IN THE MATTER OF STEVEN C. HOWE AND JOSEPH MUFALLI

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3512-07T13512-07T1

IN THE MATTER OF STEVEN C. HOWE

AND JOSEPH MUFALLI, CHIEF OPERATING

ENGINEER 2 (PS3669P), JUVENILE

JUSTICE COMMISSION, DEPARTMENT OF

LAW AND PUBLIC SAFETY

____________________________________

 
 

Argued April 22, 2009 - Decided

Before Judges Stern and Espinosa.

On appeal from the Final Decision of the

Merit System Board, Docket No. 2008-2822

and 2008-2825.

Fred Shahrooz Scampato argued the cause for

appellant Steven C. Howe.

George N. Cohen, Deputy Attorney General, argued

the cause for respondent Merit System Board

(Anne Milgram, Attorney General, attorney;

Lewis A. Scheindlin, Assistant Attorney

General, of counsel; Andrea R. Grundfest,

Deputy Attorney General, on the brief).

PER CURIAM

Stephen C. Howe appeals from the final administrative determination of the Merit System Board ("MSB") in the Department of Personnel, issued December 21, 2007, and its determination of March 13, 2008, denying his motion for reconsideration of the determination that Howe did not meet the experience requirements necessary to sit for the promotional examination for Chief Operating Engineer 2 of the Juvenile Justice Commission. On this appeal he argues that "the administrative agency acted either arbitrarily or capriciously by finding appellant's prior supervisory experience to be out of title," whereas only one of the three applicants, Barry Schneider, who did the same work as appellant, was found to qualify for the exam. Howe further argues that the agency acted "arbitrarily and capriciously in its attempt to correct the ambiguous language in the job specification of operating engineer 1 and should have either negated the examination results or should have allowed all three applicants to sit for the exam."

The promotional announcement of the Department of Personnel, consistent with the job specification for Chief Operating Engineer 2, stated that to be eligible, the applicant had to have one year of continuous service as an operating engineer and, among other things, "three (3) years of supervisory experience in work involving the operation, maintenance and emergency repair of power heating plants and auxiliary equipment."

In its opinion of December 21, 2007, the MSB quoted N.J.A.C. 4A:4-2.6(c) when it detailed that "applicants for promotional examinations may not use experience gained as a result of out-of-title work to satisfy eligibility requirements," and concluded that appellant did not possess the experience required for eligibility because his supervisory experience was as a Senior Repairer and, therefore, "out-of-title work." It further noted that, although he possessed "non-supervisory experience in the required areas" and some "out of title" supervisory experience, neither he nor Joseph Mufalli "possesses the three years of supervisory experience" required to be eligible to take the promotional examination. The opinion also concluded that "Schneider's application reveals that he possessed in excess of three years of supervisory experience while serving as an Operating Engineer 1 at Woodbine Development Center."

Based on the record before us, we cannot disturb the findings. Accordingly, we must defer to the agency's expertise in implementing the civil service law. In Re Juvenile Detention Officer Union County, 364 N.J. Super. 608, 614-15 (App. Div. 2003).

We appreciate Howe's argument that for an Operating Engineer 1 to be eligible to take the promotional examination to become a Chief Operating Engineer 2, a prerequisite for the exam is three years of supervision, and that there are no responsibilities for supervising personnel in the job description for an Operating Engineer 1. Howe, therefore, asks that we "either order the negation of the promotion of Mr. Schneider or to provide Mr. Howe and Mr. Mufalli some opportunity to be able to apply for future examinations for this title". As already noted, Mufalli was the provisional Chief Operating Engineer at the time of the exam, and the three men work together.

In response to the motion for reconsideration, the MSB stated:

With regard to the petitioners' assertion that it is not possible to obtain appropriate supervisory experience in the title Operating Engineer 1, the Board notes that the subject job specification is somewhat ambiguous and not worded in a way which would provide for a logical progression from non-supervisory levels of the series to supervisory levels of this series. Specifically, the job specification for Operating Engineer 1 provides that individuals serving in this capacity take the lead in work involving the operation and maintenance of boilers, engines, turbines, motors, generators and auxiliary equipment used in power and heating plants. Individuals serving in the title Operating Engineer 1 may supervise the use of equipment, materials and supplies and must have the ability to assign and instruct power and hearing plant employees in the performance of their work. To rectify this ambiguity and insure consistency with other title series which progress from non-supervisory to supervisory level titles, the Board orders the Division of State Human Resource Management to insert the following "Example of Work" into the job specification for Operating Engineer 1:

May supervise the work operations and/or functional programs and has responsibility for effectively recommending the hiring, firing, promoting, demoting and/or disciplining of employees.

Even allowing for this correction to the Operating Engineer 1 job specification, neither petitioner, although provided ample opportunity to do so, provided any evidence that they supervised while serving in this capacity. In fact, both specifically indicated in their initial submissions that they did not supervise, even on a fundamental level, and no basis exists to admit them to the subject examination regardless of this revision to the job specification for Operating Engineer 1. Consequently, both petitioners were correctly deemed to be ineligible to sit for the subject promotional examination. With regard to Barry Schneider, the Board notes that the Division of Selection Services concluded that he satisfied the experience requirement for Chief Operating Engineer 2 based on experience gained in his previously held positions, he completed the examination process, and was appointed as a Chief Operating Engineer 2. The petitioners have provided no basis for the Board to disturb Mr. Schneider's appointment.

Accordingly, the petitioners have failed to demonstrate that a clear, material error was made or present any new information which would change the outcome of the Board's decision as articulated in the reconsideration standard. After consideration of all of the relevant issues in this matter, the Board finds that no basis exists to disturb its December 19, 2007 Order.

 
Accordingly, the job specification for Operating Engineer 1 is to be revised. While it may not help Howe in the present case, and he may need to be reassigned in order to obtain in-title supervisory experience, the MSB considered Howe's concerns. In any event, he was not qualified to sit for the promotional examination at the time it was given, and we cannot find that the MSB acted arbitrarily, capriciously or unreasonably in not permitting Howe to sit or in promoting Schneider. Therefore, the final administrative determination of the MSB is affirmed.

As Mufalli, who had been serving as provisional Chief Operating Engineer 2 at the time of the examination, has not appealed to us, we do not address any issue with respect to him. Although represented by the same counsel before the MSB, he is not an appellant before us.

Schneider's application and work history is not in the record before us. Schneider had been appointed to the position by the time the motion for reconsideration was filed. At argument before us Howe no longer seeks rescission of that promotion, but an opportunity to compete in the next promotional exam.

(continued)

(continued)

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A-3512-07T1

May 7, 2009