                                NOT FOR PUBLICATION WITHOUT THE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-1150-17T3


BELINDA MENDEZ-AZZOLLINI,

          Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and IRVINGTON BOARD OF
EDUCATION,

     Respondents.
_____________________________

                    Submitted December 5, 2018 – Decided March 15, 2019

                    Before Judges Fuentes and Moynihan.

                    On appeal from the Board of Review, Department of
                    Labor, Docket No. 099,278.

                    Caruso Smith Picini, PC, attorneys for appellant
                    (Timothy R. Smith, of counsel; Steven J. Kaflowitz, on
                    the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent Board of Review (Melissa Dutton Schaffer,
            Assistant Attorney General, of counsel; Aaron J. Creuz,
            Deputy Attorney General, on the brief).

            Respondent Irvington Board of Education has not filed
            a brief.

PER CURIAM

      Belinda Mendez-Azzollini appeals from the Board of Review's (Board)

final administrative decision affirming the Appeal Tribunal's August 25, 2017 1

determination that she was disqualified for unemployment benefits because of

her suspension and subsequent discharge from her position as a guidance

counselor for the Irvington Board of Education for severe misconduct: changing

a student's grade without a legitimate justification. Appellant argues: (1) the

appeal filed by the Deputy Director (Deputy) of the New Jersey Department of

Labor and Workforce Development – Division of Unemployment and Disability

Insurance (Division) of the Appeal Tribunal's October 13, 20162 decision – that

reversed the denial of unemployment benefits and deemed her eligible to receive

same – was, without good cause, filed out of time leaving the Board without


1
  The dates we refer to are the "mailing dates" for the decisions of the
Board and the Appeal Tribunal.
2
   The Board, in its merits brief, contends the Appeal Tribunal's decision was
mailed October 12, 2016. Although we perceive the mailing date on the Appeal
Tribunal's decision was October 13, we agree with the Board that the resolution
of the alleged discrepancy has no bearing on our decision.
                                                                       A-1150-17T3
                                      2
jurisdiction to hear the appeal; (2) the Appeal Tribunal's decision was not based

on competent evidence; (3) appellant's conduct did not amount to "severe

misconduct"; and (4) the Appeal Tribunal erred by relying on the arbitrator's

decision at appellant's tenure hearing because the arbitrator's findin gs related to

tenure charges of conduct unbecoming a teacher, and did not determine if her

actions constituted "severe misconduct." We agree with appellant's argument

that the Board did not have jurisdiction to hear the appeal of the Deputy and

reverse. As such, we need not address appellant's remaining arguments.

      The Appeal Tribunal's October 2016 decision followed a telephonic

hearing in which only appellant, with counsel, participated. Based on appellant's

"consistent and uncontroverted testimony," the Appeal Tribunal noted that the

right of her employer to discharge her for changing a student's grade did "not

necessarily establish . . . that the discharge was due to misconduct connected

with the work within the meaning of the law." The Appeal Tribunal found that

appellant, in changing the grade, acted within the discretion accorded her by her

employer

            and acted in good faith within such discretion. Her
            decision was based upon prior experience in similar
            situations, and was precipitated by an error which she
            did not create. In the absence of any clear rule or
            procedure of the employer which prohibited her from
            doing so, specified that she do so in a specific manner

                                                                            A-1150-17T3
                                         3
            which she then intentionally ignored, or any instruction
            from a superior which she disregarded, there is no
            evidence of willful misconduct.

      The parties do not dispute that the Deputy did not timely appeal that

decision. The Board's July 27, 2017 order recognized the Deputy "filed a late

appeal with good cause" and remanded the case "to the Appeal Tribunal for a

hearing and a decision on all issues" after "[i]t appear[ed] there [was] need for

additional testimony from [appellant] and the employer as to whether [appellant]

was discharged for misconduct connected with the work due to new evidence

the [D]ivision received." It was during the telephonic remand hearing – in which

appellant, with counsel, and the Deputy participated – that the Appeal Tribunal,

utilizing the transcript of the tenure arbitration proceedings, concluded

appellant's alteration of the student's records was "willful" and "malicious,"

constituting "severe misconduct" warranting a disqualification for benefits. The

Board affirmed in its September 25, 2017 decision.

      Our review of administrative agency decisions is limited. Brady v. Bd. of

Review, 152 N.J. 197, 210 (1997). "If the Board's factual findings are supported

'by sufficient credible evidence, courts are obliged to accept them.'"        Ibid.

(quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). We will not disturb

the Board's action unless it is "arbitrary, capricious, or unreasonable." Ibid.


                                                                           A-1150-17T3
                                        4
      Pursuant to N.J.S.A. 43:21-6(c), an Appeal Tribunal's decision "shall be

deemed to be the final decision of the board of review, unless further appeal is

initiated pursuant to subsection (e) of this section . . . within 20 days after the

date of notification or mailing of such decision." 3 "If a review of an Appeal

Tribunal's decision is not initiated by either an interested party or the Board . . .

within the [prescribed time limits], the decision becomes 'final' and is not subject

to review except upon a showing of fraud or other fundamental defect in the

proceedings." Van Ouhl v. Bd. of Review, 254 N.J. Super. 147, 151 (App. Div.

1992) (citing Kaske v. State of N.J., Bd. of Review, 34 N.J. Super. 222, 225-26

(App. Div. 1955)). Relief from these time constraints is afforded by N.J.A.C.

