NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5095-16T3
IN THE MATTER OF COUNTY CORRECTION CAPTAIN (PC1189P) AND COUNTY CORRECTION LIEUTENANT (PC1202P), HUDSON COUNTY. _______________________________
Submitted January 28, 2019 – Decided February 21, 2019
Before Judges Messano and Fasciale.
On appeal from the New Jersey Civil Service Commission, Docket No. 2017-2783.
Maria Gaines, Luis Oyola, and Robert Kalb Jr., appellants pro se.
Scarinci & Hollenbeck, LLC, attorneys for respondent County of Hudson (Sean D. Dias, on the statement in lieu of brief).
Gurbir S. Grewal, Attorney General, attorney for respondent Civil Service Commission (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Debra A. Allen, Deputy Attorney General, on the brief).
PER CURIAM Maria Gaines, Luis Oyola, and Robert Kalb (collectively appellants), who
are now retired, appeal from a June 12, 2017 final decision entered on remand
by the Civil Service Commission (the Commission). They argue primarily that
the Commission's decision is arbitrary because it failed to retroactively appoint
them to higher titles and award them corresponding back pay. We disagree,
conclude there exists sufficient credible evidence in the record to support the
decision, and affirm.
The County of Hudson (County) previously employed appellants. Oyola,
who retired as a Lieutenant, wanted a promotion to County Correction Captain
(Captain). Gaines and Kalb, who retired as Sergeants, wanted promotions to
County Correction Lieutenant (Lieutenant). Appellants never received the
promotions.
Before the remand, appellants challenged the eligibility requirements of
individuals who sat for the Captain and Lieutenant promotional examinations.
The County had rejected that challenge, and promoted three of eight individuals
on the list to Captain, and seven of twenty-four individuals on the list to
Lieutenant. The Commission upheld the promotions. Appellants appealed from
the Commission's upholding of the promotions arguing that the Commission
allowed individuals to sit for the examination, in violation of N.J.A.C. 4A:4-
A-5095-16T3 2 2.6(a)(1) (indicating that applicants for promotional examinations must have
"one year of continuous permanent service").
In part, we reversed for failure to comply with the principles underlying
the proper administration of working test periods. In the Matter of County
Correction Captain (PC1189P) and County Correction Lieutenant (PC1202P),
Hudson County, No. A-2162-14 (App. Div. Mar. 9, 2017) (slip op. at 9-10).
N.J.A.C. 4A:1-1.3 defines a working test period as "a part of the examination
process after regular appointment, during which time the work performance and
conduct of the employee is evaluated to determine if permanent status is
merited." The legislature has defined the purpose of the working test period to
give an appointing authority an opportunity "to determine whether an employee
satisfactorily performs the duties of a title." N.J.S.A. 11A:4-15. In our prior
opinion, we stated that there was
no evidence [that] indicated the County observed and evaluated the Applicants [who took the exams] during a working test period, prepared progress reports, or determined they satisfactorily performed the duties of their respective titles and successfully completed a working test period. Absent evidence that Applicants actually and successfully completed a working test period, the Commission could not presume they had done so.
A-5095-16T3 3 [In the Matter of County Correction Captain (PC1189P) and County Correction Lieutenant (PC1202P), Hudson County, slip op. at 10.]
In the prior appeal, we granted appellants' request for removal of various
applicants from the promotional lists. In so doing, we did not mandate that the
County appoint or promote appellants. Instead, we stated that – due to the
passage of time – "further measures may be necessary which should be
addressed in the first instance [by] the Commission." Id. at 18.
On remand, the Commission followed our instructions and removed the
names of various applicants from the lists of individuals who were eligible to
take the exams. And it reinstated the original titles for those who received
promotions. Under N.J.A.C. 4A:4-2.6(a)(2), the Commission then amended the
announcements for the promotions and extended the deadline for filing
applications, to allow proper testing for eligible candidates.
Appellants contend that their ranked positions on the eligible lists would
have guaranteed their promotions on remand. They say that once the
Commission removed the improperly promoted applicants from the eligible
lists, Oyola would have moved up on the Captains List from the fifth spot to the
second spot. And they assert that, on the Lieutenants list, Kalb would have
moved up from the seventh spot to the second spot, and Gaines would have
A-5095-16T3 4 moved from the tenth spot to the fifth spot. But, crucially, appellants had retired
after the other applicants were already promoted.
