NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1649-16T2
IN THE MATTER OF ANNA DELANEY, DEPARTMENT OF LAW AND PUBLIC SAFETY. ___________________________
Argued April 30, 2018 - Decided June 18, 2018
Before Judges Accurso and O'Connor.
On appeal from the New Jersey Civil Service Commission, Docket Nos. 2015-1255 and 2016- 1528.
Walter R. Bliss, Jr., argued the cause for appellant Anna Delaney.
Pamela N. Ullman, Deputy Attorney General, argued the cause for respondent New Jersey Civil Service Commission (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Pamela N. Ullman, on the brief).
PER CURIAM
Anna Delaney appeals from an August 3, 2015 final agency
decision of the Civil Service Commission and a November 29, 2016
decision denying her request for reconsideration. As Delaney
has not demonstrated either decision was arbitrary, capricious
or unreasonable, we affirm. Following the 2012 open-competitive examination for the
title of Forensic Scientist I, LPS, Delaney was tied with one
other person at rank 19 on a list of 36 eligibles. Although the
posting announcing the examination stated only thirteen
positions were available, Delaney's name was included on three
different certifications issued by the Commission. See N.J.A.C.
4A:4-4.2(a). Each time, however, the Department of Law and
Public Safety, the appointing authority, selected one of the
other names on the certification pursuant to the "Rule of
Three." See N.J.S.A. 11A:4-8. Those individuals received
regular appointments effective December 15, 2012.
Delaney filed a grievance claiming she was more qualified
than two other individuals hired off the list, one ranked 17 and
the other 22, that she was advised that she could not resign
from her current title of Senior Laboratory Technician and be
re-hired as a Forensic Scientist I (a "resignation/pickup"),
although this was done for another individual on the list, and
that the Director of the Office of Forensic Science and the
Chief Forensic Scientist told her she had been approved for
promotion to Forensic Scientist I but she had "received nothing
in writing." Delaney requested she be promoted to Forensic
Scientist I retroactive to the date "that the other individuals
on the list were hired" with an appropriate salary adjustment.
2 A-1649-16T2 Delaney and the Department settled her grievance with an
agreement providing she would be provisionally appointed,
pending promotional procedures, to Forensic Scientist I
effective March 23, 2013, and would receive a regular
appointment to the title effective April 3, 2014. The parties
further agreed that Delaney's complaints about the Department's
failure to appoint her from the eligibility list with a
resignation/pickup and her request for a retroactive appointment
would remain open pending a determination by the Commission.
Delaney received provisional and regular appointments
pursuant to the agreement and appealed the grievance
determination through her union to the Commission. Delaney's
union representative argued the Department's denial of a
resignation/pickup resulted in Delaney's promotion being delayed
three months and because "her permanent date is not the same as
the other newly hired employees, this creates a severe
disadvantage in title seniority and eligibility for the next
promotional Forensic Scientist 2 position." The union also
asserted Delaney "was placed in the first step of Range 25
because the appointment was considered a promotion," while other
new hires were placed in higher steps. The union argued that
had Delaney "been granted the resignation/pickup, she would have
the same seniority date as the other 19 individuals and would
3 A-1649-16T2 have been placed in a higher step of the range." The union
stated it was "appealing to the Commission to relax any rule
that would allow Ms. Delaney's appointment to the Forensic
Scientist I title be retroactive with pay to the same permanent
date as the other employees hired off the open competitive list
on December 15, 2012 and be placed in step 3 of Range 25."
The Commission denied Delaney's appeal. First, the
Commission explained that even had Delaney been appointed from
the eligible list, N.J.A.C. 4A:3-4.9 and N.J.A.C. 4A:4-7.9(a)
establish that she would be treated as if she were being
promoted, resulting in a salary increase equal to at least one
increment in the salary range of her old title plus the amount
necessary to place her on the next higher step in the new range;
that is, step one of salary range 25, exactly as calculated.
Thus, the Commission explained, Delaney would have received the
exact same salary even had she been appointed off the open
competitive list as a resignation/pickup.
Second, the Commission found no basis for a retroactive
appointment under N.J.A.C. 4A:4-1.10(c). The Commission
explained that retroactive appointment authorized by regulation
is reserved for two particular situations: where the employee
was actually serving in and performing the duties of the title
but due to some error or other good cause, her attainment of
4 A-1649-16T2 permanent status was delayed or hindered; or where an employee,
"whose appointment would have otherwise been mandated, was
improperly removed from or bypassed on an eligible list, thereby
preventing" her appointment. The Commission found nothing to
suggest Delaney was performing the duties of a Forensic
Scientist I prior to her provisional appointment.
The Commission also found no evidence to support Delaney's
claim she was improperly bypassed on the eligible list.