12:20-4.1(h) which provides:

             A late appeal shall be considered on its merits if it is
             determined that the appeal was delayed for good cause.
             Good cause exists in circumstances where it is shown
             that:

             1. The delay in filing the appeal was due to
             circumstances beyond the control of the appellant; or

             2.   The appellant delayed filing the appeal for
             circumstances which could not have been reasonably
             foreseen or prevented.


3
   N.J.S.A. 43:21-6(e) allows appeals to the Board by interested parties and
further provides that the Board "may on its own motion affirm, modify, or set
aside any decision of an appeal tribunal."
                                                                             A-1150-17T3
                                         5
       We conclude the Board's July 27, 2017 finding of good cause for the

Deputy to file the late appeal was arbitrary, capricious and unreasonable. The

Board did not set forth any basis for its conclusion that good cause existed. On

remand, after the Board found good cause, the Appeal Tribunal, without citing

to any record or document, attributed the following reasons to the Board's

finding:

            In this case, the Board . . . held the Deputy's appeal late
            with good cause on the basis that the Deputy possessed
            the decision of [appellant's] tenure hearing arbitrator
            (exhibit D1), which constituted new, admissible
            evidence in the matter. When [appellant] initially
            testified before the Appeal Tribunal on [October 12,
            2016], she testified that there was an inconsistency that
            she had discovered wherein the school's computer
            system reflected the inconsistent information showing
            an "F" grade but five credits earned. She failed to
            mention that it was she who had created the
            inconsistency by first altering the credits earned on
            [November 10, 2015]. Additionally, [appellant] also
            failed to mention in her [October 12, 2016] testimony
            that she had been repeatedly dishonest during her [June
            20, 2016] meeting with her supervisor and Principal
            about having had changed the grade from "F" to "D"
            only five calendar days earlier. Both of these facts were
            revealed to the [Appeal] Tribunal via exhibit D1, and
            confirmed with [appellant] while she was under oath
            during the [Appeal] Tribunal's [August 21, 2017]
            hearing.

      If this was, in fact, the basis for the Board's determination of good cause,

we conclude it does not support a finding under N.J.A.C. 12:20-4.1(h) which

                                                                          A-1150-17T3
                                        6
allows relief where the delay "was due to circumstances beyond the [Deputy's]

control" or the Deputy "delayed filing for circumstances which could not have

been reasonably foreseen or prevented." There is no evidence that establishes

either of the good cause reasons set forth in the regulation. The arbitrator's

decision was handed down on May 25, 2017. The record does not establish good

cause for filing a late appeal, twenty-five days after the arbitration decision was

handed down. Mazza v. Bd. of Trs., P.F.R.S., 143 N.J. 22, 25 (1995) (holding

in determining whether an agency action was arbitrary, capricious or

unreasonable, courts consider "whether the record contains substantial evidence

to support the findings on which the agency based its action").

      Furthermore, the arbitrator's decision did not present "new evidence" that

could not have been discovered in connection with the Deputy's first hearing.

The Appeal Tribunal found the "new evidence" consisted of appellant's failure

to mention during the first hearing that: (1) on November 10, 2015 she changed

the student's records to reflect he had earned five credits and (2) she had been

dishonest about changing the student's grade during a June 20, 2016 meeting

with her superiors. That information was available before the first hearing.

During the June 20 meeting, appellant admitted changing the grade shortly after

the superintendent of schools showed her a copy of the student's historical grade


                                                                           A-1150-17T3
                                        7
screen evidencing that the grade change was done by someone using appellant's

user code.

      A Deputy, upon receiving a claim for benefits, must notify the claimant's

employer. N.J.S.A. 43:21-6(b). That notice requires the "employer to furnish

such information to the [D]eputy as may be necessary to determine the

claimant’s eligibility and his [or her] benefit rights with respect to the employer

in question." Ibid. The employer has ten days after the notice is sent to respond

to the request for information. Ibid. If the employer fails to respond "the

[D]eputy shall rely entirely on information from other sources, including an

affidavit to the best of the knowledge and belief of the claimant with respect to

his [or her] wages and time worked." Ibid. If the Deputy cannot make an initial

determination due to a lack of information, the Division is permitted two

additional weeks to obtain the missing information. Ibid.

      Under this statutory framework, it was incumbent on the Deputy to request

information from the employer and, if necessary, take advantage of the allowed

extension to obtain needed information.       There is no evidence the Deputy

utilized the statutory two-week extension in order to obtain information from

the employer, which did not participate in the first hearing. Thus, the "new




                                                                           A-1150-17T3
                                        8
evidence" does not constitute good cause under N.J.A.C. 12:20-4.1(h) to excuse

the late filing.

      New Jersey courts have consistently held that the statutory filing deadlines

for unemployment appeals to be of jurisdictional import "and hence not

generally subject either to equitable tolling or to enlargement under the so-called

discovery rule." Hopkins v. Bd. of Review, 249 N.J. Super. 84, 88-89 (App.

Div. 1991). Absent good cause, the Appeal Tribunal was without authority to

hear the Deputy's late appeal on remand.

      As such, we reverse the Board's September 25, 2017 decision and reinstate

the Appeal Tribunal's October 13, 2016 decision. We remand this matter for

proceedings not inconsistent with this decision, if necessary to determine

appellant's entitlement. We do not retain jurisdiction.




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                                        9
