M.B. v. DEPARTMENT OF HUMAN SERVICES

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

M.B.,

Appellant,

v.

DEPARTMENT OF HUMAN SERVICES,

Respondent.

_________________________________________________________

June 29, 2015

Submitted March 24, 2015 Decided

Before Judges Messano and Hayden.

On appeal from the Department of Human Services, Docket No. 13-08-36.

Michael Bordo, appellant pro se.

John J. Hoffman, Acting Attorney General of New Jersey, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephen Slocum, Deputy Attorney General, on the brief).

PER CURIAM

M.B., civilly committed to the Special Treatment Unit (STU) pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, appeals from the September 16, 2013 final agency decision of the Department of Human Services (DHS), denying him payment for unauthorized work he performed. For the reasons that follow, we affirm.

We discern the following facts from the record. As part of the STU treatment program, residents of the facility are allowed to perform certain types of work, for which they are paid. On June 12, 2013, M.B. was suspended for thirty days from his resident job as a kitchen worker due to "counterproductive behaviors associated with job responsibilities." M.B.'s suspension was to last from June 12, 2013 through July 12, 2013. On June 29, 2013, an STU Senior Rehabilitation Counselor issued a memorandum to M.B. advising him that he would be assigned to a "new phase effective" July 12, 2013.

Apparently realizing an error, STU Supervising Rehabilitation Counselor Sims issued a corrective memorandum advising M.B. that his new job assignment would not begin until August 1, 2013, and that he would be paid according to his new phase three status. According to Sims, she met with him that day to discuss the memo and told him he could not return to work until August 1. DHS issued the corrective memorandum to reflect its year-old policy that job assignments are made on the first day of each month. Nevertheless, M.B. resumed his job assignment on July 12, 2013 and proceeded to work for a total of twenty-eight hours during the month of July.1 DHS refused to pay M.B. for this work as it considered the work unauthorized.

On August 7, 2013, M.B. submitted an STU Request System & Remedy Form, the internal form used by STU residents to resolve grievances. On the form, M.B. acknowledged receiving the June 29 and July 2 memorandums, but argued that the July 2 memorandum was confusing and seemed to suggest that it only affected the next phase of his treatment. M.B. denied seeing any written rule or policy that job assignments are made on the first day of each month, and requested a copy of this policy or rule. On August 29, 2013, Sims, who authored the July 2 memo and met with M.B. to discuss the work assignment, denied M.B.'s request for payment, stating that M.B. had been informed about this policy in the July 2 memorandum and in previous conversations with STU officials.

M.B. submitted an administrative appeal, which STU Unit Director Tina Spagnuolo denied on September 16, 2013. In her response, she explained

On [June 29, 2013,] you were issued a memo by Ms. Bravo stating that your new phase would be effective 7/12/13 and you would be paid according to your phase 2 pay status. Ms. Sims noted the discrepancies, she met with you, and on 7/2/13 issued a new memo to you stating that your new phase 3 pay status would begin on 8/1/13 in accordance with our procedure for issuing new jobs, which is when you would be next eligible to return to work due to your suspension, if your treatment team was in agreement with you returning to work. This was ten days prior to the fulfillment of your suspension.

As you are aware, it has been approximately a year since we have changed the procedure for issuing new jobs to the first of the month. You were given advanced notice and should not have returned to work until 8/1/13. For these reasons your appeal is denied.

This appeal followed.

On appeal, M.B. argues that DHS's decision denying him payment for work performed was unreasonable as it was based on an unwritten policy or procedure. Specifically, M.B. contends that DHS's rule that work assignments are not scheduled until the first of the month was not included in the Residents Guide2 (Guide) and that DHS failed to advise him of this rule prior to him resuming work. He also contends he was not aware of the policy.

We must hew to our standard of review. Our scope of review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011). "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). In determining whether an agency's decision is arbitrary, capricious, or unreasonable, reviewing courts assess

(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)).]

"A reviewing court 'may not substitute its own judgment for the agency's, even though the court might have reached a different result.'" Stallworth, supra, 208 N.J. at 194 (quoting Carter, supra, 191 N.J. at 483). "This is particularly true when the issue under review is directed to the agency's special 'expertise and superior knowledge of a particular field.'" Id. at 195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)). However, "an appellate court is 'in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue[.]'" Carter, supra, 191 N.J. at 483 (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). Indeed, an agency's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995).

Here, we find that there was sufficient credible evidence in the record to support the agency's decision not to pay M.B. for unauthorized work. According to Sims, she met with M.B. and instructed him not to return to work until August 1. Thus, the record supports DHS's finding that M.B. knew that he was not permitted to perform any work until the first of the month as DHS informed him of this policy verbally and in writing. We also note that job assignments are a privilege given to residents "as an incentive for general good behavior and full participation in treatment." In M.X.L. v. N.J. Dep't of Human Servs., 379 N.J. Super. 37, 49 (App. Div. 2005), we held that "the loss [or] . . . reduction in job opportunities . . . do not trigger procedural due process protections." In the therapeutic setting of the STU, M.B.'s decision to work despite being told otherwise is not a decision that should be rewarded. Consequently, given our highly deferential standard of review, we find no reason to reverse the agency's reasonable decision here.

Moreover, we reject M.B.'s argument that DHS was required to publish a rule regarding its policy of assigning new jobs on the first day of each month. The New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-1 to -31, "guides State agencies in the implementation, amendment, repeal, or adoption of rules. An agency, however, has administrative authority to conduct informal action without . . . [being] subject to the weighty rulemaking provisions of the APA." E.B. v. Div. of Med. Assistance & Health Servs., 431 N.J. Super. 183, 206 (App. Div. 2013). The determination of whether administrative agency action constitutes adoption of a 'rule' is governed by the APA's definition of this term and the amplification of this definition in Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 331-32 (1984).

N.J.S.A. 52:14B-2(e) defines "rule" to mean "each agency statement of general applicability and continuing effect that implements or interprets law or policy[.]" Metromedia identified six factors that should be considered in determining whether an agency pronouncement is a "rule" under this definition

(1) [it] is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy.

[Metromedia, supra, 97 N.J. at 331-32.]

"Not all factors need be present for an agency action to qualify as an administrative rule." In re Provision of Basic Generation Serv. for Period Beginning June 1, 2008, 205 N.J. 339, 350 (2011).

Having considered each of the enumerated Metromedia factors, we are satisfied that the agency procedure to set the first date of the month as the uniform time to assign new jobs is an unassailable exercise of the agency's authority that falls outside the scope of Metromedia. It does not create a new right or obligation or take away any privileges; it merely allows for a uniformity of a start date for the privilege of working. Metromedia does not require that every agency policy or procedure, no matter how minor, be promulgated as a rule. This is so because agencies must be "flexible and responsive to changing conditions." In re Pub. Serv. Elec. & Gas Co. Rate Unbundling, 167 N.J. 377, 385 (2001) (internal citations omitted). Residents have no right to a job and, consequently, cannot dictate when a job is to begin. See M.X.L., supra, 379 N.J. Super. at 49; see also N.J.A.C. 10:36A-2.2, -2.3. There was no Metromedia violation here.

Affirmed.

1 We note that while the parties indicated that M.B. worked a total of twenty-four hours in July, the record suggests it was actually twenty-eight.

2 DHS subsequently amended the Guide in January 2014 to include this policy.