IN THE MATTER OF DIANE FERRAINA AND MARYANN GIFFORD

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4738-04T14738-04T1

IN THE MATTER OF DIANE FERRAINA

AND MARYANN GIFFORD, ROWAN

UNIVERSITY

___________________________________

 

Argued September 20, 2006 - Decided October 12, 2006

Before Judges Parrillo and Hoens.

On appeal from a Final Administrative Decision

of the Commissioner of the Department of Personnel,

DOP Docket Nos. 2005-1874 and 2005-1862.

Annmarie Pinarski argued the cause for appellants,

Diane Ferraina and Maryann Gifford (Weissman & Mintz,

attorneys; Ms. Pinarski, on the brief).

Todd A. Wigder, Deputy Attorney General, argued the cause for respondents, Commissioner and Department of Personnel (Anne Milgram, Acting Attorney General of New Jersey, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Mr. Wigder, on the brief).

PER CURIAM

Appellants Diane Ferraina and Maryann Gifford appeal from the April 1, 2005 final decision of the Commissioner, Department of Personnel (DOP), denying their requests to be reclassified to the title Secretarial Assistant 3 from their current positions of Principal Clerk Typist with Rowan University (Rowan). We affirm.

By way of background, Ferraina and Gifford were employed by Rowan, holding the permanent position of Principal Clerk Typist, assigned to provide secretarial support to the University's academic department chairpersons in the Department of Journalism and the Department of Radio, TV, and Film, respectively. Believing their positions should be reclassified to the Secretarial Assistant 3 title because each worked for a department chair, appellants filed a request for a classification review in or about August 2003.

The classification of positions to the Secretarial Assistant title series is governed by Salary Adjustment Memorandum (SAM) #9-88, Supplement #1, issued by the DOP in accordance with the Commissioner's broad classification powers. See N.J.S.A. 11A:3-1. In this regard, SAM provided that the Secretarial Assistant 3 title was available for use only by Assistant Division Directors, Bureau Chiefs or their organizational equivalents. However, working in such a position was only a threshold qualification for use of the Secretarial Assistant 3 title, as SAM also allowed the appointing authorities to develop additional standards, appropriate to each State employer's organizational structure, for the utilization of this title series.

Consequently, in 1994, Rowan developed a classification plan to identify academic departments that warranted use of the secretarial assistant title for its support staff services. The plan utilized a mathematical formula based on a variety of factors, including the budget for the academic department, the amount of separately budgeted grants, the number of majors, the number of classes and the number of faculty. The rationale was that chairpersons in academic departments that achieved a score of 10 or more points have "more accountability and from an organizational standpoint [are] in line with a Director[]" and accordingly, secretaries reporting to chairpersons in these departments perform correspondingly complex duties and are properly classified in the title of Secretarial Assistant 3. Rowan's classification plan was endorsed by the Commissioner on July 29, 1994.

At the time of its review of appellants' reclassification requests, Rowan's Department of Journalism had a budget of $8,000, grants of $2,400, 113 majors, 30 classes, and 10.75 faculty members. The Department of Radio, TV, and Film had a budget of $12,500, grants of $2,400, 339 majors, 38 classes, and 9 faculty members. Applying its formula, Rowan determined in November, 2003, that neither academic department had achieved the requisite 10 points required for use of the Secretarial Assistant 3 title and, therefore, that Ferraina's and Gifford's positions were properly classified in the Principal Clerk Typist title.

