### RECORD IMPOUNDED

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.

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Argued January 8, 2024

– Decided April 8, 202 4 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; Steph en 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 Gener al, 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. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0129

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PER CURIAM Petitioner J.M. appeals from an August 3, 2022 final administrative decision of the Civil Service Commission (C ommission), upholding the City of Elizabeth's (City) removal of his name from a 202 1 eligib le 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 C ommission certified J.M. to the eligible list for the employment of police officer s in the City. After the Commission's certification, the City referred J .M. for a pre-appointment psychological evaluation, which was conducted on Ju ne 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 Ci ty as a police officer. J.M. filed an appeal with the Commission on Septemb er 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's3 A- 0129

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notice. J.M. was also advised that he had ninety c alendar 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 d ue on December 14, 2021. J.M. was also told that a ny request for an extensio n of time must be in writing, stating reasons for the extension, and would be gra nted only for good cause.
O n October 8, 2021, the City sent copies of the pre-ap pointment psychological evaluation and tests to the Commissio n and J.M. The Commission confirmed with J.M.'s counsel that an in dependent psychological report was due on December 14, 2021. A dditional copies of J.M.'s test and background were sent by email to his counsel on Nov ember 8, 2021.
On December 3, 2021, J.M. requested an extension to January 10, 2022, to file his independent psychological report, stati ng that he was "just able to schedule an evaluation with Dr. David Gallina for D ecember 8, 2021." In reply to J.M.'s December 3 letter, the Commissio n requested that J.M. provide specific reasons for the delay in filing hi s 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 the4 A- 0129

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interview and testing with Dr. Gallina until he pai d the retainer in full and he "fail[ed] to quickly take care of the financial arr angements." 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 psychologica l 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 finding s of his pre-appointment psychological evaluation, [a nd] there was no basis to disturb the determination of the [City] ." Three days later, on January 10, 2022, J.M. submit ted Dr. Gallina's neuropsychiatric report to the Commission. Accordi ng to the report prepared on January 4, 2022, Dr. Gallina evaluated J.M. on D ecember 8, 2021 reviewed Dr. Cevasco's report , and opined that J.M. was "psychologically a suitabl e candidate" for the position of police officer. In a letter accompanying Dr. Gallina's report, J.M.'s counsel acknowledged the C ommission denied his extension request but claimed the City granted an e xtension. We note, however, neither a copy of J.M.'s adjournment request nor th e 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.5 A- 0129

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On August 3, 2022, the Commission issued a final a dministrative 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 not ed 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 Execut ive 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 Commissi on temporarily relaxed the timeframes for administrative appeals. The Com mission explained that effective April 9, 2020, N.J.A.C. 4A:6-5(e) was mod ified 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 [ninet y] calendar days, which may be extended for good cause, of the filing of hi s or her appeal to the Commission." After considering the regulations and the reports pr epared by Dr. Cevasco and Dr. Gallina, the Commission concluded J.M. had not demonstrated good6 A- 0129

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cause to extend the ninety-day timeframe for J.M. t o file a rebuttal psychological report. It determined that J.M. "continue[d] to exhibit a lac k 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 file d and address ing 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 a nd accept Dr. Gallina's report. It determined the City had submitted the pre-appoin tment psychological report in a "timely manner" and later followed by addition al 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 r equest to continue his appeal because it was "prejudicial to the City, and potent ially a current employee."7 A- 0129

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. 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 una vailing. "Judicial review of quasi-judicial agency determina tions is limited." Allstars Auto. Grp., Inc. v. N.J. Motor Vehicle Com m'n, 234 N.J. 150, 157 (2018) (citing Russo v. Bd. of Trs., Police & Firem en's Ret. Sys., 206 N.J. 14, 27 (2011)). "[A]n appellate court reviews agency d ecisions under an arbitrary and capricious standard." Zimmerman v. Sussex Cnty . Educ. Servs. Comm'n , 237 N.J. 465, 475 (2019). "An agency's determinati on on the merits will be sustained unless there is a clear showing that it i s arbitrary, capricious, or unreasonable, or that it lacks fair support in the r ecord." Saccone v. Bd. of Trs., Police & Firemen's Ret. Sys., 219 N.J. 369, 380 (20 14) (quoting Russo, 206 N.J. at 27) (internal quotation marks omitted). The par ty challenging the administrative action bears the burden of making th at 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 en d,8 A- 0129

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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 discreti on in light of the facts and circumstances of the particular case considered in t he 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. f ailed to establish good cause to extend the filing deadline for his re buttal report. We agree with the Commission that J.M. was "fully aware" of the D ecember 14 filing date; and as such, he was obliged to meet the date unless goo d 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 deni al of J.M.'s request to reopen his appeal after considering the facts and c ircumstances of his appeal

. The record shows the Commission appropriately weigh ed and considered the prejudice to the City and any officer hired by the City a fter J.M.'s removal from9 A- 0129

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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 pos ition 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 li st. Having considered the record and governing principl es, we conclude that J.M. has failed to establish the Commission's final agency decision was arbitrary, capricious, and unreasonable. We, there fore, we see no reason to disturb the Commission's decision. Affirmed.