IN THE MATTER OF JUSTIN GABRYS

NOT FOR PUBLICATION WITHOUT THE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 JUSTIN GABRYS,

TOWN OF DOVER.

___________________________________________________

December 19, 2014

Submitted October 7, 2014 Decided

Before Judges Messano and Hayden.

On appeal from the Civil Service Commission, Docket No. 2013-165.

Loccke, Correia, Limsky & Bukosky, attorneys for appellant Police Benevolent Association, Local 107 (Marcia J. Tapia, of counsel and on the brief).

Cleary Giacobbe Alfieri Jacobs, LLC, attorneys for respondent Town of Dover (Matthew J. Giacobbe and Gina L. Anton, on the brief).

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

PER CURIAM

Intervener, Police Benevolent Association, Local 107 (the union), appeals from the final agency decision of the Civil Service Commission granting the Town of Dover's request to relax the Commission's rules in order to (1) change Officer Justin Gabrys' employment record from a resignation to an authorized unpaid leave of absence; and (2) permit Gabrys to retain his seniority and tenure from the time of his resignation in order to sit for the promotional exam for sergeant. For the reasons that follow, we reverse and remand for the union to receive notice of Dover's request for a rule relaxation prior to the Commission making a decision on Dover's request.

Gabrys was a police officer with Dover from January 16, 2001 through June 26, 2011, when he resigned from the police department in order to accept a position with the Morris County Prosecutor's Office. On July 18, 2012, Dover filed a request with the Commission for a rule relaxation regarding "the reemployment and promotional eligibility" of Gabrys. In its request, Dover stated that "several police officers retired from the Town['s] Police Department leaving several senior-level positions vacant and in need of fulfillment." Dover specifically sought a relaxation of the Commission's rules regarding eligibility criteria for promotional examinations under N.J.A.C. 4A:4-2.6(b), and restoration of Gabrys' name on the promotional list for sergeant under N.J.A.C. 4A:4-4.7(a). Additionally, Dover's request required the Commission to relax its rule regarding leaves of absence under N.J.A.C. 4A:6-1.1(a)(2).

The stated purpose of Dover's request was to enable Gabrys to return to the Dover police department "with seniority rights and promotional eligibility" in order to fill one of the open senior-level positions. To accomplish this, Dover requested the Commission to characterize Gabrys' employment with the Morris County Prosecutor's Office as an authorized unpaid leave of absence instead of a resignation. This revision would permit Gabrys to retain his permanent Civil Service status and accumulated seniority with Dover, thereby enabling him to be placed on the list of those eligible for appointment to the position of sergeant.

In the Commission's September 20, 2012 final decision, the Commission granted Dover's request to revise Gabrys' records to reflect that he was on an authorized unpaid leave of absence during his time with the Morris County Prosecutor's Office. The Commission also determined that Gabrys' service before his leave of absence would be aggregated upon his reemployment with Dover thereby making him eligible to sit for the next promotional exam for sergeant.

Prior to issuance of the final decision, neither the Commission nor Dover advised the union of Dover's request. Upon learning of the decision, the union filed a motion with the Commission seeking to intervene as a party of interest, for the Commission to reconsider its decision, and for a stay pending appeal. Additionally, the union filed a notice of appeal with this court. On November 21, 2012, the Commission granted the union's request to intervene, noting that the "decision could [a]ffect some of its members[.]" However, the Commission dismissed the union's request for reconsideration due to the pending appeal and denied the motion for a stay.1 This appeal followed.

We begin by stating our standard of review. Our role in reviewing an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). The reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008) (citing In re Herrmann, 192 N.J. 19, 28 (2007)). The party challenging the agency's action has the burden of proving that the action was arbitrary, capricious, or unreasonable. DiNapoli v. Bd. of Educ., 434 N.J. Super. 233, 236 (App. Div.) (citing In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006)), certif. denied, 217 N.J. 589 (2014).

However, no deference is accorded to an agency's determination of a strictly legal issue. Norfolk S. Ry. Co. v. Intermodal Props., LLC, 215 N.J. 142, 165 (2013) (internal citations omitted). As such, "[w]e review the agency's legal conclusions de novo." DiNapoli, supra, 434 N.J. Super. at 236 (citing City of Atlantic City v. Trupos, 201 N.J. 447, 463 (2010)).

Further, "our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). Our role is not merely to "rubber-stamp" an agency's actions but "to engage in a 'careful and principled consideration of the agency record and findings.'" Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting Mayflower Sec. Co., Inc. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). Indeed, "if there exists in the reviewing mind a definite conviction that the determination below went so wide of the mark that a mistake must have been made, the record can be appraised as if the matter were being decided at its inception." 613 Corp. v. State, Div. Of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986).

The union argues on appeal that the Commission's decision inappropriately ignored its own regulations. The union asserts that no rule relaxation was needed because numerous qualified Dover police officers without any break in service were eligible to take the necessary tests and fill any vacancies. In addition, the union argues that the Commission should not have relaxed its own regulations because the relaxation affected several of its members but no notice was provided to the union or the affected officers pursuant to N.J.A.C. 4A:1-1.2(c). We agree that the final decision is impermissibly flawed because the notice to affected parties required by N.J.A.C. 4A:1-1.2(c) was not given here.

