NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0053-15T1
IN THE MATTER OF ANDREA STUMPF, DEPARTMENT OF HUMAN SERVICES. ________________________________
Argued June 1, 2017 – Decided July 17, 2017
Before Judges Whipple and Mawla.
On appeal from Civil Service Commission, Docket Nos. 2015-1444, 2015-2658 and 2015- 2872.
Sarai K. King argued the cause for appellant Andrea Stumpf (Weissman & Mintz, L.L.C., attorneys; Ms. King, on the briefs).
Pamela N. Ullman, Deputy Attorney General, argued the cause for respondent Civil Service Commission (Christopher S. Porrino, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Ms. Ullman, on the brief).
PER CURIAM
Petitioner Andrea Stumpf appeals from a July 16, 2015 Final
Administrative Action of the Civil Service Commission (Commission)
denying her job reclassification and requiring her to refund a salary overpayment. For the reasons that follow, we affirm in
part and reverse in part.
Petitioner worked at the New Jersey Department of Human
Services (DHS) as a principal clerk typist beginning in 2003. On
February 19, 2005, petitioner was provisionally appointed as an
Administrative Analyst 4 (AA4), pending promotional examination
procedures. A 2008 audit revealed petitioner was actually
performing the duties of a Technical Assistant 3 (TA3), therefore,
the Commission reclassified her as a TA3 effective May 24, 2008.
Petitioner challenged the reclassification, arguing she was
in fact performing the duties of an AA4. The Division of State
and Local Operations of the Commission found petitioner's
assertion unsubstantiated and upheld the reclassification;
however, recognizing the financial hardship as a result of the
reclassification, the effective date of petitioner's
reclassification was set as May 9, 2009. The decision was upheld
by the full Commission on December 16, 2009.
Petitioner was on maternity leave when the order issued. DHS
did not implement the title change after the Commission's decision
and maintained petitioner as an AA4 after she returned. Petitioner
was provisionally assigned as an AA4 to a different unit within
DHS, effective October 8, 2011. DHS and petitioner took no action
relating to her title until she applied to take a promotional
2 A-0053-15T1 examination for the AA4 title in 2012. Although she was
provisionally placed in the AA4 title, she was not qualified to
take the examination. Petitioner appealed the ineligibility
determination and the Commission determined she was ineligible,
as DHS should have reclassified petitioner to a TA3 in 2009. As
a result, the Commission ordered a reclassification review of
petitioner's position on October 16, 2013.
Around the same time, petitioner applied for the open
competition examination for AA4, but because of educational
deficiencies, was again found ineligible on December 4, 2013.
Because the Commission had already referred petitioner's title for
reclassification, it deferred to the pending audit. The Commission
ruled petitioner's proper classification was TA3. The Commission
alerted petitioner she was overpaid since February 19, 2005;
however, because the classification determination was not issued
until 2009 and for equitable considerations, it set the
reclassification date to December 19, 2009, the starting date of
the pay period following the December 4, 2009 decision. The
decision also advised petitioner she could seek a waiver of the
salary overpayment if she could satisfy the factors outlined in
N.J.A.C. 4A:3-4.21.
Petitioner moved for reconsideration of the Commission's
December 4, 2013 decision denying her eligibility for the AA4
3 A-0053-15T1 examination and requested a waiver of the salary overpayment. On
May 27, 2014, the Commission denied reconsideration of the
eligibility for the AA4 examination and rejected the waiver
request. It found petitioner failed to demonstrate an
administrative error of which she was unaware and found the factors
of N.J.A.C. 4A:3-4.21 were not met based upon the lack of evidence
repayment constituted a hardship. Petitioner was reclassified as
a TA3, pending the outcome of the ongoing audit.
DHS did not comply with the Commission's order to reclassify
petitioner until November 28, 2014. DHS submitted a current
Position Classification Questionnaire (PSQ), current Performance
Assessment Review and organizational chart to the Commission.
Additionally, DHS, along with petitioner, submitted a request for
rule relaxation to the Commission, which was treated as a request
for reconsideration of the waiver for the salary overpayment. The
Commission initially denied DHS's request for reconsideration
because it was outside the forty-five day time limit. DHS
subsequently re-submitted information addressing the untimeliness
of the request.
The Division of Agency Services (Division) clarified its
determination on April 2, 2015, finding petitioner's current
duties and responsibilities commensurate with the title AA4,
effective December 13, 2014. Petitioner appealed the Division's
4 A-0053-15T1 determination as to only the date, arguing she should had been
working as an AA4 provisionally since October 8, 2011.
The Commission consolidated the two pending appeals, the
appeal of the request for reconsideration of the overpayment waiver
and the classification appeal, and issued a decision on July 16,
2015, denying the request for reconsideration of the repayment
waiver and upholding the December 13, 2014 reclassification date.
These appeals followed.
The scope of our review of an administrative agency
determination is limited. Circus Liquors, Inc. v Governing Body
of Middletown Twp., 199 N.J. 1, 9 (2009). We do not ordinarily
disturb an administrative agency's determination 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
credible evidence. See McGowan v. N.J. State Parole Bd., 347 N.J.
