SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4912-13T3 A-3041-14T3 A-0230-15T3 A-0232-15T3 A-0274-15T3 A-0275-15T3
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,
Appellant, APPROVED FOR PUBLICATION
v. December 1, 2016
NEW JERSEY CIVIL SERVICE APPELLATE DIVISION COMMISSION,
Respondent. ____________________________
Appellant,
v.
NEW JERSEY CIVIL SERVICE COMMISSION,
Respondent. ______________________________
IN THE MATTER OF JOB BANDING FOR SOFTWARE DEVELOPMENT SPECIALIST 1 AND 2, AND NETWORK ADMINISTRATOR 1 AND 2, OFFICE OF INFORMATION TECHNOLOGY. _____________________________
IN THE MATTER OF CHANGES IN THE STATE CLASSIFICATION PLAN AND JOB BANDING REQUEST, DEPARTMENT OF TRANSPORTATION. ______________________________
IN THE MATTER OF CHANGES IN THE STATE CLASSIFICATION PLAN AND JOB BANDING REQUEST, DEPARTMENT OF TRANSPORTATION. ______________________________
IN THE MATTER OF JOB BANDING FOR SOFTWARE DEVELOPMENT SPECIALIST 1 AND 2, AND NETWORK ADMINISTRATOR 1 AND 2, OFFICE OF INFORMATION TECHNOLOGY. ______________________________
Argued November 9, 2016 – Decided December 1, 2016
Before Judges Yannotti, Fasciale and Gilson.
On appeal from the New Jersey Civil Service Commission, Docket Nos. 2016-561, 2016-778, and 2016-779.
Annmarie Pinarski argued the cause for appellant Communication Workers of America, AFL-CIO in A-4912-13, A-3041-14, and A-0230- 15 (Weissman & Mintz, L.L.C., attorneys; Steven P. Weissman and Ms. Pinarski, on the briefs).
Arnold Shep Cohen argued the cause for appellant International Federation of Professional & Technical Engineers, Local 195 in A-0232-15 (Oxfeld Cohen, P.C., attorneys; Mr. Cohen, of counsel and on the brief).
Leon J. Sokol argued the cause for appellants Stephen M. Sweeney, President of the New Jersey State Senate, and Vincent Prieto, Speaker of the New Jersey General Assembly, the Senate and General Assembly in
2 A-4912-13T3 A-0274-15 and A-0275-15 (Cullen and Dykman, L.L.P., attorneys; Mr. Sokol and Herbert B. Bennett, of counsel and on the briefs).
Peter Slocum, Deputy Attorney General, argued the cause for respondent New Jersey Civil Service Commission (Christopher S. Porrino, Attorney General, attorney; Mr. Porrino, Mr. Slocum and Wan Cha, on the briefs).
The opinion of the court was delivered by
FASCIALE, J.A.D.
In these six appeals, which we have consolidated for the
purpose of rendering this opinion, the State Senate, Stephen M.
Sweeney, President of the New Jersey Senate, the General
Assembly, and Vincent Prieto, Speaker of the New Jersey Assembly
(collectively the Legislature), Communications Workers of
America, AFL-CIO (CWA), and the International Federation of
Professional & Technical Engineers, Local 195 (IFPTE), challenge
several final administrative agency decisions (the decisions)
rendered by the Civil Service Commission (CSC) pertaining to a
Job Banding Rule (the Rule), N.J.A.C. 4A:3-3.2A. The CSC
adopted and implemented the Rule after the Legislature invoked
its veto power, pursuant to N.J. Const. art. V, § 4, ¶ 6 (the
Legislative Review Clause), finding in numerous concurrent
resolutions that the Rule conflicted with the Civil Service Act
(CSA), N.J.S.A. 11A:1-1 to 12-6, which incorporated the text of
3 A-4912-13T3 N.J. Const. art. VII, § 1, ¶ 2. For the reasons that follow, we
conclude that the Legislature validly exercised its authority
under the Legislative Review Clause and correctly invalidated
the Rule. We therefore reverse the decisions and vacate the
implementation of that Rule, including any subsequent
amendments.
I.
We begin with a brief history of the Legislative Review
Clause and related governing legal principles. Doing so will
inform our holding on our standard of review and our conclusion
that the Legislature enjoys a limited constitutional power to
determine whether any administrative rule or regulation is
"consistent with the intent of the Legislature as expressed in
the language of the statute which the rule or regulation is
intended to implement." N.J. Const. art. V, § 4, ¶ 6.