Thus, the Commission noted, as to appellants, that they were required to
"successfully complete a working test period" before they could be promoted to
a higher title. Like us, the Commission was unwilling to assume that appellants
would previously have successfully completed their respective working test
periods. That is so because the County did not "observe or evaluate [the
appellants] as evidenced by [any] progress reports." The Commission therefore
was unwilling to retroactively promote them.
On appeal, appellants raise the following arguments:
POINT I THE COMMIS[S]ION[']S DECISION WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE. ALL IMPACTED CANDIDATES WERE NOT A PART OF THE PROCEEDINGS[.]
POINT II THE CURRENT CANDIDATES ON THE ELIGIBILITY LIST[S] WERE NOT REPRESENTED IN THIS MATTER[.]
POINT III THE CIVIL SERVICE DECISION IS NARROWLY TAILORED TO ADVANCE THE APPOINTING AUTHORITIES AGENDA AND BARS THE APPELLANTS FROM RECOVERY[.]
A-5095-16T3 5 POINT IV APPEL[L]ANTS['] PROMOTIONS WERE NOT A POSSIBILITY BUT A CERTAINTY AS HUDSON COUNTY PROMOTES IN ORDER FROM THE LIST[S] – BUT FOR THE ACTIONS OF HUDSON COUNTY AND CIVIL SERVICE APPELLANTS WOULD HAVE BEEN PROMOTED[.]
POINT V HUDSON COUNTY'S OFFER TO MAKE APPELLANTS WHOLE SHOULD HAVE BEEN INCORPORATED INTO THE CIVIL SERVICE DECISION[.]
POINT VI THE APPELLATE DIVISION DECISION RESULTED IN NO MORE THAN AN INCONVENIENCE TO THE INELIG[IB]LE CANDIDATES BUT CAUSED [IRREPARABLE] HARM TO THE APPELLANTS[.]
POINT VII HUDSON COUNTY'S PROMOTIONAL PRACTICES ARE INDICATIVE OF ITS WILLINGNESS TO BEND, BREAK, STRETCH AND CHALLENGE THE RULES WHEN IT SUITS [ITS] NEEDS[.]
POINT VIII [APPELLANTS] ARE LEGALLY ENTITLED TO THE PROMOTIONS UNDER IN RE SNELLBAKER . . . AND HUDSON COUNTY HAD A LEGAL OBLIGATION TO PROMOTE[.]
Our review of a Commission's determination is limited. In re Stallworth,
208 N.J. 182, 194 (2011); see also Wnuck v. N.J. Div. of Motor Vehicles, 337
N.J. Super. 52, 56 (App. Div. 2001) (indicating that "[i]t is settled that [a]n
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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-5095-16T3
IN THE MATTER OF COUNTY CORRECTION CAPTAIN (PC1189P) AND COUNTY CORRECTION LIEUTENANT (PC1202P), HUDSON COUNTY. _______________________________
Submitted January 28, 2019 – Decided February 21, 2019
Before Judges Messano and Fasciale.
On appeal from the New Jersey Civil Service Commission, Docket No. 2017-2783.
Maria Gaines, Luis Oyola, and Robert Kalb Jr., appellants pro se.
Scarinci & Hollenbeck, LLC, attorneys for respondent County of Hudson (Sean D. Dias, on the statement in lieu of brief).
Gurbir S. Grewal, Attorney General, attorney for respondent Civil Service Commission (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Debra A. Allen, Deputy Attorney General, on the brief).
PER CURIAM Maria Gaines, Luis Oyola, and Robert Kalb (collectively appellants), who
are now retired, appeal from a June 12, 2017 final decision entered on remand
by the Civil Service Commission (the Commission). They argue primarily that
the Commission's decision is arbitrary because it failed to retroactively appoint
them to higher titles and award them corresponding back pay. We disagree,
conclude there exists sufficient credible evidence in the record to support the
decision, and affirm.
The County of Hudson (County) previously employed appellants. Oyola,
who retired as a Lieutenant, wanted a promotion to County Correction Captain
(Captain). Gaines and Kalb, who retired as Sergeants, wanted promotions to
County Correction Lieutenant (Lieutenant). Appellants never received the
promotions.
