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Superior Court of New Jersey, Appellate Division.


DOCKET NO. A–4993–11T4

    Decided: March 26, 2014

Before Judges Maven and Hoffman.Robert P. Walsh, appellant, argued the cause pro se. Nicole M. DeMuro, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney;  Lisa A. Puglisi, Assistant Attorney General, of counsel;  Brandon Hawkins, Deputy Attorney General, on the brief). Stephen R. Fogarty argued the cause for respondent Delaware Valley Regional High School Board of Education (Fogarty & Hara, attorneys;  Mr. Fogarty, of counsel and on the brief;  Geoffrey M. Sweeney, on the brief).

Appellant Robert P. Walsh appeals from the May 1, 2012 final decision of the Board of Review (Board).   The decision affirmed an appeal tribunal's determination deeming him ineligible for unemployment benefits, in accordance with N.J.S.A. 43:21–5(a), because he was discharged from his employment for gross misconduct connected with the work.   Walsh's sole issue on appeal is his contention that respondent Delaware Valley Regional High School Board of Education (employer), lacked good cause for filing its appeal five days late.   We disagree and affirm.

After Walsh was initially awarded unemployment benefits, his employer received the Notice of Determination (Determination) of the Deputy on either November 20 or 21, 2007.   The Determination contained a Right of Appeal statement advising that any appeal from the Determination must be submitted within ten (10) days after the date of mailing, or by November 29, 2007.   Absent a filing within ten days, or a showing of good cause for extension of the filing date, the decision would become final.   The employer submitted a letter appealing the Determination on December 5, 2007, approximately five days late.   The letter provided that Walsh resigned his position as the school district Superintendent pending an “ongoing and active” criminal investigation of financial misconduct.

At the October 18, 2011 telephonic hearing before the Appeal Tribunal, Christina Sharkey, the employer's Business Administrator and Board Secretary, testified with respect to the reasons for the late filing.   She explained that upon receiving the Determination on November 20 or 21, 2007, she noticed what she believed was an incorrect basis for Walsh's separation from employment.   She immediately contacted the Department of Labor and Workforce Development, Division of Unemployment and Disability Insurance (Division), and the Hunterdon County Prosecutor's Office to relate that Walsh resigned under allegations of financial impropriety and that he did not leave voluntarily as stated in the Determination.   She further informed the Prosecutor's Office that she had to respond within ten days and “wanted to know what information [she] would be able to give to the Department of Labor to back up the ․ claim.”   She was told that she could not release any information because it could hamper the ongoing criminal investigation, but that they were going to “further check and see.”   After waiting to hear back from the Prosecutor on the status of the investigation, Sharkey called the Prosecutor's Office and the Division a second time on November 29, knowing that the deadline was nearing.   The Division told her that unless she could “provide additional information ․ the determination would stand,” but also advised that an appeal could be filed late if she could establish good cause for the delay.   At the hearing, Walsh argued that employer failed to establish such good cause.

The hearing officer issued her decision, finding that the employer had established good cause for filing the late appeal.   The hearing officer reasoned that “[a]s the claimant was told by the Division that appeals would be accepted late if good cause could be established, it was not unreasonable for the employer to think, given that an investigation was being conducted, that it had good reason to file the appeal approximately 5 days late.”   The Appeal Tribunal reversed the determination of the deputy and disqualified Walsh for benefits, finding he was discharged from his employment for gross misconduct connected with the work.   See N.J.S.A. 43:21–5(b).  The Board of Review affirmed the decision of the appeal tribunal, specifically finding that the employer's appeal was late with good cause “as the deputy discouraged the employer [from] filing an appeal because it could not provide details regarding the claimant's job separation.”   This appeal ensued.

Our standard of review of an agency decision is limited.  Brady v. Bd. of Review, 152 N.J. 197, 210 (1997);  Pub. Serv. Electric & Gas Co. v. N.J. Dep't of Envtl.   Prot., 101 N.J. 95, 103 (1985).   We will reverse a decision of an administrative agency only if it is contrary to law or “arbitrary, capricious, or unreasonable.”  Brady, supra, 152 N.J. at 210.  “[I]f substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result.”  Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992).

An administrative appeal to the Appeal Tribunal must be filed within ten days of the initial determination, in default of which the decision becomes final.   N.J.S.A. 43:21–6(b)(1).   The filing deadline is not jurisdictional.   Rivera v. Bd. of Review, 127 N.J. 578, 586 (1992).   Consequently, as a matter of due process, an untimely appeal “shall be considered on its merits if it is determined that the appeal was delayed for good cause.”  N.J.A.C. 12:20–3.1(i).   A good cause exception to the strict application of the appeal period ensures “that those who have a right to appeal are afforded the time to exercise that right.”  Rivera, supra, 127 N.J. at 590;  see also Garzon v. Bd. of Review, 370 N.J.Super. 1, 5 (App.Div.2004).   Good cause exists where:  “1. [t]he delay in filing the appeal was due to circumstances beyond the control of the appellant[ ] or 2.[t]he appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.”  N.J.A.C. 12:20–3.1(i).

As applied here, the delay in filing the appeal was neither foreseeable nor within the employer's control.   The investigating law enforcement agency advised Sharkey not to disclose any information because such disclosure may have hindered the pending investigation.   Sharkey testified that she was unaware of how long the investigation would take.   Clearly, the investigation into the financial improprieties, both in terms of its duration and its scope, was not in the employer's control.

The employer prudently followed the Prosecutor's directive and awaited further information on the status of the investigation before filing the appeal letter, and then only divulged a limited amount of detail to support its claim that Walsh should not receive unemployment benefits.   The Appeal Tribunal aptly recognized Sharkey's efforts to attain advice prior to taking action on the Determination, and reasonably found that the Division's instruction requiring the employer to provide additional information, coupled with the Prosecutor's directive not to disclose details of the ongoing investigation, constituted a “good reason to file the appeal approximately [five] days late.”   Walsh has not shown that the agency decision based on those facts was arbitrary, unreasonable, or capricious.

We conclude because the Board's decision was in accordance with the governing law, supported by the record, and reasonable, we have no occasion to interfere.



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