In 1981, the Legislature overrode Governor Brendan T.
Byrne's veto and passed the Legislative Oversight Act, L. 1981,
c. 27, N.J.S.A. 52:14B-4.1 to -4.9. In general, the Legislative
Oversight Act permitted legislative veto of administrative
regulations by concurrent resolution of both houses. In General
Assembly v. Byrne, 90 N.J. 376, 378-79 (1982), the Court applied
the then existing New Jersey Constitution, invalidated the
Legislative Oversight Act, and stated:
4 A-4912-13T3 We hold that the legislative veto provision in the Legislative Oversight Act, L. 1981, c. 27, violates the separation of powers principle that "[t]he powers of the government shall be divided among three distinct branches," N.J. Const. (1947), [art. III, ¶]1, by excessively interfering with the functions of the executive branch. The Legislature's power to revoke at will portions of coherent regulatory schemes violates the separation of powers by impeding the Executive in its constitutional mandate to faithfully execute the law. The legislative veto further offends the separation of powers by allowing the Legislature to effectively amend or repeal existing laws without participation by the Governor. This process also contravenes the Presentment Clause requirement that changes in legislative policy be effected by a majority vote of both houses of the Legislature and approval by the Governor or, after executive veto, by a two-thirds vote of both houses. N.J. Const. (1947), [art. V, § 1, ¶]14.
[(First alteration in original) (emphasis added).]
The Court found that
the broad and absolute legislative veto provision in L. 1981, c. 27, is both an excessive intrusion into executive enforcement of the law and an unconstitutional mechanism for legislative policy making beyond the Governor's control. The Legislative Oversight Act thereby gives the Legislature excessive power both in making the laws and in enforcing them. This violates the separation of powers and the Presentment Clause.
[(Id. at 379).]
5 A-4912-13T3 The separation of powers doctrine tempers the use of
governmental power. In New Jersey, the Framers created a
government with three distinct branches, each a separate source
of power that could check the potential abuses of the other
branches. N.J. Const. art. III, ¶ 1 reads:
The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.
The Framers established a government of separated and balanced
powers primarily because they feared "that in a representative
democracy the Legislature would be capable of using its plenary
lawmaking power to swallow up the other departments of the
Government." Gen. Assembly, supra, 90 N.J. at 383 (quoting
Consumer Energy Council of Am. v. Fed. Energy Reg. Comm'n, 673
F. 2d 425, 464 (D.C. Cir. 1982)). It has been the well-
recognized constitutional role of the judiciary to prevent one
branch of government from exercising illegitimate power over the
other. Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed.
60 (1803).
6 A-4912-13T3 The Presentment Clause, N.J. Const. art. V, § 1, ¶ 14, like
that in the Federal Constitution, U.S. Const. art. I, § 7, cl.
2, states in relevant part:
(a) When a bill has finally passed both houses, the house in which final action was taken to complete its passage shall cause it to be presented to the Governor before the close of the calendar day next following the date of the session at which such final action was taken.
(b) A passed bill presented to the Governor shall become law:
(1) if the Governor approves and signs it within the period allowed for his consideration; or,
(2) if the Governor does not return it to the house of origin, with a statement of his objections, before the expiration of the period allowed for his consideration; or,
(3) if, upon reconsideration of a bill objected to by the Governor, two-thirds of all the members of each house agree to pass the bill.
The Presentment Clause therefore "prevents the exercise of law-
making power without the concurrence of both houses of the
Legislature and approval by the Executive, unless the
Legislature can muster a two-thirds majority vote of both houses
to override the executive veto." Gen. Assembly, supra, 90 N.J.
at 384.
7 A-4912-13T3 In response to the Court's decision in General Assembly,
the Legislature immediately introduced concurrent resolution
SCR-133 proposing an amendment to the New Jersey Constitution
giving the Legislature the power to "invalidate any rule or
regulation, in whole or part," and to "prohibit any proposed
rule or regulation, in whole or part, by a majority of the
authorized membership of each House." The Attorney General
appealed the decision of the Secretary of State to place the
proposed constitutional amendment on the ballot, arguing the
interpretive statement was confusing and that the language of
SCR-133 was ambiguous. See Kimmelman v. Burgio, 204 N.J. Super.
44, 47 (App. Div. 1985).
