Superior Court of
New Jersey,
Appellate Division.
In the Matter of CODE ENFORCEMENT OFFICER (M00410),
Jersey City.
In the Matter of Program Monitor (M62780), Jersey
City.
In the Matter of Community Service Aide/Senior Clerk
(M6631A), Jersey City.
Submitted March 5, 2002.
Decided April 1, 2002.
Applicants
for city employment who were certified as qualified but not hired appealed
decision of Merit System Board granting appointment waivers for the positions
for which they applied. The Superior Court, Appellate Division, Parrillo,
J.A.D., held that: (1) waiver for position of program monitor was proper, but
(2) city's actions in regard to other positions required remand to determine if
city was evading the merit system.
Affirmed
in part, reversed in part, and remanded.
West Headnotes
[1] Officers and Public Employees 
11.4
283k11.4
The "rule of three," which requires that an appointing
authority make an appointment from the eligible list if there are three or more
interested and eligible candidates, and appoint one of the top three interested
eligibles, is intended to guarantee the appointing authority an opportunity to
exercise minimal discretion in the selection of particular employees. N.J.S.A. 11A:4‑5; N.J.A.C. 4A:10‑2.2(a)2.
[2] Administrative Law and Procedure 763
15Ak763
[2]
Administrative Law and Procedure 791
15Ak791
In the search for arbitrary or unreasonable agency action, the
judicial role is generally restricted to three inquiries: (1) whether the
agency's action violates express or implied legislative policies, that is,
whether the agency followed the law, (2) whether the record contains
substantial evidence to support the findings on which the agency bases 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.
[3] Administrative Law and Procedure 796
15Ak796
[3]
Statutes 219(1)
361k219(1)
An appellate court is in no way bound by an agency's
interpretation of a statute or its determination of a strictly legal issue.
[4] Municipal Corporations 217.3(5)
268k217.3(5)
City was entitled to appointment waiver from Merit System Board,
allowing it not to fill the position of program monitor, even though there was
a list of available candidates, where provisional employee who formerly held
the position resigned, and city was not filling the position because of
financial constraints. N.J.S.A.
11A:4‑5; N.J.A.C. 4A:10‑2.2(a)2.
[5] Officers and Public Employees 69.10
283k69.10
An appointing authority has the discretion, under merit system, to
determine which areas of municipal government provide mandatory or critical
services and which positions could be eliminated during a fiscal crisis.
[6] Municipal Corporations 217.3(2)
268k217.3(2)
City's action in changing the job titles of two employees from
service aide/senior clerk to community service aide/typing required remand to
Merit System Board for determination of the actual duties of the positions, for
purpose of granting appointment waiver. N.J.S.A. 11A:4‑5; N.J.A.C. 4A:10‑2.2(a)2.
[7] Municipal Corporations 217.3(5)
268k217.3(5)
City's actions in changing provisional employees' titles from code
enforcement officer/program monitor, to code enforcement officer, then back
again, required remand to Merit System Board
for determination of whether, while a list of eligible employees existed, the
city appointed other than those on the list to the position of code enforcement
officer, and thus, whether city was entitled to appointment waiver for this
position. N.J.S.A.
11A:4‑5; N.J.A.C. 4A:10‑2.2(a)2.
**840 *428 Pearce, Vort & Fleisig, attorneys
for appellant James E. Ganley in A‑318‑00T5 (Robert A. Vort, Hackensack, on the brief).
Patrick Johnston, appellant pro se in A‑711‑00T5, A‑1995‑00T3
and A‑ 3121‑00T5.
David Samson, Attorney General, attorney for respondent the Merit
System Board in all four appeals (Michael J. Haas, Assistant *429 Attorney General, of counsel; Elizabeth M. Laufer, Deputy Attorney General, on the briefs).
*428 Before Judges PRESSLER, WEFING and PARRILLO.
*429 The opinion of the court was delivered by
PARRILLO, J.A.D.
