IN THE MATTER OF MARIA MENICHELLI MERCER COUNTY BOARD OF SOCIAL SERVICES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5856-08T1

IN THE MATTER OF MARIA MENICHELLI,

MERCER COUNTY BOARD OF SOCIAL

SERVICES.

May 5, 2011

Submitted February 28, 2011 - Decided

Before Judges Reisner and Alvarez.

On appeal from a Final Administrative Action of the Civil Service Commission, Docket No. 2009-3016.

Joshua Markowitz, Chief Counsel, attorney for appellants Mercer County Board of Social Services and Maria Menichelli (David P. Schroth, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent Civil Service Commission (Melissa H. Raksa, Assistant Attorney General, of counsel; Andrea R. Grundfest, Deputy Attorney General, on the brief).

PER CURIAM

After conducting a classification audit, the New Jersey Division of Local Human Resources Management (LHRM) determined Maria Menichelli, who had been provisionally promoted to the position of Office Services Manager by the Mercer County Board of Social Services (MCBSS), was not fulfilling duties and responsibilities commensurate with that title. The LHRM instead determined her appropriate job classification was that of Secretarial Assistant. On May 21, 2007, MCBSS appealed the decision to the Merit Board, now the Civil Service Commission (Commission).

After the Commission affirmed the LHRM decision on January 15, 2009, MCBSS sought reconsideration, which the Commission denied on June 1, 2009. MCBSS and Menichelli appeal. We affirm.

LHRM's review of the appointment included information submitted through a July 6, 2006 position classification questionnaire form and attachments, an August 30, 2006 field audit, and a December 5, 2006 follow-up phone interview.

On February 2, 2007, the LHRM informed Menichelli and MCBSS that her primary duties did not accord with the position of Office Services Manager; rather, because they primarily revolved around assisting MCBSS's Chief of Administrative Services, her correct classification was that of "Secretarial Assistant." As the LHRM stated in its decision, Menichelli's primary duties did not call for substantial independent function.

The Commission stated Menichelli "primarily functioned as an assistant to" the Chief of Administrative Services and did not independently supervise employees. The decision further noted that, during the onsite audit of her position, Menichelli "made it clear that she made recommendations and suggestions to her supervisor, but that the ultimate decision-making authority in the Division of Administrative Services" was that supervisor. Because Menichelli did not have direct responsibility for, or prepare employee performance evaluations leading to, "hiring, firing, promoting, or disciplining of subordinates," her tasks with regard to staff were in the nature "of a lead worker, not that of a supervisor."

In the June 1, 2009 reconsideration decision, the Commission found MCBSS had not established "a clear material error" or presented new evidence. Relevant new evidence would have been additional information about Menichelli's job functioning from prior to the 2006 review, such as would have a material effect on the outcome, together with the reasons the new information was not presented. For example, Menichelli submitted three 2008 evaluations of employees, which she conducted, in support of reconsideration; however, she readily acknowledged not being responsible to administer such evaluations prior to completion of her questionnaire, the field audit, or the follow-up phone interview in 2006. Pursuant to N.J.A.C. 4A:2-1.6(b), therefore, reconsideration was not granted.

Judicial review of an agency's final decision is limited. We ask the following:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) 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.

[George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citations omitted).]

Therefore, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)); see also Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 16 (2006). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006); McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

Nonetheless, we are not bound by an agency's decision on a question of law. Thurber v. City of Burlington, 191 N.J. 487, 502 (2007). While we accord substantial deference to an agency's interpretation of statutes it was created to enforce, we still reverse where the decision is "plainly unreasonable." Stevens v. Bd. of Trs., 294 N.J. Super. 643, 652 (App. Div. 1996).

We turn now to appellants' sole argument, that the Commission "erred and was unreasonable in denying the job reclassification." Despite this blanket assertion, appellants have not established the Commission's error in its classification of Menichelli's position based on the questionnaire responses, the field audits, or the subsequent phone interview. Menichelli herself listed her primary duties as assisting the Chief of Administrative Services. In fact, she indicated on the questionnaire this job function took 100% of her time. Menichelli clearly indicated she was not responsible for preparing performance evaluations for other employees or for engaging in similar substantial independent functions. The employee evaluations thereafter submitted were completed approximately two years after the review was over.

The Civil Service definition of an "Office Services Manager" requires an individual who, although acting under direction, herself "directs, plans, and coordinates a variety of office support services, and supervises employees engaged in providing those services." We believe the very information supplied during the course of the audit established Menichelli simply did not do the work required by that job classification and description. We concur with the Commission that Menichelli's job functioning is best classified as that of a Secretarial Assistant, who "[u]nder direction . . . performs complex and responsible clerical work of a varied nature . . . [and] in addition, may assign and supervise the work of the clerical staff of the unit." Accordingly, in our view, there was nothing arbitrary, capricious, or unreasonable in the Commission's decision. It was based on substantial evidence in the record, in fact, evidence produced by the agency seeking the appointment and the employee herself. Since MCBSS and Menichelli have failed to meet these standards, we have no alternative but to affirm.