In Kimmelman, we concluded the proposed amendment should be
placed on the ballot, but agreed the interpretive statement was
misleading. Id. at 53-54. We suggested the interpretive
statement be replaced with the following language:
State executive agencies are authorized to issue rules and regulations which have the force and effect of law. The Legislature may review those rules and regulations from time to time in order to determine whether they conform with the intent of the statutes. The Supreme Court of New Jersey has ruled that under the New Jersey Constitution in general the Legislature may not invalidate an executive rule or regulation except by adopting legislation subject to the Governor's veto. This amendment addresses that Supreme Court
8 A-4912-13T3 ruling by modifying the New Jersey Constitution to allow the Legislature to invalidate executive rules and regulations without enacting legislation and without presenting the issue to the Governor. Its enactment would constitute a fundamental change in the relationship between the co- equal branches of government.
[Id. at 55 (emphasis added).]
In 1985, this interpretive statement appeared on the ballot, but
the voters rejected the sweeping proposed constitutional
amendment.
Instead, seven years later, the voters approved amending
the New Jersey Constitution with the text of the Legislative
Review Clause, giving the Legislature limited power to
invalidate an administrative rule or regulation, which states:
No rule or regulation made by any department, officer, agency or authority of this state, except such as relates to the organization or internal management of the State government or a part thereof, shall take effect until it is filed either with the Secretary of State or in such other manner as may be provided by law. The Legislature shall provide for the prompt publication of such rules and regulations. The Legislature may review any rule or regulation to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement. Upon a finding that an existing or proposed rule or regulation is not consistent with legislative intent, the Legislature shall transmit this finding in the form of a
9 A-4912-13T3 concurrent resolution to the Governor and the head of the Executive Branch agency which promulgated, or plans to promulgate, the rule or regulation. The agency shall have 30 days to amend or withdraw the existing or proposed rule or regulation. If the agency does not amend or withdraw the existing or proposed rule or regulation, the Legislature may invalidate that rule or regulation, in whole or in part, or may prohibit that proposed rule or regulation, in whole or in part, from taking effect by a vote of a majority of the authorized membership of each House in favor of a concurrent resolution providing for invalidation or prohibition, as the case may be, of the rule or regulation. This vote shall not take place until at least 20 calendar days after the placing on the desks of the members of each House of the Legislature in open meeting of the transcript of a public hearing held by either House on the invalidation or prohibition of the rule or regulation.
[N.J. Const. art. V, § 4, ¶ 6 (emphasis added).]
The Legislative Review Clause specifically addressed the Court's
decision in General Assembly, supra, 90 N.J. at 379.
Pursuant to the unambiguous plain language of the
Legislative Review Clause, the Legislature may review the rule
or regulation to determine if it conforms to legislative intent,
reflected in "language of the statute which the rule or
regulation is intended to implement." N.J. Const. art. V, § 4,
¶ 6. In other words, the text of the Legislative Review Clause
permits the Legislature to analyze two things: the State agency
10 A-4912-13T3 administrative rule or regulation and the language of the
statute.
II.
In May 2012, the CSC established a pilot program for job
banding in the CSC and the Department of the Treasury. Job
banding means grouping certain job titles into one "band" and
allowing advancement of employees from lower to higher titles in
the same band without competitive promotional examination. The
program included job banding the Human Resource Consultant,
Personnel and Labor Analyst, State Budget Specialist, and Test
Development Specialist title series.
In February 2013, the CSC filed a proposal (the proposal)
to amend its regulations and implement the Rule. The proposal
appeared in the March 2013 Register, 45 N.J.R. 500(a). The
Proposed Rule (Proposed Rule) implemented job banding,
redefining "promotion" to mean "movement to a title with a
higher class code not in the employee's current job band."
According to the Proposed Rule, a "promotion" from a lower
title to a higher title within a job band would be redefined as
an "advancement appointment." Adopting the Proposed Rule would
allow job bands and advancement of employees in the competitive
service from lower to higher titles without the long-standing
requirement for competitive promotional examination. The CSC
11 A-4912-13T3 acknowledged this change by stating in its social impact
statement accompanying the proposal that
[o]rdinarily, to promote an employee to a higher title, both the appointing authority and interested eligibles are required to go through a process that consists of requesting an announcement, filing an application in order to determine eligibility to compete in an examination, developing an examination, conducting the examination, issuing an eligible list, certifying the list, and making appointments of reachable eligibles from the certification.