Although acknowledging Delaney's assertion that she was "better
qualified" than other individuals selected, the Commission noted
that N.J.S.A. 11A:4-8, N.J.S.A. 11A:5-7 and N.J.A.C. 4A:4-
4.8(a)(3)(ii) expressly permit an appointing authority to select
from among the top three interested eligibles on an open
competitive or promotional list, provided no veteran heads the
list. The Commission further noted that at the time of these
events, N.J.A.C. 4A:4-4.8 no longer required an appointing
authority to even explain its reasons for choosing a lower
ranked eligible from the certification.1 See 44 N.J.R. 137(a)
(Jan. 17, 2012); 44 N.J.R. 1333(b) (May 7, 2012). Finding
Delaney had not carried her burden to show she was improperly
bypassed on the eligible list and was not entitled to a
1 The Commission amended N.J.A.C. 4A:4-4.8 to delete the requirement of a statement of reasons, effective May 7, 2012.
5 A-1649-16T2 retroactive appointment or higher salary, the Commission denied
Delaney's appeal. The Commission subsequently denied Delaney's
request for reconsideration, finding she "merely reiterate[d]
her [prior] arguments."
Delaney appeals, arguing she was improperly bypassed on the
open competitive list, the Commission's denial of a retroactive
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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-1649-16T2
IN THE MATTER OF ANNA DELANEY, DEPARTMENT OF LAW AND PUBLIC SAFETY. ___________________________
Argued April 30, 2018 - Decided June 18, 2018
Before Judges Accurso and O'Connor.
On appeal from the New Jersey Civil Service Commission, Docket Nos. 2015-1255 and 2016- 1528.
Walter R. Bliss, Jr., argued the cause for appellant Anna Delaney.
Pamela N. Ullman, Deputy Attorney General, argued the cause for respondent New Jersey Civil Service Commission (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Pamela N. Ullman, on the brief).
PER CURIAM
Anna Delaney appeals from an August 3, 2015 final agency
decision of the Civil Service Commission and a November 29, 2016
decision denying her request for reconsideration. As Delaney
has not demonstrated either decision was arbitrary, capricious
or unreasonable, we affirm. Following the 2012 open-competitive examination for the
title of Forensic Scientist I, LPS, Delaney was tied with one
other person at rank 19 on a list of 36 eligibles. Although the
posting announcing the examination stated only thirteen
positions were available, Delaney's name was included on three
different certifications issued by the Commission. See N.J.A.C.
4A:4-4.2(a). Each time, however, the Department of Law and
Public Safety, the appointing authority, selected one of the
other names on the certification pursuant to the "Rule of
Three." See N.J.S.A. 11A:4-8. Those individuals received
regular appointments effective December 15, 2012.
Delaney filed a grievance claiming she was more qualified
than two other individuals hired off the list, one ranked 17 and
the other 22, that she was advised that she could not resign
from her current title of Senior Laboratory Technician and be
re-hired as a Forensic Scientist I (a "resignation/pickup"),
although this was done for another individual on the list, and
that the Director of the Office of Forensic Science and the
Chief Forensic Scientist told her she had been approved for
promotion to Forensic Scientist I but she had "received nothing
in writing." Delaney requested she be promoted to Forensic
Scientist I retroactive to the date "that the other individuals
on the list were hired" with an appropriate salary adjustment.
2 A-1649-16T2 Delaney and the Department settled her grievance with an
agreement providing she would be provisionally appointed,
pending promotional procedures, to Forensic Scientist I
effective March 23, 2013, and would receive a regular
appointment to the title effective April 3, 2014. The parties
further agreed that Delaney's complaints about the Department's
failure to appoint her from the eligibility list with a
resignation/pickup and her request for a retroactive appointment
would remain open pending a determination by the Commission.
Delaney received provisional and regular appointments
pursuant to the agreement and appealed the grievance
determination through her union to the Commission. Delaney's
union representative argued the Department's denial of a
resignation/pickup resulted in Delaney's promotion being delayed
three months and because "her permanent date is not the same as
the other newly hired employees, this creates a severe
disadvantage in title seniority and eligibility for the next
promotional Forensic Scientist 2 position." The union also
asserted Delaney "was placed in the first step of Range 25
because the appointment was considered a promotion," while other
new hires were placed in higher steps. The union argued that
had Delaney "been granted the resignation/pickup, she would have
the same seniority date as the other 19 individuals and would
3 A-1649-16T2 have been placed in a higher step of the range." The union
stated it was "appealing to the Commission to relax any rule
that would allow Ms. Delaney's appointment to the Forensic
Scientist I title be retroactive with pay to the same permanent
date as the other employees hired off the open competitive list
on December 15, 2012 and be placed in step 3 of Range 25."
The Commission denied Delaney's appeal. First, the
Commission explained that even had Delaney been appointed from
the eligible list, N.J.A.C. 4A:3-4.9 and N.J.A.C. 4A:4-7.9(a)
establish that she would be treated as if she were being
promoted, resulting in a salary increase equal to at least one
increment in the salary range of her old title plus the amount
necessary to place her on the next higher step in the new range;
that is, step one of salary range 25, exactly as calculated.
Thus, the Commission explained, Delaney would have received the
exact same salary even had she been appointed off the open
competitive list as a resignation/pickup.
