NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0400-20

IN THE MATTER OF MICKEY

YOUNG, WOODBINE 

DEVELOPMENTAL CENTER,

DEPARTMENT OF HUMAN

SERVICES.

___________________________

Argued November 15, 2021 – Decided March 10, 2022

Before Judges Messano, Accurso and Rose.

On appeal from the New Jersey Civil Service 

Commission, Docket No. 2020-1186.

Arnold Shep Cohen argued the cause for appellant 

Mickey Young (Oxfeld Cohen, PC, attorneys; Arnold 

Shep Cohen, of counsel and on the briefs).

Francis X. Baker, Deputy Attorney General, argued 

the cause for respondent Woodbine Developmental

Center, Department of Human Services (Andrew J. 

Bruck, Acting Attorney General, attorney; Melissa H. 

Raksa, Assistant Attorney General, of counsel; Francis 

X. Baker, on the brief).

Andrew J. Bruck, Acting Attorney General, attorney 

for respondent New Jersey Civil Service Commission 

(Eric A. Reid, Deputy Attorney General, on the 

statement in lieu of brief).

The opinion of the court was delivered by

ROSE, J.A.D.

APPROVED FOR PUBLICATION

March 10, 2022

APPELLATE DIVISION
A-0400-20 2

Mickey Young appeals from a final administrative action of the Civil 

Service Commission, finding it lacked subject matter jurisdiction over Young's 

administrative appeal from a reduced suspension imposed by the Department 

of Human Services. The sole issue raised on appeal is whether an appointing 

authority may unilaterally reduce a sanction from major to minor discipline 

after the employee is served with a Final Notice of Disciplinary Action 

(FNDA), thereby divesting the Commission of jurisdiction. Because we 

conclude the Department's action was consonant with the governing statutory 

and regulatory schemes, we affirm the Commission's decision dismissing 

Young's administrative appeal. 

I.

The facts are straightforward and, for purposes of this appeal, are largely 

undisputed. Young is employed as a painter at the Woodbine Developmental 

Center, a facility operated by the Department for men with developmental 

disabilities. Young also is a member of the International Federation of 

Professional & Technical Engineers, Local 195 (Union). 

Within a two-month period in 2016, Young was issued two Preliminary 

Notices of Disciplinary Action (PNDA) for separate acts of misconduct. 

Following a consolidated disciplinary hearing, the Department issued 

corresponding FNDAs, upholding the charges and sanctions. Because the 
A-0400-20 3

penalties for each action exceeded five days, they were deemed major 

disciplinary matters, entitling Young to appeal the decisions to the 

Commission pursuant to N.J.S.A. 11A:2-14. The Commission transmitted 

Young's timely appeal to the Office of Administrative Law (OAL) as contested 

cases. An Administrative Law Judge (ALJ) conducted a hearing and 

recommended reversal of the charges and sanctions. In its final November 26, 

2018 decision, the Commission upheld the ALJ's initial decision. 

Four days later, on November 30, 2018, Young sent a disparaging email 

to Steven Katz, the legal specialist who represented the Department at the 

hearing before the ALJ. Referencing Young's favorable outcome on the 

charges, the email repeatedly stated Katz was a "loser." The email triggered 

the charges at issue. 

Accordingly, on December 10, 2018, the Department served Young with 

a PNDA, proposing a fifteen-day suspension for the following offenses: 

conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); other 

sufficient cause, N.J.A.C. 4A:2-2.3(a)(12); and verbal abuse of a patient, 

client, resident, or employee, Administrative Order 4:08-C-4.1. Following a 

departmental hearing in September 2019, the hearing officer upheld the 

charges and sanction, and an FNDA was issued on October 17, 2019. Young's 
A-0400-20 4

ensuing appeal to the Commission was transmitted to the OAL as a contested 

case. 

Exercising "managerial discretion," the Department reconsidered 

Young's penalty and – three months prior to the September 2020 hearing date –

reduced his suspension to five days. The charges remained unchanged. 