On November 25, 2003, appellants requested the DOP's Division of Human Resource Management (DHRM) to review Rowan's classification action pursuant to N.J.A.C. 4A:3-3.9. In its initial determination, the DHRM, after examining the duties performed by both appellants and their supervisors, originally concluded that the chairs of these departments were "executive level officers" entitling them to a Secretarial Assistant 3 pursuant to SAM #9-88, Supplement #1, but without regard to Rowan's internal classification plan. Although this determination was forwarded to appellants by letter of May 6, 2004, the DHRM characterizes it as only a draft proposal submitted, as a courtesy, to Rowan for its review and comment before the decision became final since, pursuant to N.J.A.C. 4A:3-3.9(e), State appointing authorities have no right to appeal from final classification decisions of the DHRM. See N.J.A.C. 4A:3-3.5(e)2. As a result, on August 2, 2004, Rowan requested the DHRM reconsider its May 6, 2004 preliminary decision, objecting to its conclusion that the department chairs were "executive level officers" entitling appellants to reclassification and arguing that the draft determination departed from the University's approved classification plan. Neither appellant objected to Rowan's request for reconsideration nor, for that matter, did they respond when the DHRM advised them that the May 6, 2004 letter was only a draft, rather than a final determination. On October 21, 2004, the DHRM, after revisiting its preliminary conclusions, determined that neither appellant was entitled to have her position reclassified to the Secretarial Assistant 3 title.

On administrative appeal, the Commissioner upheld the DHRM's determination based on the mathematical formula employed by Rowan in its classification plan for the Secretarial Assistant title series. The Commissioner found that Rowan's classification plan was a reasonable method for objectively measuring the scope of duties performed by academic department chairs and, in turn, their secretaries, and that appellants had advanced no specific challenge to the plan's formula or its use in this instance.

On appeal, appellants contend they were denied due process and fundamental fairness by rescission of the agency's original determination and that its final decision, based on Rowan's formula, was contrary to law. The State argues, as a threshold matter, that the appeal is moot because of the DOP's recent determinations, affording appellants all the relief to which they are entitled. We find these arguments to be without merit.

Contrary to the State's mootness claim, even though Ferraina was promoted to the title Secretarial Assistant 2 and Gifford's position was reclassified to the Secretarial Assistant 3 title during the pendency of this appeal, appellants contend they should have been reclassified to Secretarial Assistant 3 effective December 27, 2003, and therefore are entitled to back pay. In this regard, although Rowan is given an option to accept the reclassification or reform the incumbent's position to conform to the requirements of the former job title, N.J.A.C. 4A:3-3.5(c)(1), appellants maintain they were deprived of the opportunity to have their employer make that choice due to DOP's erroneous decision.

Without deciding the merits of this particular claim, we are satisfied nonetheless that the issues to be resolved in this appeal remain in dispute and thus there is genuine and concrete adversity between the parties. See Advance Electric Co. v. Montgomery Township Bd. of Educ., 351 N.J. Super. 160, 166 (App. Div.), certif. denied, 174 N.J. 364 (2002). Moreover, issues concerning procedural due process and fairness, as well as the propriety of the classification standards employed, appear to be of substantial importance to both parties, Gross v. Ocean Twp., 92 N.J. 539, 541 (1983), and capable of repetition. Advance Electric Co., supra, 351 N.J. Super. at 166. Under the circumstances, we do not consider appellants' present claims moot.