The practical effect of adopting the Proposed Rule would give
appointing authorities greater discretion in selecting
candidates for promotion to higher titles than would otherwise
exist in a competitive examination system.
Between June 2013 and November 2014, the Legislature passed
four sets of concurrent resolutions1 finding that the Rule, in
all its amended forms, contravened the CSA, which incorporated
the plain text of N.J. Const. art. VII, § 1, ¶ 2. In June 2013,
Assembly resolution ACR-199 and Senate resolution SCR-158 were
introduced in the Legislature, pursuant to the Legislative
1 June 2013 (ACR-199, which the Senate had substituted for SCR- 158); January 2014 (ACR-215, which the Senate had substituted for SCR-166); June 2014 (SCR-116, which the Assembly had substituted for ACR-155); and November 2014 (ACR-192, and in December 2014, ACR-192, which the Senate had substituted for SCR-147).
12 A-4912-13T3 Review Clause. The resolutions stated that the Legislature
found the Proposed Rule was inconsistent with the legislative
intent as reflected in the statutes governing appointments and
promotions in the classified service. The Legislature passed
ACR-1992 after considering the Proposed Rule in light of the
plain text of the CSA. The Legislature also noted the public
policy, statutes, and constitutional provisions applicable to
public employees' appointments and promotions in the competitive
division of the classified service.
In these concurrent resolutions, the Legislature resolved
that
[1.] The proposed new [Rule] is contrary to the spirit, intent, and plain meaning of the provision in the New Jersey Constitution [N.J. Const. art. VII, § 1, ¶ 2, referenced in the CSA] that requires that promotions be based on merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive.
[2.] The fact that the proposed new [R]ule would eliminate competitive promotional examinations for tens of thousands of positions for which such exams have been administered for decades is compelling evidence that it is practicable to continue to determine the merit and fitness of candidates for such promotional positions by competitive examination in accordance with the New Jersey Constitution.
2 The Senate substituted ACR-199 for SCR-158.
13 A-4912-13T3 [3.] The proposed new [R]ule is not consistent with the legislative intent that the public policy of this State is to select and advance employees on the basis of their relative knowledge, skills and abilities, ensure equal employment opportunity at all levels of public service, and protect career public employees from political coercion.
[4.] The proposed new [R]ule is not consistent with the legislative intent that a competitive promotional examination process be established, maintained, and administered by the [CSC] to ensure that promotions are based on merit and fitness and are not based on patronage or discriminatory reasons.
[5.] The proposed new [R]ule is not consistent with the legislative intent that whenever a veteran ranks highest on a promotional certification, a nonveteran shall not be appointed unless the appointing authority shall show cause before the [CSC] why a veteran should not receive such promotion.
[6.] The proposed new [R]ule is not consistent with the intent of the Legislature as expressed in the language of the [CSA], including the spirit, intent, or plain meaning of N.J.S.A. 11A:3-1, N.J.S.A. 11A:4-1, N.J.S.A. 11A:4-8 or N.J.S.A. 11A:5- 7.
The Legislature transmitted the concurrent resolutions to the
CSC on December 4, 2013, and notified the CSC that it would have
thirty days to "amend or withdraw" the Proposed Rule, or if
there was no action, the Legislature may, by the passage of
14 A-4912-13T3 another concurrent resolution, invalidate the Proposed Rule "in
whole or in part."
On December 23, 2013, the CSC adopted amendments (the first
amendments) to the Proposed Rule (the First Amended Proposed
Rule). The first amendments, however, permitted the CSC to
place titles in job bands and advance employees from lower to
higher titles in a job band upon attaining certain
"competencies." They also stated that veterans would receive
the same preference in advancements within the band as they did
in promotional settings in place at the time, limited the scope
of job banding to State service, excluded law enforcement and
public safety jobs from job banding, and stated that employees
would retain the right to complain about discrimination in the
advancement process.
These amendments did not change the provisions of the rule
that allowed job banding of titles and promotions within those
titles without competitive examinations. The first amendments
therefore did not withdraw or substantively amend the Proposed
Rule to cure its inconsistency with the statutory provisions of
the CSA which require promotional competitive testing for
appointments and promotions in the State's competitive service.
15 A-4912-13T3 In January 2014, the Legislature passed concurrent
resolution ACR-215,3 which invalidated the First Amended Proposed
Rule. Nevertheless, on May 7, 2014, the CSC disregarded the
Legislature's veto and adopted the First Amended Proposed Rule
with an effective date of June 2, 2014. The CWA appealed from
the CSC's decision to adopt the First Amended Proposed Rule
shortly thereafter.