Because the penalty no longer exceeded a five-day suspension, the Department 

claimed the matter was rendered a minor disciplinary action under the 

governing statutes and regulations, divesting the Commission of jurisdiction 

and eliminating Young's right to a hearing before the OAL. The Department 

noted Young's right to appeal minor disciplinary actions instead was governed 

by the collective negotiations agreement (CNA) between the State and the 

Union, which provides, in relevant part: 

1. There is hereby established a Joint 

Union/Management Panel [(JUMP)] consisting of two 

(2) individuals selected by the State and two (2) 

individuals selected by the Union and a third party 

neutral mutually selected by the parties. The purpose 

of this panel is to review appeals from Departmental 

determinations upholding disciplinary suspensions of 

one (1) through five (5) days. 

. . . .

5. The panel considerations shall be based upon 

the Department or Agency Head or designee's decision 

and any documents that have been made a part of the 

record of the matter before such Department or 

Agency Head or designee. The State and Union panel 
A-0400-20 5

members shall discuss each matter on the agenda and 

with the assistance of the neutral panel member, 

attempt to jointly resolve the appeal. Where the State 

and Union panel members agree, the appeal shall be 

dismissed or upheld, or the involved penalty may be 

reduced. Where the State and Union panel members 

do not agree as to the disposition of the appeal, the 

neutral panel member will determine whether the 

matter raises issues which may warrant submission to 

arbitration. In the event the neutral [panel member] 

determines that the matter does not raise issues which 

may warrant submission to arbitration, such 

determination shall be final and the matter closed. 

In June 2020, the Department moved for summary decision, seeking to 

dismiss Young's appeal for lack of jurisdiction. Young objected, arguing the 

Department's "power grab" improperly divested the Commission and, as such, 

the OAL of jurisdiction, therefore depriving Young a hearing on the merits. 

Following full briefing, another ALJ issued a cogent initial decision. 

Finding no issues of fact precluded a decision as a matter of law, the ALJ 

surveyed the controlling case law and relevant provisions of the Civil Service 

Act, N.J.S.A. 11A:1-1 to -12-6, and its regulations. Reasoning the 

Department's "inherent right" to reduce Young's penalty to five days 

constituted minor discipline pursuant to N.J.A.C. 4A:2-3.1(a), and the CNA

established an appeal process for minor discipline under N.J.A.C. 4A:2-3.2(a), 

the ALJ concluded Young had no right of appeal to the Commission. 

Accordingly, the ALJ granted the Department's motion. 
A-0400-20 6

The Commission thereafter considered Young's exceptions and the 

Department's reply and conducted an independent review of the record. In its 

September 10, 2020 final decision, the Commission accepted the ALJ's initial 

decision, dismissing Young's appeal for lack of jurisdiction. This appeal 

followed. 

On appeal, Young argues the Department's reduction in penalty was 

prohibited under the Act and violated his right to due process. He contends the 

Act and accompanying regulations make clear that upon issuing an FNDA, 

"the appointing authority becomes a litigant" and "cannot unilaterally modify a 

penalty." Young further asserts the appeal procedure for minor disciplinary 

actions set forth in the CNA does not guarantee a hearing, and even if a 

hearing were granted, the arbitrator determines guilt or innocence, not a 

change in penalty. As such, Young claims he is left with no recourse to 

remove the charges from his personnel file. 

II.

Our limited review of an agency decision is well settled. See Russo v. 

Bd. of Trs., Police & Firemen's Retirement Sys., 206 N.J. 14, 27 (2011). 

Ordinarily, we defer to the Commissioner's determination unless it was 

"arbitrary, capricious, or unreasonable." Melnyk v. Bd. of Educ. of the Delsea 

Reg'l High Sch. Dist., 241 N.J. 31, 40 (2020). Thus, "an appellate court 
A-0400-20 7

ordinarily should not disturb an administrative agency's determinations or 

findings unless there is a clear showing that (1) the agency did not follow the 

law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the 

decision was not supported by substantial evidence." In re Virtua-West Jersey

Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also

In re Stallworth, 208 N.J. 182, 194 (2011). "When an agency's decision meets 

those criteria, then a court owes substantial deference to the agency's expertise 

and superior knowledge of a particular field." In re Herrmann, 192 N.J. 19, 28 

(2007). The party challenging the administrative action bears the burden of 

demonstrating the agency has not made that showing. Lavezzi v. State, 219 

N.J. 163, 171 (2014). 

