d] that a mobile device was
synchronized with Acosta's work email on April 27,
2019 and last synchronized on September 18, 2019 and
a second mobile device was synchronized with Acosta's
work email on July 12, 2019 and last synchronized on
September 21, 2019.
The Commission noted West New York contended "that 'the record does
not support any justifiable neglect or technical issues with Acosta's access to his
work emails, particularly when he has multiple mobile devices connected to the
Department's email network' . . . [and] 'the email system is available to officers
during non-working hours.'" The Commission explained that West New York
requires officers to "check their email at least once during their shift on every
tour" and that "all members are to remain current with their emails by checking
it at least once during their shift." The Commission quoted West New York's
argument that "Acosta fail[ed] to demonstrate how an alleged technical delay in
the email system resulted in him not being able to view emails generally, and
subject the emails specially, for at least 22 days."
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After considering the parties' arguments and submissions, the
Commission denied appellant's request for leave to submit a late application for
the promotional examination. The Commission explained:
With respect to the appellant's claim that he was
unable to access his email during the application filing
period, West New York provides reports from the
Technical Services supervisor that the email system
was operational[,] and while there were some outage
issues during July, he was not made aware of any issues
regarding opening email messages. The Technical
Services supervisor further indicated that there were no
problems specifically with the email system in the
Juvenile Division in July 2019. In addition, Acosta
does not claim that the appointing authority did not
send an email regarding the subject exam prior to the
July 22, 2019 application filing deadline. See N.J.A.C.
4A:4-2.1(b).
Furthermore, . . . in his email sent August 20,
2019 to the Agency Services, Acosta indicated that he
was preparing for the Police Lieutenant examination by
taking a study course. It is noted that the Examination
Information Alert Police Promotional Schedule (2019)
(EIA) issued by the Division of Test Development and
Analytics in January 2019 and available on the
Commission website, indicated that announcements for
Police Lieutenant were to be issued on July 1, 2019 and
the application filing deadline would be July 22, 2019.
Since Acosta was in anticipation of and preparing for
the subject test, it is not clear from the record as to why
he was unaware of the application filing deadline, even
assuming that he was unable to access his email at the
Outreach station for [twenty-two] days, given the
available resources on the Commission's website in
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addition to the two mobile devices Acosta had linked to
his work email account.
[(footnote omitted).]
This appeal followed. Acosta argues that the Commission's decision was
arbitrary and capricious and unsupported by substantial credible evidence in the
record. He claims he demonstrated good cause to relax the regulations. We find
no merit in his argument and affirm substantially for the reasons expressed by
the Commission in its final decision. R. 2:11-3(e)(1)(E). We add the following
comments.
A final determination of an administrative agency is entitled to deference.
In re State & Sch. Emps.' Health Benefits Comm'ns' Implementation of Yucht,
233 N.J. 267, 279 (2018) (citing Henry v. Rahway State Prison, 81 N.J. 571,
579-80 (1980)). A reviewing court will only reverse the agency's decision if it
is arbitrary, capricious, or unreasonable or it is not supported by substantial
credible evidence in the record. Campbell v. Dep't of Civ. Serv., 39 N.J. 556,
562 (1963).
In determining if an agency's decision is arbitrary, capricious, or
unreasonable, we consider:
(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
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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.
[In re Carter, 191 N.J. 474, 482 (2007) (quoting Mazza
v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
"The burden of showing the agency's action was arbitrary, unreasonable or
capricious rests upon the appellant." Bowden v. Bayside State Prison, 268 N.J.
Super. 301, 304 (App. Div. 1993).
The Legislature authorized the Commission to "establish and supervise
the selection process" for civil service employment. N.J.S.A. 11A:2-11(f). See
also N.J.S.A. 11A:4-1.2 (authorizing the Commission to promulgate regulations
for selection and appointment). The Commission must provide for "[t]he
announcement and administration of examinations which shall test fairly the
knowledge, skills and abilities required to satisfactorily perform the duties of a
title." N.J.S.A. 11A:4-1(a).
"[A]pplications for open competitive and promotional examinations shall
be submitted to the Civil Service Commission no later than 4:00 [p.m.] on the
announced application filing date." N.J.A.C. 4A:4-2.1(e). For police officers,
make-up examinations for open competitive and general promotional testing
may only be authorized for the following reasons: (1) debilitating injury or
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illness requiring an extended period of recovery; (2) "[d]eath in the candidate's
immediate family"; (3) "[a] candidate's wedding which cannot be reasonably
changed"; (4) "[w]hen required for certain persons returning from military
service"; and (5) "[e]rror by the . . . Commission or appointing authority."
N.J.A.C. 4A:4-2.9(b).
In addition, the Commission "may relax these rules for good cause in a
particular situation, on notice to affected parties, in order to effectuate the
purposes of [the Civil Service Act]." N.J.A.C. 4A:1-1.2(c). A valid excuse for
the delay and a showing that the delay was reasonable is required. See Appeal
of Syby, 66 N.J. Super. 460, 464 (App. Div. 1961) ("Mere negligent overlooking
of the time requirements is not excusable neglect or mischance.").
N.J.A.C. 4A:4-2.1(e) makes clear that applications for promotional exams
must be submitted on or before the announced deadline. Acosta failed to submit
a timely application. His application was filed twenty-nine days past the
application deadline.
The Commission's decision was consonant with the regulations.
Substantial credible evidence in the records supports the Commission's findings
that: (1) "[t]he Technical Services supervisor further indicated that there were
no problems specifically with the email system in the Juvenile Division in July
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2019"; (2) "it is not clear from the record as to why [Acosta] was unaware of the
application filing deadline" if he had been anticipating and preparing for the
exam and had other means to access the announcement; and (3) even assuming
that he was unable to access his email at the Taurus station during the application
period, Acosta had access to his work email account through two mobile devices
and had access to the resources on the Commission's website, which contained
the application deadline.
Acosta failed to demonstrate good cause to justify relaxing the July 22,
2019 filing deadline for applications to sit for the promotional exam. See
N.J.A.C. 4A:1-1.2(c). He also failed to provide a valid reason for the
Commission to allow him to take a make-up exam. See N.J.A.C. 4A:4-2.9(b).
We are convinced that the Commission's decision was not arbitrary,
capricious, or unreasonable and was supported by substantial credible evidence
in the record. We discern no basis to overturn its decision.
Affirmed.
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