In May 2014, another set of concurrent resolutions was
introduced in the Legislature pursuant to the Legislative Review
Clause. The Senate introduced SCR-116 and the Assembly
introduced ACR-155. On June 12, 2014 and June 16, 2014, the
Senate and the Assembly passed these concurrent resolutions,
which mirrored ACR-199 and SCR-158, stating that the First
Amended Rule remained inconsistent with legislative intent and
added "[a]ny amended rule that contains a job banding provision
or elimination of competitive promotional examinations shall be
deemed by the Legislature as violating Article VII, [§ 1, ¶] 2
of the Constitution of the State of New Jersey and the [CSA.]"
The Legislature transmitted SCR-116 and ACR-155 to the CSC on
June 17, 2014.
3 The Senate substituted ACR-215 for SCR-166.
16 A-4912-13T3 On July 16, 2014, the CSC proposed a second set of
amendments (the Second Amended Proposed Rule). The Second
Amended Proposed Rule stated that the "appointing authority
would be required to obtain approval of the advancement
appointment selection process from the Chairperson of the [CSC]
or designee" before proceeding with its advancement appointment
selection process. Furthermore, the Second Amended Proposed
Rule stated that the appointing authority would have to rank
candidates after determining which employees may receive an
advancement appointment. The Second Amended Proposed Rule also
retained for civil titles in State service the same components
of the Proposed Rule, specifically, job banding and the lack of
competitive promotional examinations, to which the Legislature
fundamentally and repeatedly found to be inconsistent with the
intent of the plain language of the statutes governing
promotions in the competitive service.
Once again, concurrent resolutions were introduced in the
Legislature: ACR-192 was introduced in the Assembly on September
29, 2014, and SCR-147 was introduced in the Senate on October 9,
2014. On October 22, 2014, the CSC adopted its Second Amended
Proposed Rule. On November 13, 2014, the Assembly passed ACR-
192, and on December 18, 2014, the Senate passed ACR-192, which
the Senate had substituted for SCR-147. ACR-192 invalidated the
17 A-4912-13T3 Second Amended Proposed Rule stating it remained inconsistent
with legislative intent of the CSA and the civil service
provision of the New Jersey Constitution.
In February 2015, the CWA wrote to the CSC asking whether
the CSC planned to proceed with the Second Amended Proposed
Rule, given the Legislature's numerous concurrent resolutions.
On February 9, 2015, the CSC rendered its decision asserting
that the Second Amended Proposed Rule was not invalidated by the
Legislature. The CWA appealed from this decision.
In June 2015, the Office of Information Technology (OIT)
submitted a proposal to the CSC to implement job banding for
Software Development Specialist 1 and 2 and Network
Administrator 1 and 2. In July 2015, the CWA requested that the
CSC withhold a decision on whether to implement OIT's proposal
to band job titles. On July 31, 2015, the CSC issued its
decision approving OIT's job banding proposal. The Legislature
and the CWA appealed from this decision.
In July 2015, the New Jersey Department of Transportation
(NJDOT) submitted a proposal to the CSC to discontinue certain
titles and consolidate others. The NJDOT proposed to assign
seven job titles to the new Highway Operation Technician (HOT)
Title Series and job band them pursuant to the Rule. This new
title series included HOT Trainee, HOT 1, HOT 2, and HOT 3. On
18 A-4912-13T3 August 21, 2015, the CSC issued its decision approving the
NJDOT's proposal. The Legislature and the IFPTE appealed from
this decision.
III.
On appeal, the Legislature, the CWA, and the IFPTE argue
the Legislature possessed the constitutional power to veto the
Rule; the Legislature followed the procedural process expressed
in the Legislative Review Clause for invalidating the Rule; the
Legislature's findings and conclusions contained in its
concurrent resolutions are entitled to substantial deference;
and the CSC's decision to ignore the Legislature's invalidation
of the Rule amounted to a violation of the separation of powers
doctrine.
We begin by addressing our standard of review applicable to
the Legislature's findings and conclusions contained in its
concurrent resolutions.