These four appeals, consolidated for purposes of this opinion,
present a series of challenges to final administrative decisions of the Merit
System Board (Board) granting appointment
waivers for various civil service positions after examination and compilation
by Jersey City of lists of eligibles and their certifications. Three of the
appeals are brought pro se by Patrick Johnston, who was on the list of
eligibles for three positions, i.e., Community Service Aide/Senior Clerk,
Program Monitor, and Code Enforcement Officer. The fourth appeal is brought
by James Ganley, by counsel, challenging the appointment waiver for the
position of Code Enforcement Officer. For reasons that follow, we affirm the
Board's grant of an appointment waiver for the position of Program Monitor, but
reverse its determinations with respect to Community Service Aide/Senior Clerk
and Code Enforcement Officer and remand for further proceedings consistent with
this opinion.
All four appeals involve common questions concerning the use of
eligible lists in the merit system's appointment, selection, and placement
process. Some general background is therefore in order. To implement the
state constitutional mandate that appointments and promotions in the civil
service of the State and its political subdivisions be made according to merit
and fitness to be ascertained by competitive **841 examination, N.J.
Const. art. VII, § 1, ¶ 2, the Legislature created the Department of
Personnel (Department) as a principal department within the executive branch of
government and further established the Merit System Board and Commissioner of
Personnel as integral parts of the Department. N.J.S.A. 11A:2‑1; N.J.S.A. 11A:2‑8. The Board has the authority
to assign and reassign titles; the Commissioner of Personnel has broad
supervisory power to review classification plans governing *430 all
positions in the civil service and to provide for examinations testing
candidates' ability to perform the duties of a title. N.J.S.A. 11A:2‑3 to ‑7; N.J.S.A. 11A:3‑1; N.J.S.A. 11A:4‑1 to ‑16.
[1] Vacancies in the civil service are filled by promotional
examination, N.J.S.A. 11A:4‑2, which the Commissioner is authorized to
announce and administer. N.J.S.A. 11A:4‑1(a). The examination process is triggered by either the appointment
of a provisional to a civil service position or the appointing authority's
request for a list to fill a vacancy. N.J.S.A. 11A:4‑5. Based on the outcome of the examination, along with other
factors, the Commissioner provides for the establishment, certification, and
cancellation of eligible lists of candidates. N.J.S.A. 11A:4‑4. Once the examination process has been
initiated and there is a complete certification, the appointing authority is
required to make appointments from the list, in accordance with the "rule
of three" [FN1], "unless otherwise permitted by the
Commissioner for valid reason such as fiscal constraints." N.J.S.A. 11A:4‑5. [FN2] In other words, it is only under certain
limited circumstances that the Commissioner may grant the appointing authority
a waiver of the requirement to make the appointment from the eligible list and,
therefore, leave the position vacant in the face of a complete list.
FN1. The "rule of three" requires
that the appointing authority make the appointment from the eligible list if
there are three or more interested and eligible candidates, and appoint one of
the top three interested eligibles. N.J.S.A. 11A:4‑8; N.J.A.C. 4A:4‑4.8. The "rule of three" is
intended to "guarantee the appointing authority an opportunity to exercise
minimal discretion in the selection of particular employees." Nunan v. Department of Personnel, 244 N.J.Super. 494, 497, 582 A.2d
1266 (App.Div.1990).
FN2. The Administrative Code implements the
statutory directive and provides that an appointing authority may:
for valid reasons such as fiscal
constraints, petition the Commissioner for permission not to make a permanent
appointment. The Commissioner may grant such petition, but may order the
appointing authority to reimburse the Department for costs of the selection
process.
[N.J.A.C. 4A:10‑2.2(a)2.]
*431 In each of the four appeals before us, the Board
granted Jersey City's request for a waiver of appointment ostensibly because of
the City's fiscal crisis. It appears
undisputed that, in July 1999, Jersey City was designated by the State as a
distressed city pursuant to N.J.S.A. 52:27D‑ 118.25 and came under the fiscal oversight of the local public finance
board within the Department of Community Affairs. On February 9, 2000, Jersey
City implemented a reduction‑in‑force in which thirty‑three
employees were laid off. With that in mind, we next turn to the individual
circumstances surrounding each civil service title at issue here and the Board's
decision to leave that position vacant in the face of a complete and certified
list.