"A party may move for summary decision upon all or any of the 

substantive issues in a contested case." N.J.A.C. 1:1-12.5(a). The standard for 

summary decision motions pursuant to N.J.A.C. 1:1-12.5 is "substantially the 

same as that governing a motion under Rule 4:46-2 for summary judgment in 

civil litigation." L.A. v. Bd. of Educ. of Trenton, 221 N.J. 192, 203 (2015)

(internal quotation marks omitted). The motion may be granted if the record 

"show[s] that there is no genuine issue as to any material fact challenged and 

that the moving party is entitled to prevail as a matter of law." N.J.A.C. 1:1-

12.5(b); see also R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of America, 142 
A-0400-20 8

N.J. 520, 528-29 (1995). "Because an agency's determination on summary 

decision is a legal determination, our review is de novo." L.A., 221 N.J. at 

204. 

A reviewing court is "in no way bound by [an] agency's interpretation of 

a statute or its determination of a strictly legal issue." Allstars Auto. Grp., Inc. 

v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 158 (2018) (alteration in 

original) (internal quotation marks omitted). Nonetheless, "[w]e will overturn 

an agency's interpretation of a statute it implements only when it is 'plainly 

unreasonable.'" In re Comm'r's Failure to Adopt 861 CPT Codes, 358 N.J. 

Super. 135, 149 (App. Div. 2003) (quoting Merin v. Maglaki, 126 N.J. 430, 

437 (1992)). We thus afford "substantial deference to the interpretation of the 

agency charged with enforcing an act." Ibid. 

Along those same lines, "appellate review of an agency's choice of 

sanction is limited." In re License Issued to Zahl, 186 N.J. 341, 353 (2006). 

Courts "will modify a sanction 'only when necessary to bring the agency's 

action into conformity with its delegated authority,'" such as, when "'the 

agency has mistakenly exercised its discretion or misperceived its own 

statutory authority.'" Id. at 353-54 (quoting In re Polk License Revocation, 90 

N.J. 550, 578 (1982)). 
A-0400-20 9

Guided by these principles, we turn to the relevant sections of the Act 

and its accompanying regulations pertaining to the discipline of public 

employees. A review of these sections makes clear the Legislature's intent to 

differentiate between the appeal rights for those employees subject to 

suspensions greater than five days from those suspended for a shorter period. 

See N.J.S.A. 11A:2-14.

1

 The regulation promulgated by the Commission is in 

accord. See N.J.A.C. 4A:2-2.9(b). 

The Legislature expressly defined the appeal process by reference to the 

length of suspension, i.e., "five days or less." N.J.S.A. 11A:2-16.2 The 

accompanying regulation tracks the same timeframe including, within the 

definition of minor discipline, a suspension of "five working days or less." 

N.J.A.C. 4A:2-3.1(a). By comparison, employees suspended for more than 

five days, enjoy a right of appeal of the appointing authority's decision to the 

Commission pursuant to N.J.S.A. 11A:2-14, which may hear the appeal or 

refer the matter to the OAL under N.J.A.C. 4A:2-2.9(b). 

1

 An employee served with a suspension of five days or less may also appeal 

to the Commission if the "employee's aggregate number of days suspended or 

fined in any one calendar year is [fifteen] days or more." N.J.S.A. 11A:2-14. 

2

 Pursuant to the definition set forth in N.J.A.C. 4A:2-2.2(c), the 

Commission's use of the term "'days,' shall mean working days, unless 

otherwise stated." 
A-0400-20 10

N.J.S.A. 11A:2-16 permits a Civil Service employee to appeal a 

suspension of five days or less "pursuant to an alternate appeal procedure 

where provided by a negotiated contract provision." The corresponding 

regulation provides, in relevant part: "Minor discipline may be appealed to the 

Commission under a negotiated labor agreement." N.J.A.C. 4A:2-3.7(a). 

