IN THE MATTER OF A.B. COUNTY CORRECTIONS OFFICER ESSEX COUNTY

NOT FOR PUBLICATION WITHOUT THE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 A.B.,

COUNTY CORRECTIONS OFFICER,

ESSEX COUNTY.1

________________________________________

March 27, 2015

Argued February 24, 2015 Decided

Before Judges Yannotti and Fasciale.

On appeal from the Civil Service Commission, Docket No. 2013-1286.

Luretha M. Stribling argued the cause for appellant A.B.

Courtney M. Gaccione, Chief, Labor and Employment, argued the cause for respondent County of Essex (James R. Paganelli, Essex County Counsel, attorney; Ms. Gaccione, on the brief).

Todd A. Wigder, Deputy Attorney General, argued the cause for respondent Civil Service Commission (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Wigder, on the brief).

PER CURIAM

A.B. appeals from a final determination of the Civil Service Commission (the "Commission"), issued on October 17, 2013, which restored his name to the list of persons eligible for appointment as a corrections officer in the County of Essex (the "County"); ordered that, upon the completion of his working test period, the appointment would be retroactive for salary-step placement and seniority; but refused to award him back pay, counsel fees, or other relief. We affirm.

The appeal arises from the following facts. A.B. was deemed eligible for appointment to the position of corrections officer, and the County offered A.B. the position, contingent upon the results of a psychological fitness examination. Susan A. Furnari, D.Ed. ("Dr. Furnari"), a licensed consulting psychologist, performed the examination for the County, and issued a report recommending against A.B.'s appointment.

Among other things, Dr. Furnari found that A.B.'s psychological profile was marked by deficiencies in his intellectual reasoning capabilities. She stated that A.B. did not have "the personal awareness and depth of ability required to perform a position with the challenges and dangers of [a] [c]orrections [o]fficer." Based on Dr. Furnari's report, the County requested that A.B. be removed from the eligible list on the ground of psychological unfitness.

A.B. appealed to the Commission, which referred the matter to the Medical Review Panel (the "Panel") for its review and recommendation. A.B. submitted a report from Ronald G. Silikovitz, Ph.D. ("Dr. Silikovitz") to the Panel. Based on his evaluation, Dr. Silikovitz disputed Dr. Furnari's opinions that A.B. did not have an understanding of the position of corrections officer and lacked the ability to perform the duties involved.

Dr. Silikovitz stated that A.B. had demonstrated a good understanding of the general responsibilities of the position, including the dangers and challenges involved. Dr. Silikovitz noted that there was no evidence of any diagnosable psychopathology or the presence of any psychotic diagnosis. He stated that, based on his assessment, A.B. was fit to serve as a corrections officer.

The Panel considered the appeal on July 25, 2013, and interviewed A.B. On August 14, 2013, the Panel issued a report and recommendation to the Commission. The Panel noted that it had the overall impression that A.B. "had the intellectual capacity to perform the duties of a [c]orrections [o]fficer and that he [had] displayed a pattern of responsibility and a strong work ethic in his work life."

The Panel found that, upon consideration of Dr. Furnari's and Dr. Silikovitz's reports, A.B.'s behavioral record, the results of the tests administered and other information, A.B. was mentally fit "to perform effectively the duties of the position" and therefore the County's action should not be upheld. The Panel recommended that A.B. be restored to the candidate-eligibility list.

The Commission reviewed the Panel's report and recommendation and issued a final decision on October 17, 2013. The Commission found that the County had not carried its burden to show that A.B. was not psychologically fit to perform the duties of a corrections officer and directed that his name be restored to the list of eligible candidates for the position.

The Commission ordered that, upon the successful completion of his working test period, A.B. shall be granted "a retroactive date of appointment . . . for salary step placement and seniority-based purposes only." The Commission refused to grant A.B. any other relief, including back pay and counsel fees.

On appeal, A.B. argues that the Commission's refusal to award him back pay, benefits and counsel fees is arbitrary, capricious and unreasonable. He contends the Commission erred by failing to provide him complete relief for his erroneous removal from the list of eligible candidates for the position of corrections officer.

It is well established that "[i]n light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." In re Musick, 143 N.J. 206, 216 (1996) (citing Gloucester Cnty Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). Our review of an agency's decision is limited to whether: (1) the decision is consistent with the applicable law; (2) there is substantial credible evidence in the record to support the agency's factual findings; and (3) in applying the law 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." Ibid. (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

The Commission may only award back pay and counsel fees as authorized by rule. N.J.S.A. 11A:2-22. The award of back pay is governed by N.J.A.C. 4A:2-2.10(a), which provides in part that the Commission may award back pay when a disciplinary penalty is reversed or modified. The award of counsel fees is governed by N.J.A.C. 4A:2-2.12(a). Among other things, this regulation states that the Commission "shall award partial or full reasonable counsel fees incurred in proceedings before it and incurred in major disciplinary proceedings at the departmental level where an employee has prevailed on all or substantially all of the primary issues before the Commission."

In addition, N.J.A.C. 4A:2-1.5(b) provides that

[b]ack pay, benefits and counsel fees may be awarded in disciplinary appeals and where a layoff action has been in bad faith. See N.J.A.C. 4A:2-2.10. In all other appeals, such relief may be granted where the appointing authority has unreasonably failed or delayed to carry out an order of the [Commission] or where the Commission finds sufficient cause based on the particular case.

The rule further provides that sufficient cause for the award of back pay, benefits and counsel fees may be found where an employee demonstrates that the employer acted in bad faith or with invidious motivation. Ibid.

The aforementioned rules are included in Title 4, Chapter 2 of the Administrative Code, which pertains to disciplinary proceedings. The rules only authorize the Commission to award back pay and counsel fees in disciplinary proceedings. See Oches v. Twp. of Middletown Police Dep't, 155 N.J. 1, 8 (1998) (noting that N.J.S.A. 11A:2-22 and N.J.A.C. 4A:2-2.12 only permit the award of counsel fees in disciplinary matters); DelRossi v. Dep't of Human Servs., 256 N.J. Super. 286, 288-89 (App. Div. 1992) (holding that N.J.A.C. 4A:2-2.10(a) and N.J.A.C. 4A:2-1.5(b) only allow the award of back pay, benefits and attorney's fees in disciplinary appeals).

This proceeding is not a disciplinary matter. Rather, as we have explained, A.B.'s administrative appeal challenged the removal of his name from the list of eligible candidates for a position based on concerns about his psychological fitness to perform the duties of the job effectively. The Commission's decision to refuse to award A.B. back pay, benefits and counsel fees was entirely consistent with the governing statute and regulations and supported by sufficient credible evidence in the record.

A.B. argues, however, that the removal of his name from the eligible list was, in essence, a disciplinary matter. He also argues that the Commission acted arbitrarily, capriciously and unreasonably by failing to provide him with what he calls complete relief. These arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

1 We use initials in the caption and the opinion to protect the party's privacy.