[2][3] We approach each instance mindful of our
limited role in reviewing administrative action. Matter of Musick, 143 N.J. 206, 216, 670 A.2d
11 (1996). In the
search for arbitrary or unreasonable action,**842 the judicial role is
generally restricted to three inquiries:
(1) whether the agency's action violates
express or implied legislative policies, that is, did the agency follow the
law; (2) whether the record contains substantial evidence to support the
findings on which the agency bases 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. (citations omitted).]
See also In re CAFRA Permit No. 87‑0959‑5, 152 N.J. 287, 304, 704 A.2d 1261 (1997); Brady v. Board of Review, 152 N.J. 197, 210, 704 A.2d
547 (1997); Gloucester Cty. Welfare Bd. v. New Jersey
Civ. Serv. Comm'n, 93 N.J. 384, 398, 461 A.2d 575 (1983). By the same token, we are in no way
bound by the agency's interpretation of a statute or its determination of a
strictly legal issue. Mayflower Securities v. Bureau of Securities, 64 N.J. 85, 93, 312 A.2d
497 (1973).
1. In the Matter of Program Monitor
(M62780)
[4] On September 22, 1997, Jersey City provisionally appointed
Stephen Schulz to the title of Program Monitor, pending an open competitive
examination. The provisional appointment generated *432 an examination
that was announced in December 1997. On March 12, 1998, an eligible roster was
promulgated that contained the names of twelve individuals, including appellant
Patrick Johnston, who, without veteran status, tied as the number two‑ranked
eligible. On June 1, 1999, a complete certification containing the twelve
names was issued to Jersey City. Thereafter, Jersey City, through its assistant
personnel director, requested of the Board an appointment waiver on the basis
that the provisional employee Schulz was no longer working in the Program
Monitor position, having resigned effective August 2, 1999, and that the City
was not making appointments due to fiscal constraints. On October 13, 2000,
the Board granted Jersey City the appointment waiver, finding that the
appointing authority had demonstrated a valid reason for not making an appointment from the subject eligible list in
light of its designation as a distressed city, its recent reduction in force,
and the fact that no provisionals were then functioning in the title.
[5] The fact that the City may have continued to employ
persons provisionally in other unspecified titles does not detract from the
economic justification for withholding current appointment to the position of
Program Monitor, left vacant since August 2, 1999. Communications Workers of America v. State
of New Jersey, 191 N.J.Super. 1, 4‑6, 465 A.2d 519
(App.Div.1983). The
appointing authority retains the discretion to determine which areas of
municipal government provide mandatory or critical services and which positions
could be eliminated during a fiscal crisis. Melchionne v. Newark, 60 N.J.Super. 104, 121, 158 A.2d
411 (App.Div.), aff'd,
33 N.J. 404, 165
A.2d 183 (1960);
Greco v. Smith, 40 N.J.Super. 182, 189‑90,
122 A.2d 513 (App.Div.1956). And as to the former, the City is entitled to employ
provisional employees in titles for which no eligible lists are currently
outstanding. See N.J.S.A. 11A:4‑13.
We are satisfied that the Board's findings with regard to the
position of Program Monitor are supported by sufficient credible *433
evidence in the record, and we therefore affirm. See In re Taylor, 158 N.J. 644, 656‑58, 731 A.2d
35 (1999).
For reasons that follow, however, we are unable to reach this
same conclusion with respect to the Board's
other determinations **843 as to the positions of Community Service Aide/Senior
Clerk and Code Enforcement Officer.
2. In the Matter of Community Service
Aide/Senior Clerk (M6631A)
[6] On February 3, 1997, Jersey City appointed three
provisionals‑‑Charles Allen, Iris Vivanco, and Teasa Williams‑‑to
the dual position Community Service Aide/Senior Clerk, pending an open
competitive examination that was not announced until February 1999. After the
examination was conducted, an eligible list was promulgated on April 29, 1999
containing twenty‑three names, including appellant Johnston, a non‑veteran,
who ranked number two eligible. As for the provisionals already in position,
non‑veteran Allen ranked number twenty‑one on the list, whereas
Vivanco and Williams did not apply to take the examination. After a complete
certification was issued to Jersey City on April 29, 1999, the appointing
authority requested an appointment waiver. Claiming that the three provisional
employees were no longer working in the subject position, Jersey City cited projected
layoffs and fiscal constraints as justifications for proposing not to make an
appointment. Allen had resigned his position effective July 31, 1999 and, on
August 2, 1999, Vivanco and Williams were appointed to Community Service
Aide/Typing positions at slightly higher salaries than their provisional
positions of Community Service Aide/Senior Clerk, from which they were
removed. Vivanco has since resigned.