Before the remand, appellants challenged the eligibility requirements of
individuals who sat for the Captain and Lieutenant promotional examinations.
The County had rejected that challenge, and promoted three of eight individuals
on the list to Captain, and seven of twenty-four individuals on the list to
Lieutenant. The Commission upheld the promotions. Appellants appealed from
the Commission's upholding of the promotions arguing that the Commission
allowed individuals to sit for the examination, in violation of N.J.A.C. 4A:4-
A-5095-16T3 2 2.6(a)(1) (indicating that applicants for promotional examinations must have
"one year of continuous permanent service").
In part, we reversed for failure to comply with the principles underlying
the proper administration of working test periods. In the Matter of County
Correction Captain (PC1189P) and County Correction Lieutenant (PC1202P),
Hudson County, No. A-2162-14 (App. Div. Mar. 9, 2017) (slip op. at 9-10).
N.J.A.C. 4A:1-1.3 defines a working test period as "a part of the examination
process after regular appointment, during which time the work performance and
conduct of the employee is evaluated to determine if permanent status is
merited." The legislature has defined the purpose of the working test period to
give an appointing authority an opportunity "to determine whether an employee
satisfactorily performs the duties of a title." N.J.S.A. 11A:4-15. In our prior
opinion, we stated that there was
no evidence [that] indicated the County observed and evaluated the Applicants [who took the exams] during a working test period, prepared progress reports, or determined they satisfactorily performed the duties of their respective titles and successfully completed a working test period. Absent evidence that Applicants actually and successfully completed a working test period, the Commission could not presume they had done so.
A-5095-16T3 3 [In the Matter of County Correction Captain (PC1189P) and County Correction Lieutenant (PC1202P), Hudson County, slip op. at 10.]
In the prior appeal, we granted appellants' request for removal of various
applicants from the promotional lists. In so doing, we did not mandate that the
County appoint or promote appellants. Instead, we stated that – due to the
passage of time – "further measures may be necessary which should be
addressed in the first instance [by] the Commission." Id. at 18.
On remand, the Commission followed our instructions and removed the
names of various applicants from the lists of individuals who were eligible to
take the exams. And it reinstated the original titles for those who received
promotions. Under N.J.A.C. 4A:4-2.6(a)(2), the Commission then amended the
announcements for the promotions and extended the deadline for filing
applications, to allow proper testing for eligible candidates.
Appellants contend that their ranked positions on the eligible lists would
have guaranteed their promotions on remand. They say that once the
Commission removed the improperly promoted applicants from the eligible
lists, Oyola would have moved up on the Captains List from the fifth spot to the
second spot. And they assert that, on the Lieutenants list, Kalb would have
moved up from the seventh spot to the second spot, and Gaines would have
A-5095-16T3 4 moved from the tenth spot to the fifth spot. But, crucially, appellants had retired
after the other applicants were already promoted.
Thus, the Commission noted, as to appellants, that they were required to
"successfully complete a working test period" before they could be promoted to
a higher title. Like us, the Commission was unwilling to assume that appellants
would previously have successfully completed their respective working test
periods. That is so because the County did not "observe or evaluate [the
appellants] as evidenced by [any] progress reports." The Commission therefore
was unwilling to retroactively promote them.
On appeal, appellants raise the following arguments:
POINT I THE COMMIS[S]ION[']S DECISION WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE. ALL IMPACTED CANDIDATES WERE NOT A PART OF THE PROCEEDINGS[.]
POINT II THE CURRENT CANDIDATES ON THE ELIGIBILITY LIST[S] WERE NOT REPRESENTED IN THIS MATTER[.]
POINT III THE CIVIL SERVICE DECISION IS NARROWLY TAILORED TO ADVANCE THE APPOINTING AUTHORITIES AGENDA AND BARS THE APPELLANTS FROM RECOVERY[.]
A-5095-16T3 5 POINT IV APPEL[L]ANTS['] PROMOTIONS WERE NOT A POSSIBILITY BUT A CERTAINTY AS HUDSON COUNTY PROMOTES IN ORDER FROM THE LIST[S] – BUT FOR THE ACTIONS OF HUDSON COUNTY AND CIVIL SERVICE APPELLANTS WOULD HAVE BEEN PROMOTED[.]