Where, as here, the "procedures are established by a negotiated agreement, 

such agreement shall be the applicable appeal process." N.J.A.C. 4A:2-3.2(a). 

Notwithstanding the relevant provisions of the Act and its regulations, 

Young argues that on issuing an FNDA, "the appointing authority becomes a 

litigant," and the penalty set forth in the FNDA can be changed only by the 

agreement of the parties or the Commission's final decision. To support his 

position, Young cites N.J.S.A. 11A:2-14 and N.J.A.C. 4A:2-2.6(d). Both 

provisions require the appointing authority to furnish the employee with an 

FNDA "within [twenty] days of the [appointing authority's disciplinary] 

hearing," but neither prohibits the appointing authority from reducing a penalty 

after the FNDA is issued. Thus, Young's interpretation of the statute and 

regulation finds no support in their plain meaning. 

A statute's plain language "is the 'best indicator' of legislative intent." 

State v. Rodriguez, 238 N.J. 105, 113 (2019) (quoting DiProspero v. Penn, 183 

N.J. 477, 492 (2005)). Courts construe a statute's plain language "in context 
A-0400-20 11

with related provisions so as to give sense to the legislation as a whole." 

DiProspero, 183 N.J. at 492; see also N. Jersey Media Grp., Inc. v. Twp. of 

Lyndhurst, 229 N.J. 541, 570 (2017). "If the plain language leads to a clear 

and unambiguous result, then our interpretative process is over." Richardson 

v. Bd. of Trs., Police & Firemen's Retirement Sys., 192 N.J. 189, 195 (2007). 

It is not the court's function to "presume that the Legislature intended 

something other than that expressed by way of the plain language." O'Connell 

v. State, 171 N.J. 484, 488 (2002). 

Courts interpret regulations in the same manner as statutes. In re 

Eastwick Coll. LPN-to-RN Bridge Program, 225 N.J. 533, 542 (2016). "In our 

interpretation of regulations, we give effect to their plain language." In re 

M.M., 463 N.J. Super. 128, 138 (App. Div. 2020). 

The "paramount goal" is ascertaining the regulator's intent, which is 

generally found in the regulation's "actual language." U.S. Bank, N.A. v. 

Hough, 210 N.J. 187, 199 (2012). The words of a regulation should be given 

"their ordinary and commonsense meaning." In re Election Law Enf't Comm'n 

Advisory Op. No. 01-2008, 201 N.J. 254, 263 (2010) (internal quotation marks 

omitted). Courts should presume the drafter "intended the words it chose and 

the plain and ordinary meaning ascribed to those words." Paff v. Galloway 

Twp., 229 N.J. 340, 353 (2017). 
A-0400-20 12

In the present matter, the governing statute and regulation are clear. The 

appointing authority must issue its FNDA within the time constraints set forth 

in N.J.S.A. 11A:2-14 and N.J.A.C. 4A:2-2.6(d). No language in these sections 

of the Act or the Administrative Code prohibits an appointing authority from 

reducing a penalty after the FNDA is issued. Rather, they establish the 

procedure by which an appointing authority must issue an FNDA. Because the 

terms of the statute and regulation are clear, we decline to construe them to 

mean anything beyond their plain terms. See O'Connell, 171 N.J. at 488. 

Not surprisingly, Young has not cited any case law – and our 

independent research has not revealed any – that supports his interpretation. 

Instead, Young's citation to the Court's decision in In re Hendrickson, 235 N.J. 

145 (2018), is misplaced. At issue in Hendrickson was "the appropriate level 

of deference to be afforded to an ALJ's disciplinary decision that becomes a 

final agency determination through the deemed-adopted provision of N.J.S.A. 