Before the Board, Johnston argued against an appointment waiver,
contending that the titles of Community
Service Aide/Typing and Community Service Aide/Senior Clerk are identical
despite their separate classification listings. Indeed, the Board agreed that
Jersey City's actions in provisionally appointing Vivanco and Williams to the
typing position, after removing them *434 from the "similar"
senior clerk position where they had remained for over one and one‑half
years, was an attempt "to circumvent merit system appointment requirements."
While acknowledging that the "record would justify the denial of an
appointment waiver," nevertheless the Board granted the relief because
"it would not be appropriate to order an appointment under these
particular circumstances"‑‑an obvious reference to Jersey
City's fiscal condition.
We disagree with the reasoning of the Board as violative of both
express and implied legislative policies. As noted, those policies dictate
that appointments and promotions in the civil service be made according to merit
and fitness, measured as far as practicable by competitive examination. If,
as alleged, the two positions of senior clerk and typing are indeed
functionally equivalent, then Jersey City's fiscal condition provides no
justification for a waiver of appointment to a position that is essentially
occupied by a provisional who has remained in the title for well over the one
year period allowed by law, N.J.S.A. 11A:4‑13(b), to the preclusion of those eligible candidates who legitimately
qualified for the position through competitive examination.
If, on the other hand, the two positions are in fact separate and distinct,
then the appointing authority's fiscal situation more than amply supports the
grant of waiver.
Of course, the problem here is that the record below does not
allow a finding either way. There is, for instance, no proof of the job
descriptions for each title or the duties performed by each position. As the
record stands, Jersey City's facially suspect action in changing the job title
of the **844 three provisionals from "senior clerk" to
"typing," after they had served as senior clerk for nearly one and
one‑half years and only three months after the Department certified the
complete list of eligibles for the former position remains unexplained and,
worse yet, unjustified. This undeveloped record has prevented the Board, in
this instance, from carrying out, within the broad supervisory powers delegated
to it, its statutory mandate to regulate the public work force. *435
Therefore, we reverse the Board's grant of an appointment waiver for the
position of Community Service Aide/Senior Clerk and remand for a determination
as to the identity of the dual titles and effectuation of an appropriate remedy
in the event they are found to be the same or functionally equivalent.
3. In the Matter of Code Enforcement
Officer (M00410)
[7] We reach the same result in the matter of the position of
Code Enforcement Officer, where it appears, absent any explanation from the
City, that the appointing authority may have
acted even more egregiously.
Prior to October 1996, the position in question was designated
"Code Enforcement Officer/Program Monitor." On July 15, 1996,
Jersey City provisionally appointed Michael Daphnis to this position, pending
an open competitive examination. On October 11, 1996, Jersey City posted a
notice for the job of "Code Enforcement Officer," in accordance with N.J.S.A. 11A:4‑5. Appellants James Ganley, a veteran and
city resident, and Patrick Johnston sat for the examination and ranked first
and second, respectively, of all candidates. On December 13, 1996, based on
the result of the examination, an eligible roster was promulgated containing
the names of nine eligibles including Ganley and Johnston. On January 6,
1997, a complete certification, containing the nine names, was issued to the
appointing authority.
Jersey City, however, did not appoint anyone on the eligible
list. At some point prior to the promulgation of the eligible list on December
13, 1996, the appointing authority had hired forty‑four provisional
employees to staff the "Code Enforcement Officer/Program Monitor"
positions, which the City changed to "Code Enforcement Officer"
positions on October 15, 1996‑‑the very title for which the City
had posted a job notice on October 11, 1996. Thereafter, the City hired another
provisional Code Enforcement Officer on December 15, 1996 and yet another one
on January 6, 1997‑‑the same day the complete certification was
issued by the Department.