POINT V HUDSON COUNTY'S OFFER TO MAKE APPELLANTS WHOLE SHOULD HAVE BEEN INCORPORATED INTO THE CIVIL SERVICE DECISION[.]
POINT VI THE APPELLATE DIVISION DECISION RESULTED IN NO MORE THAN AN INCONVENIENCE TO THE INELIG[IB]LE CANDIDATES BUT CAUSED [IRREPARABLE] HARM TO THE APPELLANTS[.]
POINT VII HUDSON COUNTY'S PROMOTIONAL PRACTICES ARE INDICATIVE OF ITS WILLINGNESS TO BEND, BREAK, STRETCH AND CHALLENGE THE RULES WHEN IT SUITS [ITS] NEEDS[.]
POINT VIII [APPELLANTS] ARE LEGALLY ENTITLED TO THE PROMOTIONS UNDER IN RE SNELLBAKER . . . AND HUDSON COUNTY HAD A LEGAL OBLIGATION TO PROMOTE[.]
Our review of a Commission's determination is limited. In re Stallworth,
208 N.J. 182, 194 (2011); see also Wnuck v. N.J. Div. of Motor Vehicles, 337
N.J. Super. 52, 56 (App. Div. 2001) (indicating that "[i]t is settled that [a]n
A-5095-16T3 6 administrative agency's interpretation of statutes and regulations within its
implementing and enforcing responsibility is ordinarily entitled to . . .
deference") (second alteration in original) (citations and internal quotation
marks omitted). We afford a "strong presumption of reasonableness to an
administrative agency's exercise of its statutorily delegated responsibilities."
Lavezzi v. State, 219 N.J. 163, 171 (2014). We "defer to an agency's
interpretation of . . . [a] regulation, within the sphere of [its] authority, unless
the interpretation is plainly unreasonable," but are "in no way bound by the
agency's interpretation of a statute or its determination of a strictly legal issue."
US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012) (citations and internal
quotation marks omitted). This is because "a state agency brings experience and
specialized knowledge to its task of administering and regulating a legislative
enactment within its field of expertise." Ibid.
To reverse the decision, we must find an agency's decision to be "arbitrary,
capricious, or unreasonable, or [] not supported by substantial credible evidence
in the record as a whole." Stallworth, 208 N.J. at 194 (alteration in original)
(quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). In making
such a determination, we must examine:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency
A-5095-16T3 7 follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Ibid.]
Appellants are not entitled to retroactive appointment and back pay.
N.J.A.C. 4A:4-1.10(c) governs the approval of appointments by the Commission
and grants the Commission delineated authority to "order a retroactive
appointment date due to administrative error, administrative delay, or other good
cause[.]" This is a very limited remedy that is only permitted for administrative
purposes or for "good cause." The Commission has consistently enforced the
administrative code's requirements, except in extraordinarily rare
circumstances. "Although the Commission's interpretation is not necessarily
controlling, . . . [w]here the Commission's interpretations [of the administrative
code] have continued over a period of years without legislative interference they
have been given great weight as evidence of the Legislature's intent" behind the
law and regulations. Makowitz v. State, Dep't of Civil Serv., 177 N.J. Super.
61, 65 (App. Div. 1980) (citations omitted). Here, there were no administrative
errors or delays, and appellants have failed to show good cause. There is no
evidence establishing that appellants completed working test periods, as
A-5095-16T3 8 required by the Commission's regulations. Thus, under the circumstances
presented in this appeal, it would be extraordinarily rare for the Commission to
depart from its own regulations, which have implemented the statutory
framework.
In our prior opinion, we addressed the importance of the working test
period by stating:
A working test period "furthers the [Civil Service] Act's purpose 'to fill government positions upon a basis of merit and fitness to serve' by creating a probationary period of service during which time the appointing authority can observe and evaluate the appointee." Commc'ns Workers, AFL–CIO v. N.J. Dep't of Pers., 154 N.J. 121, 130 (1998) (citation omitted). "[T]he actual completion of a working test period is ordinarily a basic condition of permanent employment." Cipriano v. Dep't of Civil Serv., 151 N.J. Super. 86, 90 (App. Div. 1977). "Neither the appointing authority nor the Civil Service Commission ha[s] any authority to ratify the improper performance of the working test period." Id. at 91 (finding inadequate a "sham paper transfer to make it appear that Cipriano had actually complied with the working test period").