However, they do lack substantive merit. We discern nothing improper in the invitation to Rowan to review and comment on the DHRM's May 6, 2004 initial findings. Indeed, the DOP is specifically authorized to "request additional information if needed" in connection with its review. N.J.A.C. 4A:3-39.(c); cf. Crema v. New Jersey Dept. of Environ. Protect., 94 N.J. 286, 299, 300 (1983). Moreover, appellants have no entitlement to a particular classification, see N.J.A.C. 4A:3-3.1; N.J.A.C. 4A:3-3.2; Marshall v. Bd. of Chosen Freeholders, Hudson Cty., 60 N.J. Super. 587, 594 (App. Div. 1960), particularly one resulting from a mistaken agency determination, and no vested or other rights are accorded by such administrative error. See O'Malley v. Dept. of Energy, 109 N.J. 309 (1987); HIP of New Jersey v. New Jersey Dept. of Banking & Insurance, 309 N.J. Super. 538 (App. Div. 1998); Cipriano v. Dept. of Civil Service, 151 N.J. Super. 86 (App. Div. 1977). Indeed, even if deemed a final agency decision, no due process consideration compels the DOP to ignore its mistake in failing to consider the appointing authority's approved plan or bars the agency from reconsidering its own decision. N.J.A.C. 4A:2-1.6. On the contrary, the agency possesses inherent power to reconsider its actions in order to carry out its regulatory powers. See, e.g., Padovano v. Bor. of East Newark, 329 N.J. Super. 204, 217-18 (App. Div.), certif. denied, East Newark Branch of Harrison's Patrolman's Benevolent Ass'n, Local 22 v. Bor. of East Newark, 165 N.J. 489 (2000); Petition of Adamar, etc., 222 N.J. Super. 464, 474 (App. Div. 1988). And, on this score, nothing in the record suggests appellants relied to their detriment on the DHRM's original determination or changed their circumstances as a result thereof.

Finally, we are satisfied that the Commissioner properly determined on the evidence, and consistent with the controlling classification standards, that neither Ferraina nor Gifford was entitled to have her position reclassified to the Secretarial Assistant 3 title. It is well-settled that the DOP's essential governmental function is to ensure merit and fitness in State service by proper classification of positions. N.J. Const. Art. VII, 1, 2; N.J.S.A. 11A:3-1. To this end, the Commissioner has been given broad authority "to establish, administer, amend and continuously review a State classification plan governing all positions in State service." N.J.S.A. 11A:3-1a; N.J.A.C. 4A:3-3.2(a). The Commissioner is to make classification decisions on the basis of the "qualifications, authority and responsibility" of the position. N.J.S.A. 11A:3-1c, N.J.A.C. 4A:3-3(a)(2). A position is assigned to a title which "[d]escribes the duties and responsibilities to be performed and the level of supervision exercised and received." N.J.A.C. 4A:3-3.1(b)1. An employee is required to be assigned to a title that is "appropriate to the duties to be performed." N.J.A.C. 4A:3-3.4.

Our review of the Commissioner's classification decision is limited; it must be upheld unless it is arbitrary. Carls v. Civil Service Comm'n, 17 N.J. 215, 221 (1955). In other words, we do not interfere with the Commissioner's discretionary classification determination unless it is "patently incompatible" with civil service law. Aparin v. County of Gloucester, 345 N.J. Super. 41, 57 (Law Div. 2000), aff'd, 345 N.J. Super. 24 (App. Div. 2001); Walsh v. Dept. of Civil Service, 32 N.J. Super. 39, 44 (App. Div. 1954), certif. granted, 17 N.J. 182 (1955) (subsequently dismissed).

Governed by this standard, the Commissioner's final decision was neither arbitrary nor contrary to law. Her denial of appellants' reclassification requests was properly based not only on the duties performed by the incumbents, but as well on the additional classification standards incorporated in Rowan's classification plan which, in turn, appropriately linked the secretarial assistant title to the increased responsibilities of a department chair with a substantial budget, a larger faculty, more majors and a larger student body. Under the circumstances, the Commissioner reasonably applied Rowan's plan, consistent with her classification powers, to conclude that the positions held by appellants were properly assigned to the Principal Clerk Typist title, and not to the Secretarial Assistant 3 title.

Affirmed.

 

Although the Commissioner denied the administrative appeals, the matters were remanded to the DOP "to determine whether the appellants are presently entitled to a Secretarial Assistant 3 (Non-Stenographic) classification." We have since been informed that on September 15, 2006, the DOP issued determinations on appellants' review requests, Rule 2:6-11(d), as a result of which Ferraina has been promoted to a higher level Secretarial Assistant 2 position, and the position occupied by Gifford is now reclassified to the Secretarial Assistant 3 title.

(continued)

(continued)

10

A-4738-04T1

 

October 12, 2006


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