*436 In any event, after being
issued a complete certification, on February 26, 1997 the City requested from
the Department an appointment waiver, representing that Daphnis was terminated
on October 18, 1996, [FN3] i.e., prior to the issuance of the
certification on January 6, 1997, and that all other provisional appointees who
had been serving in the subject title had been removed from their positions.
Jersey City's request prompted a review by the Department and, as a result on
March 18, 1997, the Department notified the appointing authority that the
provisional appointments to the position Code Enforcement Officer, newly titled
as of October 15, 1996, were disapproved. Jersey City apparently did not follow
the directive, and the Department issued a notice of violation on **845
April 21, 1997. The City evidently still did not comply after the notice of
violation and, on May 15, 1997, the Department sent notice that it had
disapproved continued compensation for the provisional employees.
FN3. On October 21, 1996, Daphnis was
appointed to a non‑competitive position of "messenger," at the
same salary as his previous position.
In June 1997, approximately six months after promulgation of the
eligible list, Jersey City once again changed the titles of these provisional
employees back to "Code Enforcement Officer/Program Monitor" and, on
June 26, 1997, asked the Department for
permission to transfer the provisional Code Enforcement Officers to the new
position. Apparently permission was denied because Jersey City had presented
no explanation for the changes in title. Nevertheless, as of September 24,
1997, Jersey City continued to employ the forty‑two provisional Code
Enforcement Officers hired on October 15, 1996,
[FN4] as well as the
two others subsequently hired on December 15, 1996 and January 6, 1997.
FN4. Apparently, of the original forty‑four
provisionals hired on October 15, 1996, two were no longer employed by the
City.
Despite the fact that the City's initial request for an
appointment waiver was made on February 26, 1997 and that for the next two
years Ganley continually complained that the City had failed *437 to
make an appointment from the outstanding certification, the Board took no
action [FN5] until December 23, 1998‑‑over two years after the
promulgation of the eligible list‑‑when it advised Jersey City of
the waiver process. Almost one year later, on October 20, 1999, Jersey City
formally requested waiver of appointment for certification of the Code
Enforcement Officer position. As of October 25, 1999, twenty‑five
provisionals continued to hold the position of Code Enforcement Officer/Program
Monitor, while Ganley remained first on the eligible
list. That list expired on December 12, 1999, before the Board's resolution
of Jersey City's request for a waiver of appointment.
FN5. In a December 15, 1997 memo, the
Department reported:
Originally pa's were appointed as Code
Enforcement Officer/Program Monitor. Then on 10‑15‑96 the AA sent
an interim profile changing the title to Code Enforcement Officer.
A list (M00410) was generated and certified
against 44 Pa's. Now the AA has changed the title back to Code Enforcement
Officer/Program Monitor.
FYI a list (M00430) was generated and
certified for the slash title 0L962887 on 12‑31‑96. The AA has
not complied on this matter either. It was sent up for compliance on 6‑6‑[9]7.
Copies are attached for your review.
The Board's resolution did not occur until August 10, 2000, eight
months after appellants' certification from the December 1996 examination had
expired, when it ruled in favor of the appointing authority's request, thereby
rendering moot the complaints of appellants and others similarly situated over
their non‑ appointment. In the course of its ruling, the Board found
that the sequence of events in twice changing the titles of forty‑four
provisional employees without explanation "clearly indicates that the
actions of the appointing authority were
aimed at circumventing merit system appointment requirements." The only
consequence of having violated merit system rules, however, was the Board's
assessment of compliance costs and fines against the City. Although
acknowledging that the record "would justify denial of an appointment
waiver," the Board instead granted the waiver of appointment because the
list from which exemption was sought had expired on December 12, 1999, the
position supposedly **846 had *438 never been filled, and the
City had recently undergone a reduction in force.