The Legislature argues our role is primarily limited to
determining whether it followed procedural safeguards contained
in the Legislative Review Clause. Relying on the Legislative
Review Clause, the Legislature maintains "[t]here is [generally]
no role for judicial review of the Legislature's findings that a
regulation is contrary to legislative intent." The Legislature
asserts we may reverse its concurrent resolutions only if its
19 A-4912-13T3 findings and conclusions are repugnant to the New Jersey
Constitution. The Legislature contends that a presumption of
validity applies to its concurrent resolutions, and that we
should afford the Legislature substantial deference and not
second-guess its findings.
CWA, like the Legislature, asserts we should afford
deference to the findings and conclusions contained in the
Legislature's concurrent resolutions invalidating the Rule. CWA
points out that here, unlike in a typical third-party challenge
to a final agency decision, we are primarily reviewing whether
the Legislature correctly exercised its veto power. CWA
therefore emphasizes that the well-settled standards of review
in typical agency appeals are inapplicable. The IFPTE also
argues that if the Legislature properly exercises its
constitutional veto power, an executive agency is "bound to
adhere to the legislative will and not implement the invalidated
regulation."
The CSC submits our role is not as limited as appellants
advocate. The CSC emphasizes that we should conduct an exacting
and thorough judicial review of the Legislature's findings and
conclusions. It stresses that such a review is fundamental to
our system of governmental checks and balances. The CSC urges
judicial review of the Legislature's invalidation of the Rule to
20 A-4912-13T3 avoid violations of the law in general, and particularly to
ensure compliance with the separation of powers and presentment
clauses of the New Jersey Constitution. The CSC argues that
such an exhaustive judicial review is not precluded or limited
in any way by the plain text of the Legislative Review Clause.
We agree that our general standard of review in appeals
from final agency decisions is inapplicable. In a typical
appeal from a final agency decision, which this is not, our
capacity to review administrative actions "is severely limited,"
Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22,
25 (1995), and we are not free to substitute our judgment for
the "'wisdom of a particular administrative action'" as long as
the action is statutorily authorized and not arbitrary or
unreasonable. Gloucester Cty. Welfare Bd. v. N.J. Civil Serv.
Comm'n, 93 N.J. 384, 391 (1983) (quoting N.J. Guild of Hearing
Aid Dispensers v. Long, 75 N.J. 544, 562 (1978)). Although such
a standard has been well-recognized for years, the
distinguishing factor obviating use of an administrative agency
standard of review here is the substantial involvement of the
Legislature pursuant to the Legislative Review Clause. We are
not merely determining, as we would if this were a typical
appeal from an agency decision, whether the CSC decisions were
21 A-4912-13T3 arbitrary, capricious, or unreasonable, or whether they were
otherwise unsupported by credible evidence in the record.
The plain text of the Legislative Review Clause does not,
however, limit our traditional role of interpreting the law.
And it does not preclude the judicial branch from exercising its
role to enforce the checks and balances embodied in the State
Constitution. The Legislative Review Clause does not negate the
well-recognized role of the judiciary to safeguard the
protections afforded in the constitution and to prevent any of
the branches from potentially exercising illegitimate power over
the other. As a result, we are not bound by the Legislature's
interpretation of a statute. Such questions of law have always
been within the province of the judicial branch.
We nevertheless conclude that the Legislature is entitled
to substantial deference when it exercises its constitutional
power to invalidate an administrative rule or regulation
pursuant to the Legislative Review Clause. We do so because the
legislative process for invalidating an administrative rule or
regulation, established pursuant to the Legislative Review
Clause, is procedurally rigorous, substantively precise, and
most importantly, the Legislature possesses general expertise in
the field of lawmaking.
22 A-4912-13T3 We retain our authority, however, to review the
Legislature's findings and conclusions to ensure the Legislature
has validly exercised its veto power under the Legislative
Review Clause, by invalidating the rule or regulation, rather
than passing new legislation, subject to the presentment clause.
We therefore hold that we may reverse the Legislature's
invalidation of an administrative executive rule or regulation
if (1) the Legislature has not complied with the procedural
requirements of the Legislative Review Clause; (2) its action
violates the protections afforded by the Federal or New Jersey
Constitution; or (3) the Legislature's concurrent resolution
amounts to a patently erroneous interpretation of "the language
of the statute which the rule or regulation is intended to
implement."