[In the Matter of County Correction Captain (PC1189P) and County Correction Lieutenant (PC1202P), Hudson County, slip op. at 10 (alterations in original).]
There is no evidence that appellants served successful working test periods. And
even assuming appellants were entitled to placement of their names on the
A-5095-16T3 9 promotion lists on remand, they have retired from their respective positions at
the County. Thus, they are unable to serve the working test period for the
appointment to Captain or Lieutenant. The Commission may not presume
appellants would have successfully completed working test periods for their
respective titles; and there is no credible evidence in this record that the County
observed or evaluated appellants, such as progress reports or other
documentation demonstrating appellants' performance of job duties. The
Commission cannot disregard the working test period requirements.
Moreover, the Commission's regulations do not guarantee appellants
promotional appointments. N.J.A.C. 4A:5-2.2(d) states that, "[w]hen a single
vacancy is to be filled from a promotional certification headed by a nonveteran,
any reachable eligible may be appointed in accordance with the 'rule of three.'
See N.J.S.A. 11A:4-8." N.J.S.A. 11A:4-8, which sets forth the "rule of three,"
states:
The [C]ommission 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 commission 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
A-5095-16T3 10 result of the ranking without resorting to all three highest scores, only those eligibles shall be so certified.
As we have stated,
a person who successfully passes an examination and is placed on an eligible list does not thereby gain a vested right to appointment. The only benefit inuring to such a person is that so long as that list remains in force, no appointment can be made except from that list.
[In re Crowley, 193 N.J. Super. 197, 210 (App. Div. 1984).]
Thus, appellants do not have a vested right of an appointment from the
eligible lists for these promotions. In Nunan v. New Jersey Department of
Personnel, 244 N.J. Super. 494, 495-96 (App. Div. 1990), the appellant claimed
that he was entitled to immediate appointment to the position of Atlantic City
police officer with back pay because he should have been entitled to a resident's
preference for appointment. The appellant claimed that his name was
"improperly removed from the eligible list," and therefore he was "entitled to a
mandated appointment and back pay." Id. at 497. Before he was removed from
the list, the appellant ranked sixteenth, and because appointments were later
made from that list, we stated that "one can reasonably assume that at some point
[the] appellant would have been one of the three highest scoring individuals."
Ibid. But we concluded that, "[v]iewing the facts and law most favorably to
A-5095-16T3 11 appellant, the best that can be said is that he had a right to be considered for
appointment. He did not, and does not, have a legitimate claim of entitlement
to the position . . . ." Id. at 497-98. As to appellants, they could have been
entitled to restoration on the eligible lists, but their retirement made that
impossible.
Appellants argue that the County was "amenable to retroactively
promoting those eligible individuals, who were on the promotional list for
lieutenants and captains, and retroactively paying them their lost pay for the
period commencing on November 28, 2015 . . . ."1 Even if that were the case,
the Commission's regulations mandate satisfactory completion of the working
test period for permanent appointment to a title. N.J.S.A. 11A:4-15; N.J.A.C.
4A:1-1.3. Thus, even if the County was willing to retroactively promote
appellants and give them back pay, the law prevented the Commission from
doing so.
We conclude that appellants' remaining arguments are without sufficient
merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).
Nevertheless, we add these brief remarks.
1 The County did not participate in the prior appeal. On this appeal, the County concedes that the examination process for promotions rests exclusively with the Commission. A-5095-16T3 12 Appellants cite to County employees who have received promotions while
holding the official Civil Service title of "confidential aid." Because of this,
they claim that their titles could be "switch[ed] . . . to the unclassified title of
'confidential aid'" or that the County could "acknowledg[e] that [a]ppellants
were legally entitled to the promotions by contract." Appellants were not legally
entitled to promotions and the existence of other County employees who held
positions that did not mandate working test periods or year in grade requirements
is not dispositive.
Finally, there is no basis whatsoever for appellants' contention that the
Commission's decision is "narrowly tailored to protect the disqualified
candidates and to bar . . . [a]ppellants from recovery." Appellants list seven
points as to how the decision was contrary to our 2017 ruling. These contentions
are not supported by the law, and do not mean that the decision was not narrowly
tailored.
Affirmed.
A-5095-16T3 13