The New Jersey Constitution requires that civil service appointments and promotions "be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive[.]" N.J. Const. art. VII, 1, 2. To further that constitutional mandate, "the Legislature, under the New Jersey Civil Service Act, N.J.S.A. 11A:1-1 to 12-6, has declared that the selection and advancement of state employees should be dependent on considerations of merit, N.J.S.A. 11A:1-2(c), and determined on the basis of relative knowledge, skill, and ability, N.J.S.A. 11A:1-2(a)." In re Police Sergeant, 176 N.J. 49, 57 (2003). By prescribing requirements for appointment and advancement based on merit and ability, "the Act seeks to put civil service positions beyond political control, partisanship, and personal favoritism." Commc'n Workers of Am. v. N.J. Dep't of Pers., 154 N.J. 121, 126 (1998) (citations omitted).

The Commission has promulgated administrative regulations to effectuate its statutory mandates. See N.J.A.C. 4A:1-1 to 10-3.2. According to N.J.A.C. 4A:1-1.2(c),

These rules shall be considered the means by which the statutory purposes of the merit employment system are carried out. The Commissioner or the Board may relax these rules for good cause in a particular situation, on notice to affected parties, in order to effectuate the purposes of Title 11A, New Jersey Statutes.

When N.J.A.C. 4A:1-1.2(c) was first proposed in 1987, the agency explained that its purpose was to allow relaxation of the rules "where strict adherence would result in injustice, unfairness or inconsistency with the overall objectives of the Merit system." 19 N.J.R. 1827 (Oct. 5, 1987). The agency stated that the "intent of N.J.A.C. 4A:1-1.2(c) was to provide a mechanism . . . to prevent the strict application of the rules to create an inequitable situation not intended by N.J.S.A. 11A." Ibid. The agency amended the proposed rule to include a provision that affected parties be notified of rule relaxation requests. Ibid.

Here, the union was not notified as required under the rule relaxation regulation despite the fact that its members were affected by the request. Indeed, the Commission itself recognized that the union should have been a participant in the earlier proceeding as the "decision could [a]ffect some of its members[.]" Hence, the Commission's decision to relax its rules and regulations was made without following N.J.A.C. 4A:1-1.2(c). As administrative regulations have the force of law, an "agency ordinarily must enforce and adhere to, and may not disregard, the regulations it has promulgated." Cnty. Of Hudson v. Dep't of Corr., 152 N.J. 60, 70 (1997); see also In re CAFRA Permit No. 87-0959-5, 152 N.J. 287, 306-07 (1997) (noting that administrative agencies must follow its own rules and regulations). Consequently, the Commission was not free to ignore the clear mandate in the regulation that the regulations could be relaxed "on notice to affected parties[.]"

Dover claims that the agreement of the employer and the employee to relax the rule and the need for experienced police officers in Dover were sufficient to meet the regulation's requirement of good cause for rule relaxation. Dover utilizes In re Martinez, 403 N.J. Super. 58 (App. Div. 2008), to support its contention that the Commission can relax its rules in response to an agreement of the employer and the employee, and even though other affected individuals were not notified of the requested rule relaxation when it was proposed. Id. at 64, 73-75. Dover's reliance is misplaced here. In Martinez, the Merits System Board2 relaxed a rule concerning the taking of a promotional test as a result of the settlement of a lawsuit that showed that the affected individual had been improperly bypassed for promotion. Id. at 63-64. Thus, waiving the rule was granted not solely because of the joint request but also because the Board found that the waiver was an equitable remedy to make the employee whole and put him in the position he would have been if not for the improper bypass.

No such extraordinary situation existed here. Gabrys resigned to obtain other employment and if he desired to return to the employment of Dover after his voluntary resignation, he would be employed from the ordinary reemployment list under the normal course of procedures governing the Civil Service statutes. See N.J.A.C. 4A:4-3.9. To not follow the applicable leave, promotional and seniority regulations certainly affects the seniority of the other police officers who continued working for the Dover police department. Thus, the union should have been notified and been able to provide input before a decision was made on the request because, as the Commission later recognized in permitting intervention, the decision affected some of its members. N.J.A.C. 4A:1-1.2(c). The Commission has offered no reasonable explanation for its failure to follow the expressed language of its regulation.

In our view, the plain language and stated intent of the regulation requires the affected parties receive notice and an opportunity to provide input before the Commission determines pursuant to the rule whether "strict adherence would result in injustice, unfairness or inconsistency with the overall objectives of the Merit System." 19 N.J.R. 1827. Consequently, we are constrained to reverse the final decision of the agency and remand for proceedings in accord with this opinion.

Reverse and remand. We do not retain jurisdiction.

1 This court granted a stay on April 3, 2013.

2 Now the Civil Service Commission. N.J.S.A. 11A:2-1.