At least one other jurisdiction with even stronger language
than that which appears in the Legislative Review Clause has
likewise persuasively held that the judiciary is not precluded
from reviewing the Legislature's veto power. For example, the
Iowa constitution includes a broad provision allowing for
nullification of administrative rules, which states that "[t]he
general assembly may nullify an adopted administrative rule of a
state agency by the passage of a resolution by a majority of all
of the members of each house of the general assembly." Iowa
23 A-4912-13T3 Const. art. III, § 40. The Iowa Supreme Court found that this
provision did not preclude judicial review to determine if its
legislative branch violated the law by invalidating an
administrative rule or regulation. Iowa Fed'n of Labor v. Iowa
Dep't of Job Service, 427 N.W. 2d 443, 447 (1988) (stating
"[g]iven th[e] importance of the judiciary's oversight of agency
rules, we doubt that article III, section 40 was intended to
eliminate one of the three important checks over an agency's
power to legislate").
IV.
When reviewing a Legislative determination that an
administrative rule or regulation contravenes the "language of
the statute which the rule or regulation is intended to
implement," we first analyze whether the Legislature complied
with procedural requirements outlined in the Legislative Review
Clause. N.J. Const. art. V, § 4, ¶ 6. Thereafter we afford the
Legislature's conclusions and findings substantial deference,
keeping in mind that the judiciary is the ultimate arbiter of
questions of law.
(i)
Here, the Legislature complied with the procedural
requirements imposed by the Legislative Review Clause on two
occasions. First, the Legislature passed ACR-199 after the CSC
24 A-4912-13T3 proposed the Rule. In mid-December 2013, the CSC proposed a
First Amended Proposed Rule, and in January 2014, the
Legislature passed concurrent resolution ACR-215 to invalidate
it. Although the CSC purportedly amended the Proposed Rule, the
amendments did not alter the Rule's omission of competitive
examinations in job banding.
Second, the Legislature passed SCR-116, which mirrored ACR-
199, in June 2014. The Legislature stated that the job banding
regulations were still inconsistent with legislative intent and
"[a]ny amended rule that contains a job banding provision or
elimination of competitive promotional examinations shall be
deemed by the Legislature as violating Article VII, [§ 1, ¶] 2
of the Constitution of the State of New Jersey and the Civil
Service Act[.]" After the CSC introduced a purported Second
Amended Proposed Rule in July 2014, which still eliminated
competitive promotional examinations for job banding, the
Legislature passed ACR-192.
We reject the CSC's contention that its amendments to the
Proposed Rule required the Legislature to begin the veto
procedural process anew. The Legislature correctly invalidated
the Proposed Rule, and the amendments consistently ignored the
Legislature's steadfast substantive objection to job banding
without competitive promotional examinations.
25 A-4912-13T3 (ii)
The Legislature determined that the Rule conflicts with the
long-standing law in New Jersey requiring that appointment and
promotions for the civil service in the competitive division
shall be accomplished to ensure equal employment opportunity and
shall be made according to merit and fitness, which is
ascertained, as far as practicable, by competitive examination.
That determination by the Legislature does not amount to a
patently erroneous interpretation of the language of the CSA.
Applying substantial deference to the Legislature, we discern no
reason to disagree with the Legislature's determination.
In 1986, the Legislature found and declared the public
policy regarding state employees. In N.J.S.A. 11A:1-2, the
Legislature explicitly stated:
a. It is the public policy of this State to select and advance employees on the basis of their relative knowledge, skills and abilities;
b. It is the public policy of this State to provide public officials with appropriate appointment, supervisory and other personnel authority to execute properly their constitutional and statutory responsibilities;
c. It is the public policy of this State to encourage and reward meritorious performance by employees in the public service and to retain and separate employees on the basis of the adequacy of their performance;
26 A-4912-13T3 d. It is the public policy of this State to ensure equal employment opportunity at all levels of the public service; and
e. It is the public policy of this State to protect career public employees from political coercion and to ensure the recognition of such bargaining and other rights as are secured pursuant to other statutes and the collective negotiations law.
The Legislature recognized that the Constitution of the State of
New Jersey specifically addressed appointments and promotions of
public employees. N.J. Const. art. VII, § 1, ¶ 2 states:
Appointments and promotions in the civil service of the State, and of such political subdivisions as may be provided by law, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive; except that preference in appointments by reason of active service in any branch of the military or naval forces of the United States in time of war may be provided by law.
[(Emphasis added).]
