IN THE MATTER OF PAUL MESSINA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF PAUL MESSINA,

CITY OF TRENTON.

__________________________________

December 16, 2013

Submitted December 9, 2013 Decided

Before Judges Harris and Kennedy.

On appeal from the Civil Service Commission, CSC Docket No. 2011-3169.

Darryl M. Saunders, attorney for appellant Paul Messina.

Becker Meisel, LLC, attorneys for respondent City of Trenton (Wesley Bridges, of counsel; Steven R. Weinstein, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant Paul Messina appeals from the March 8, 2012 final administrative action of the Civil Service Commission denying his appeal of the decision of the City of Trenton not to appoint him from a special reemployment list for police Captain. We affirm.

I.

The facts are undisputed. On May 18, 2006, Messina received a permanent appointment to the position of police Captain. In November 2010, Trenton conducted a layoff within its police department. As a result, on November 5, 2010, Messina was demoted to Lieutenant. He was placed on a special reemployment list for Captain, and at the time of the Commission's final action, was the only eligible on this list.

In January 2011, a temporary vacancy occurred in the position of Captain, and Trenton re-assigned Lieutenant Steven Varn to serve as "acting" Captain. Varn's assignment lasted until May 25, 2011, when Messina was assigned to the position of "acting" Captain. Messina served in that position until September 16, 2011, when he returned to the Lieutenant's position. One month later, Messina again was re-assigned as an "acting" Captain, where he remained through the Commission's final decision on March 8, 2012.

Messina sought the Commission's intervention on February 3, 2011, when his attorney wrote,

We are requesting that the Board/Commission disapprove and order that payment be stopped of the salaries of any person employed in violation of Title 11A, New Jersey Statutes, Title 4A, N.J.A.C. . . . In addition, we are also requesting that an audit be conducted by the New Jersey Civil Service Commission, Division of Human Resources Management.

Messina ultimately argued that due to the duration of each of the "acting" appointments, there was a need for a permanent captain in the Trenton Police Department, and he was the only candidate eligible for such an appointment. Accordingly, he sought a declaration that he should receive such permanent appointment retroactive to January 2011.

The Commission disagreed with Messina, even though it criticized Trenton for Varn's "acting" appointment:

In the instant matter, the record evidences that Varn and the appellant were appointed to Police Captain positions due to leaves of absence granted to Police Captains accepting unclassified Police Director positions. As such, Varn's and the appellant's appointments are properly considered interim [not "acting"] appointments. Further, the appellant is correct in arguing that Varn should not have received an interim appointment as there was a complete special reemployment list available. . . . The appointing authority corrected its error when it removed Varn from this interim position in May 2011. Since the appellant should have held this interim position instead of Varn, some remedy is warranted. In this regard, the appellant's personnel record should be corrected to reflect his interim appointment to Police Captain from January 29, 2011 to September 16, 2011 and from the date he was again appointed to Police Captain on an interim basis in October 2011. However, since he did not perform the duties of a Police Captain during the period that Varn was the interim Police Captain, the appellant is not entitled to any further remedy, such as back pay.

The Commission further noted that Messina "did not possess a vested right to a permanent appointment since the position in question was . . . filled on an interim basis pursuant to N.J.A.C. 4A:4-1.6." Lastly, the Commission declined Messina's invitation to conduct an audit for the police department, but ordered "the appointing authority . . . to promptly update its personnel records to indicate all interim appointments and leaves of absence for unclassified appointments." Dissatisfied with this disposition, Messina appeals.

II.

On appeal, Messina claims that in light of the Commission's decision chastising the Varn appointment, he is entitled to legal fees, back pay, and a permanent appointment to the position of police Captain. In support of his contentions, Messina attacks the 2010 layoff plan and Varn's flawed appointment. Messina offers no authority for the recovery of legal fees and back pay, and suggests that his entitlement stems from nothing more than the fact that "[t]he [Commission] is supposed to ensure that politics has no place in the promotion, demotion and or layoff of employees in permanent civil service titles." Without a citation in support of his theory, Messina simply argues, "[W]hen the City of Trenton appointed other employees to the title of acting Police Captain, it violated appellant's re-employee [sic] rights given to him pursuant to his civil service rights." We cannot agree.

"Courts provide the widest possible interpretation of the [Civil Service] Act as it was designed to procure efficient public service and to maintain stability and continuity in ordinary public employment." In re Johnson, 215 N.J. 366, 377 (2013) (citing State Dep t of Civil Serv. v. Clark, 15 N.J. 334, 341 (1954); Aparin v. Cnty. of Gloucester, 345 N.J. Super. 41, 55 (Law Div. 2000), aff d o.b., 345 N.J Super. 24 (App. Div. 2001)). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" In re Stallworth, 208 N.J. 182, 194 (2011) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

In general, appellate review is limited to determining:

(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 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.

[In re Carter, 191 N.J. 474, 482-83 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

"'[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different

result.'" In re Carluccio, 426 N.J. Super. 15, 24 (App. Div. 2012) (quoting In re Taylor, 158 N.J. 644, 657 (1999)).

In the present case, there was nothing arbitrary, capricious, or unreasonable about the Commission's disposition of the dispute. Even though it ruled in Messina's favor with respect to Varn's leapfrog, the choice of remedy was not a mistaken exercise of discretion. We owe substantial deference to the Commission's "'choice of remedy or sanction, seeing it as a matter of broad discretion, . . . especially where considerations of public policy are implicated.'" In re Herrmann, 192 N.J. 19, 34-35 (quoting N.J. Div. of State Police v. Jiras, 305 N.J. Super. 476, 482 (App. Div. l997), certif. denied, l 53 N.J. 52 (l998)).