As in the case with the position of Community Service Aide/Senior
Clerk, we conclude there is not sufficient evidence in the record to support
the Board's grant of a waiver of appointment in this instance. As the Board
concluded, there was no explanation for the "musical chairs"
reclassification of forty‑ four provisionals from one title to another
and back to the original, nor any explanation as to how the functions and
duties performed under both titles may have differed from each other. In
fact, the Board itself sought no justification from the appointing authority
for its double changes in title and multiple transfers of provisionals back and
forth. Nor did the Board address other apparent violations by Jersey City of
merit system rules, such as leaving uncertified provisionals in positions for
more than twelve months, N.J.S.A. 11A:4‑13(b), appointing provisionals to positions for which there existed a
complete list of eligibles, N.J.A.C. 4A:4‑1.5, and willful failure to act in the
face of Department directives, N.J.A.C. 4A:10‑1.1(b).
Indeed, the economy argument advanced by the City would be of no
avail if the appointing authority had in fact decided not to dispense with the
particular services rendered by the position for which the examination was
called but instead had them performed by provisionals who were moved from the
position for which appellants qualified‑‑the only apparent
motivation therefor being to avoid use of the eligible list. In such a case,
there would be neither an abolition of the subject position nor a dispensation
of its services for purposes of economy. See Melchionne v. Newark, supra, 60 N.J.Super. at 121‑22, 158
A.2d 411; Greco v. Smith, supra, 40 N.J.Super. at 189, 122 A.2d
513. Under the
present circumstances‑‑suggestive as they are of a circumvention of
merit system appointment requirements‑‑we conclude that there has
been a failure to recognize both the spirit and the legislative policy of the
Civil Service Act under which the Board functions, and this alone is reason to
reverse its action, even in the absence of express *439 prohibitory
language in the statute. See Fanwood v. Rocco, 59 N.J.Super. 306, 319, 157 A.2d
712 (App.Div.), aff'd,
33 N.J. 404, 165
A.2d 183 (1960);
Greco v. Smith,
supra, 40 N.J.Super.
at 184‑85, 122 A.2d 513.
It is simply no answer that, at the time of the Board's decision,
no eligible list remained in force. The eligible list expired precisely
because of the failure of the appointing authority to timely act, and the Board
to timely decide. And the fact remains
that, during the life of the list, appellants repeatedly complained of their
non‑appointment so as not to preclude the provision of relief
retroactively. Cf. N.J.S.A. 11A:4‑6.
We recognize that there is no constitutionally‑vested right
to appointment to a civil service position simply because of placement on the
eligible list, and that appellants are not automatically entitled to the
position of Code Enforcement Officer merely because of their eligibility
ranking. Nunan v.
Department of Personnel, 244 N.J.Super. 494, 497, 582 A.2d 1266
(App.Div.1990).
They are, however, entitled to the assurance that, so long as the list remains
in force, no appointment will be made except from that list. In re Crowley, 193 N.J.Super. 197, 210, 473 A.2d
90 (App.Div.1984).
They are also entitled to be dealt with fairly, which would not have been the
case if, as alleged, the appointing authority had by design effectively
abrogated **847 the Civil Service Act by either retaining employees in
provisional status in positions essentially identical to those for which lists
of eligibles had been promulgated and beyond the twelve‑month maximum
allowed by law, or rotating them through similar positions in circumvention of
merit system appointment requirements. Because the record is unclear whether,
during the life of the list, persons other than those on that list were
appointed to the subject title, we remand the matter to the Board for a
determination of this issue and effectuation of a remedial opportunity if found
to be necessary. The determination upon
remand must include a finding as to whether the position of Code Enforcement
Officer entails substantially identical or functionally equivalent duties as a
Code Enforcement*440 Officer/Program Monitor; if so, we direct the
Board to effectuate an appropriate remedy.
The final administrative action of the Board dated October 13,
2000 as to the position of Program Monitor is affirmed. The final
administrative actions by the Board dated August 10, 2000 and January 19, 2001
as to the positions of Code Enforcement Officer and Community Service Aide,
respectively, are reversed, and the matters are remanded to the Board for
further proceedings consistent with this opinion.
793 A.2d 839, 349 N.J.Super. 426