Super. 544, 563 (App. Div. 2002). Furthermore, we defer to the
expertise of an agency charged with the responsibility to
administer a regulatory scheme. In re Virtua-West Jersey Hosp.
Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008).
We first address petitioner's challenge to the Commission's
reclassification decision. Petitioner argues the evidence
supports the conclusion she was performing AA4 duties since October
5 A-0053-15T1 8, 2011, and to penalize her for the actions of her employer is
arbitrary and capricious. After reviewing the record, we find the
Commission's reclassification decision is supported by sufficient
credible evidence in the record. Despite petitioner performing
duties commensurate to the AA4 position, she did not have the
qualifications necessary to hold the AA4 position. Therefore, the
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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-0053-15T1
IN THE MATTER OF ANDREA STUMPF, DEPARTMENT OF HUMAN SERVICES. ________________________________
Argued June 1, 2017 – Decided July 17, 2017
Before Judges Whipple and Mawla.
On appeal from Civil Service Commission, Docket Nos. 2015-1444, 2015-2658 and 2015- 2872.
Sarai K. King argued the cause for appellant Andrea Stumpf (Weissman & Mintz, L.L.C., attorneys; Ms. King, on the briefs).
Pamela N. Ullman, Deputy Attorney General, argued the cause for respondent Civil Service Commission (Christopher S. Porrino, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Ms. Ullman, on the brief).
PER CURIAM
Petitioner Andrea Stumpf appeals from a July 16, 2015 Final
Administrative Action of the Civil Service Commission (Commission)
denying her job reclassification and requiring her to refund a salary overpayment. For the reasons that follow, we affirm in
part and reverse in part.
Petitioner worked at the New Jersey Department of Human
Services (DHS) as a principal clerk typist beginning in 2003. On
February 19, 2005, petitioner was provisionally appointed as an
Administrative Analyst 4 (AA4), pending promotional examination
procedures. A 2008 audit revealed petitioner was actually
performing the duties of a Technical Assistant 3 (TA3), therefore,
the Commission reclassified her as a TA3 effective May 24, 2008.
Petitioner challenged the reclassification, arguing she was
in fact performing the duties of an AA4. The Division of State
and Local Operations of the Commission found petitioner's
assertion unsubstantiated and upheld the reclassification;
however, recognizing the financial hardship as a result of the
reclassification, the effective date of petitioner's
reclassification was set as May 9, 2009. The decision was upheld
by the full Commission on December 16, 2009.
Petitioner was on maternity leave when the order issued. DHS
did not implement the title change after the Commission's decision
and maintained petitioner as an AA4 after she returned. Petitioner
was provisionally assigned as an AA4 to a different unit within
DHS, effective October 8, 2011. DHS and petitioner took no action
relating to her title until she applied to take a promotional
2 A-0053-15T1 examination for the AA4 title in 2012. Although she was
provisionally placed in the AA4 title, she was not qualified to
take the examination. Petitioner appealed the ineligibility
determination and the Commission determined she was ineligible,
as DHS should have reclassified petitioner to a TA3 in 2009. As
a result, the Commission ordered a reclassification review of
petitioner's position on October 16, 2013.
Around the same time, petitioner applied for the open
competition examination for AA4, but because of educational
deficiencies, was again found ineligible on December 4, 2013.
Because the Commission had already referred petitioner's title for
reclassification, it deferred to the pending audit. The Commission
ruled petitioner's proper classification was TA3. The Commission
alerted petitioner she was overpaid since February 19, 2005;
however, because the classification determination was not issued
until 2009 and for equitable considerations, it set the
reclassification date to December 19, 2009, the starting date of
the pay period following the December 4, 2009 decision. The
decision also advised petitioner she could seek a waiver of the
salary overpayment if she could satisfy the factors outlined in
N.J.A.C. 4A:3-4.21.
Petitioner moved for reconsideration of the Commission's
December 4, 2013 decision denying her eligibility for the AA4
3 A-0053-15T1 examination and requested a waiver of the salary overpayment. On
May 27, 2014, the Commission denied reconsideration of the
eligibility for the AA4 examination and rejected the waiver
request. It found petitioner failed to demonstrate an
administrative error of which she was unaware and found the factors
of N.J.A.C. 4A:3-4.21 were not met based upon the lack of evidence
repayment constituted a hardship. Petitioner was reclassified as
a TA3, pending the outcome of the ongoing audit.
DHS did not comply with the Commission's order to reclassify
petitioner until November 28, 2014. DHS submitted a current
Position Classification Questionnaire (PSQ), current Performance
Assessment Review and organizational chart to the Commission.
Additionally, DHS, along with petitioner, submitted a request for
rule relaxation to the Commission, which was treated as a request
for reconsideration of the waiver for the salary overpayment. The
Commission initially denied DHS's request for reconsideration
because it was outside the forty-five day time limit. DHS
subsequently re-submitted information addressing the untimeliness
of the request.