Consequently, in 1993, the Legislature made further
findings and declarations as to civil service, classification,
and compensation of public employees. In N.J.S.A. 11A:3-2.1,
the Legislature stated:
a. the importance of fairness and impartiality in State employment is recognized in Article VII, Section I, paragraph 2 of the New Jersey Constitution
27 A-4912-13T3 which provides that, "Appointments and promotions in the civil service of the State shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive";
b. nevertheless, the framers recognized that appointments to certain types of employment are not readily made through a competitive examination process;
c. accordingly, in implementing the constitutional provision, the Legislature has provided in N.J.S.[A.] 11A:3-2 that the career service shall have a competitive division and a noncompetitive division;
d. it was the purpose of the Legislature, in making this distinction, to provide for positions which cannot properly be tested for, such as lower-level jobs which do not require significant education or experience, to be filled without the need of competitive examination but with civil service protection for the employee;
e. however, recent published reports suggest that the purpose of the noncompetitive division has been subverted by the transfer into that division of titles which properly belong in the unclassified service or in the competitive division of the career service, and the making of appointments thereto;
f. the apparent reason for this misuse of the noncompetitive division is to protect political appointees prior to the beginning of a new administration; and
g. in order to prevent this abuse of the civil service system, there is need for a statutory prohibition on the movement of job titles and political appointees to the
28 A-4912-13T3 noncompetitive division of the career service during the final six months of the Governor's term in office.
On the subject of competitive examinations, N.J.S.A. 11A:4-1
states that the CSC shall provide for:
a. The announcement and administration of examinations which shall test fairly the knowledge, skills and abilities required to satisfactorily perform the duties of a title or group of titles. The examinations may include, but are not limited to, written, oral, performance and evaluation of education and experience;
b. The rating of examinations;
c. The security of the examination process and appropriate sanctions for a breach of security;
d. The selection of special examiners to act as subject matter specialists or to provide other assistance. Employees of the State or political subdivisions may be so engaged as part of their official duties during normal working hours with the approval of their appointing authority. Extra compensation may be provided for such service outside normal working hours; and
e. The right to appeal adverse actions relating to the examination and appointment process, which shall include but not be limited to rejection of an application, failure of an examination and removal from an eligible list.
Furthermore, the CSC must meet certain certification and
appointment obligations expressed in N.J.S.A. 11A:4-8, which
provides that
29 A-4912-13T3 The [CSC] shall certify the three eligibles who have received the highest ranking on an open competitive or promotional list against the first provisional or vacancy. For each additional provisional or vacancy against whom a certification is issued at that time, the [CSC] shall certify the next ranked eligible. If more than one eligible has the same score, the tie shall not be broken and they shall have the same rank. If three or more eligibles can be certified as the result of the ranking without resorting to all three highest scores, only those eligibles shall be so certified.
A certification that contains the names of at least three interested eligibles shall be complete and a regular appointment shall be made from among those eligibles. An eligible on an incomplete list shall be entitled to a provisional appointment if a permanent appointment is not made.
Eligibles on any type of reemployment list shall be certified and appointed in the order of their ranking and the certification shall not be considered incomplete.
Thus, the appointment and promotions of the civil service
of New Jersey must be made based on merit and fitness except if
impracticable. Recognizing that not all types of employment are
readily discerned through a competitive examination process, the
Legislature declared in N.J.S.A. 11A:3-2, that career service
"shall have two divisions, the competitive division and the
noncompetitive division." It is therefore well-established, and
consistent with N.J. Const. art. VII, § 1, ¶ 2, that
appointments and promotions of public employees in the civil
30 A-4912-13T3 service "shall be . . . ascertained, as far as practicable, by
examination[.]"
It is undisputed that competitive examinations have been
used for years to test the merit and fitness of persons in the
State's competitive service. This practice indicates that it is
practicable to use such examinations for promotions in the
competitive service, and if not, the CSC has the authority to
move the title to the non-competitive service.
We therefore conclude that the Legislature validly
exercised its authority under the Legislative Review Clause and
invalidated the Rule. The Legislature's findings and
conclusions, contained in its numerous concurrent resolutions,
comply with the procedural requirements of the Legislative
Review Clause, and do not violate constitutional protections, or
do not amount to a patently erroneous interpretation of "the
language of the statute which the rule or regulation is intended
to implement." The Legislature reasonably found that job
banding without competitive promotional examinations was
inconsistent with the legislative intent reflected in the plain
language of the relevant provisions of the CSA.
We therefore reverse the decisions and vacate the
implementation of the Rule, including the subsequent amendments.
31 A-4912-13T3