52:14B-10(c)," which outlines the procedures for contested cases before the 

OAL. Id. at 157. While the Court recognized the Commission's authority to 

"'adopt, reject or modify' the ALJ's findings and render a final decision" under 

N.J.S.A. 52:14B-10(c), the Court did not hold that only the Commission may 

modify the penalty sought by the appointing authority. Id. at 153. 
A-0400-20 13

As the Department noted in its responding brief, N.J.A.C. 4A:2-2.9(c) 

also empowers the Commission to "reverse or modify the action of the 

appointing authority." Importantly, however, neither N.J.S.A. 52:14B-10(c) 

nor N.J.A.C. 4A:2-2.9(c) proscribes the appointing authority's inherent 

discretion to reduce a penalty after an FNDA has been issued to a Civil Service 

employee. 

Accordingly, we reject Young's contention that the Department 

unlawfully reduced his penalty after the FNDA was issued. Nothing in the 

record indicates Young challenged the applicability of the Act, the 

Administrative Code, or the validity of the CNA, all of which are dispositive 

of the Commission's jurisdiction. 

We also find unavailing Young's argument that the Department's action 

violated his right to due process. To support his claim, Young cites our 

decision in Hammond v. Monmouth County Sheriff's Department, 317 N.J. 

Super. 199 (App. Div. 1999). Unlike the present matter, however, the issue on 

appeal in Hammond concerned the appointing authority's prosecution of 

charges it had dismissed after the departmental disciplinary hearing. Id. at 

204-05. Simply stated, we concluded an appointing authority may not add 

charges to the FNDA, reasoning to hold otherwise would "surcharge the right 
A-0400-20 14

to appeal with a cost which violates any decent sense of due process or fair 

play." Id. at 206. 

Conversely, in the present matter, following issuance of the FNDA, the 

Department reduced Young's penalty. The Department did not add new 

charges or otherwise amend the existing offenses and, as such, the appointing 

authority did not run afoul of our decision in Hammond, or otherwise infringe 

on Young's due process rights. Pursuant to the CNA, Young was free to file 

an appeal with JUMP. Although Young takes issue with the JUMP process, it 

is undisputed he received proper notice of the charges against him and was 

afforded the opportunity to defend against the charges at a full and fair 

departmental hearing. "As long as principles of basic fairness are observed 

and adequate procedural protections afforded, the requirements of 

administrative due process have been met." Kelly v. Sterr, 62 N.J. 105, 107 

(1973); see also In re Kallen, 92 N.J. 14, 25 (1983). 

We therefore conclude Young received adequate notice and an 

opportunity to be heard to satisfy administrative due process. Indeed, Young 

does not appear to have suffered any meaningful disadvantage by the reduction 

in penalty; he no longer faces major discipline, and he retains the right to 

challenge the charges and his five-day suspension in accordance with the 

CNA. 
A-0400-20 15

Moreover, Young's assertion that the appeal process set forth in the CNA

denies him the opportunity to remove the charges from his personnel file 

because JUMP can only reduce the penalty is incorrect. The CNA expressly 

provides JUMP may affirm or dismiss an appeal of a minor disciplinary 

sanction as well as reduce a penalty. Young's misgivings about the adequacy 

of the appeal process set forth in the CNA should be directed to the Union and 

the State, which negotiated the agreement and are not parties to this appeal. 

Thus, the issue is not properly before us. In any event, the record is devoid of 

any evidence that JUMP will not consider Young's appeal pursuant to the 

procedures set forth in the CNA. 

We conclude the Department permissibly exercised its inherent 

discretion in reducing Young's penalty to a five-day suspension, thereby 

divesting the Commission of jurisdiction under the Act and its accompanying 

regulations, and eliminating the right to a hearing before the OAL on the 

resulting minor disciplinary action. See Peper v. Princeton Univ. Bd. of Trs., 

77 N.J. 55, 65 (1978) (reiterating the well-established principle "that a court 

cannot hear a case as to which it lacks subject matter jurisdiction even though 

all parties thereto desire an adjudication on the merits"); see also Murray v. 

Comcast Corp., 457 N.J. Super. 464, 470 (App. Div. 2019). Having conducted 

a de novo review of the record and governing legal principles, L.A., 221 N.J. 
A-0400-20 16

at 204, we are satisfied the Commission properly upheld the ALJ's initial 

decision, dismissing Young's complaint on summary decision for lack of 

subject matter jurisdiction.

Affirmed.