The Division of Agency Services (Division) clarified its
determination on April 2, 2015, finding petitioner's current
duties and responsibilities commensurate with the title AA4,
effective December 13, 2014. Petitioner appealed the Division's
4 A-0053-15T1 determination as to only the date, arguing she should had been
working as an AA4 provisionally since October 8, 2011.
The Commission consolidated the two pending appeals, the
appeal of the request for reconsideration of the overpayment waiver
and the classification appeal, and issued a decision on July 16,
2015, denying the request for reconsideration of the repayment
waiver and upholding the December 13, 2014 reclassification date.
These appeals followed.
The scope of our review of an administrative agency
determination is limited. Circus Liquors, Inc. v Governing Body
of Middletown Twp., 199 N.J. 1, 9 (2009). We do not ordinarily
disturb an administrative agency's determination 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
credible evidence. See McGowan v. N.J. State Parole Bd., 347 N.J.
Super. 544, 563 (App. Div. 2002). Furthermore, we defer to the
expertise of an agency charged with the responsibility to
administer a regulatory scheme. In re Virtua-West Jersey Hosp.
Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008).
We first address petitioner's challenge to the Commission's
reclassification decision. Petitioner argues the evidence
supports the conclusion she was performing AA4 duties since October
5 A-0053-15T1 8, 2011, and to penalize her for the actions of her employer is
arbitrary and capricious. After reviewing the record, we find the
Commission's reclassification decision is supported by sufficient
credible evidence in the record. Despite petitioner performing
duties commensurate to the AA4 position, she did not have the
qualifications necessary to hold the AA4 position. Therefore, the
Commission's decision to reclassify petitioner, effective May 9,
2009, was not arbitrary or capricious.
As to the denial of the waiver, we are persuaded the
Commission erred as the record reflects petitioner detrimentally
relied upon her employer and took reasonable efforts to apply for
examinations for the AA4 position. While our review of an agency's
determination is circumscribed, we do not simply "rubber stamp
findings that are not reasonably supported by the evidence[.]"
Chou v. Rutgers, State Univ., 283 N.J. Super. 524, 539 (App. Div.
1995), certif. denied, 145 N.J. 374 (1996). We do not find the
denial of petitioner's waiver of an obligation to repay an
overpayment of salary reasonably supported by the evidence.
The Commission will grant a waiver, in whole or in part,
after considering:
1. The circumstances and amount of the overpayment were such that an employee could reasonably have been unaware of the error;
6 A-0053-15T1 2. The overpayment resulted from a specific administrative error, and was not due to mere delay in processing a change in pay status;
3. The terms of the repayment schedule would result in economic hardship to the employee.
[N.J.A.C. 4A:3-4.21(a).]
In the present case, petitioner was asked to pay an
overpayment amount of approximately $42,000. Petitioner argues
the Commission failed to consider she was not responsible for the
administrative errors made by her employer and the legitimate
economic hardship she would face if forced to repay $42,000.
"Courts are generally reluctant to apply estoppel theories
against government agencies." Cipriano v. Dept. of Civil Serv.,
151 N.J. Super. 86, 91 (App. Div. 1977) (citing Summer Cottagers'
Ass'n of Cape May v. City of Cape May, 19 N.J. 493, 503 (1955)).
However, "[w]hen an agency misrepresents the effect of a
determination under circumstances calculated to induce reliance
by reasonable persons to their detriment, the agency may be
estopped to prevent a manifest injustice." In re Johnson, 215
N.J. 366, 386 (2013) (citing Horsemen's Benevolent & Protective
Ass'n v. Atl. City Racing Ass'n, 98 N.J. 445, 456 (1985)).
As to N.J.A.C. 4A:3-4.21(a)(1), petitioner relied on DHS's
determination her assignment as an AA4 in a different unit
satisfied the Commission's decision. Based upon DHS's action,
7 A-0053-15T1 petitioner could reasonably have been unaware she was being
overpaid. Additionally, the overpayment resulted from a specific
administrative error. See N.J.A.C. 4A:3-4.21(a)(2). Petitioner
detrimentally relied upon DHS, as evidenced by DHS's failure to
submit the 2011 PSQ detailing her duties being commensurate with
an AA4. Additionally, when petitioner returned from maternity
leave, DHS moved her position to a different unit, as an AA4, and
therefore she detrimentally relied upon their assurances the new
position was consistent with the Commission's December 2009
decision. As such, the overpayment was a result of DHS's
administrative error.
Lastly, requiring petitioner to repay $42,000 would result
in an economic hardship. The Commission's rationale for finding
no economic hardship relied upon petitioner's family expenditures
for non-essential items including, $415 for entertainment, $108
for recreation, and $28.50 for dues and subscription. These modest
non-essential expenditures do not reflect an ability to repay
$42,000 without creating an economic hardship.
As such, we find the denial of petitioner's waiver request
to be arbitrary, capricious, and unreasonable. We therefore affirm
the Commission's decision as to the reclassification decision and
reverse the denial of petitioner's waiver request.
8 A-0053-15T1 Affirmed in part, reversed in part, consistent with this
opinion.
9 A-0053-15T1