Second, the Commission found no basis for a retroactive
appointment under N.J.A.C. 4A:4-1.10(c). The Commission
explained that retroactive appointment authorized by regulation
is reserved for two particular situations: where the employee
was actually serving in and performing the duties of the title
but due to some error or other good cause, her attainment of
4 A-1649-16T2 permanent status was delayed or hindered; or where an employee,
"whose appointment would have otherwise been mandated, was
improperly removed from or bypassed on an eligible list, thereby
preventing" her appointment. The Commission found nothing to
suggest Delaney was performing the duties of a Forensic
Scientist I prior to her provisional appointment.
The Commission also found no evidence to support Delaney's
claim she was improperly bypassed on the eligible list.
Although acknowledging Delaney's assertion that she was "better
qualified" than other individuals selected, the Commission noted
that N.J.S.A. 11A:4-8, N.J.S.A. 11A:5-7 and N.J.A.C. 4A:4-
4.8(a)(3)(ii) expressly permit an appointing authority to select
from among the top three interested eligibles on an open
competitive or promotional list, provided no veteran heads the
list. The Commission further noted that at the time of these
events, N.J.A.C. 4A:4-4.8 no longer required an appointing
authority to even explain its reasons for choosing a lower
ranked eligible from the certification.1 See 44 N.J.R. 137(a)
(Jan. 17, 2012); 44 N.J.R. 1333(b) (May 7, 2012). Finding
Delaney had not carried her burden to show she was improperly
bypassed on the eligible list and was not entitled to a
1 The Commission amended N.J.A.C. 4A:4-4.8 to delete the requirement of a statement of reasons, effective May 7, 2012.
5 A-1649-16T2 retroactive appointment or higher salary, the Commission denied
Delaney's appeal. The Commission subsequently denied Delaney's
request for reconsideration, finding she "merely reiterate[d]
her [prior] arguments."
Delaney appeals, arguing she was improperly bypassed on the
open competitive list, the Commission's denial of a retroactive
date for her appointment was arbitrary and capricious and she is
entitled to a "plenary hearing on genuine issues of material
fact raised by appellant's appeals." Our review of the record
convinces us that none of these arguments is of sufficient merit
to warrant extended discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Our role in reviewing the decision of an administrative
agency is, of course, limited. In re Carter, 191 N.J. 474, 482
(2007). We accord a strong presumption of reasonableness to an
agency's exercise of its statutorily delegated responsibility,
City of Newark v. Nat. Res. Council, Dep't of Envtl. Prot., 82
N.J. 530, 539, cert. denied, 449 U.S. 983 (1980), and "give
great deference to an agency's interpretation of statutes within
its scope of authority and its adoption of rules implementing
the laws for which it is responsible," Hargrove v. Sleepy's,
LLC, 220 N.J. 289, 302 (2015) (internal quotation marks
omitted). We will not upset the determination of an
6 A-1649-16T2 administrative agency absent a showing it was arbitrary,
capricious, or unreasonable; that it lacked fair support in the
evidence; or it violated legislative policies. In re
Stallworth, 208 N.J. 182, 194 (2011); Campbell v. Dep't of Civil
Serv., 39 N.J. 556, 562 (1963).
Applying those standards here, we find no basis to reverse
the Commission's decision. Delaney does not contest the
Commission's analysis of the regulations that establish her
salary would have been exactly the same whether hired off a
promotional list pursuant to a grievance settlement as she was
or off the open competitive list on which she ranked 19 of 36
eligibles. The delay in her appointment did not adversely
affect her eligibility to sit for the promotional examination
for Forensic Scientist 2 with the employees hired off the open
competitive list. None of those appointed had the one year in
title required when the announcement for Forensic Scientist 2
was made in September 2013 and there was no further announcement
for the title during any period in which she would have been at
a disadvantage vis-á-vis those employees appointed three months
before she was.
As for her claim that the record contains no "substantive
explanation by the Department or the Commission as to why the
Department bypassed [Delaney] on the open competitive list and
7 A-1649-16T2 then agreed to hire her in the title by means of a 'promotion'"
via a grievance settlement, none was required. Delaney
acknowledges the law is well settled that "[n]o right accrues to
a candidate whose name is placed on an eligible list," In re
Foglio, 207 N.J. 38, 44 (2011), and that "the 'rule of three'
accommodates the exercise of a broad discretion in hiring,"
Terry v. Mercer Cty. Bd. of Chosen Freeholders, 86 N.J. 141, 150
(1981). We agree with the Commission that Delaney failed to
carry her burden to establish the Department unlawfully failed
to appoint her from the eligibility list entitling her to a
retroactive appointment. See N.J.A.C. 4A:2-1.4(c). The issues
being legal ones, and Delaney having never requested an
evidentiary hearing, we find no error in the Commission's
decision to hear the matter on the written record. See N.J.A.C.
4A:2-1.1(d); In re Wiggins, 242 N.J. Super. 342, 345 (App. Div.
1990).
Affirmed.
8 A-1649-16T2