IN THE MATTER OF HAROLD NUGENT

NOT FOR PUBLICATION WITHOUT THE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 HAROLD NUGENT,

BRICK TOWNSHIP.

_____________________________________

December 2, 2015

Argued September 17, 2015 Decided

Before Judges Fuentes, Koblitz and Gilson.

On appeal from the New Jersey Civil Service Commission, Docket No. 2013-251.

Anthony S. Almeida argued the cause for appellant Harold Nugent (Mashel Law, L.L.C., attorneys; Stephan T. Mashel, of counsel and on the brief; Mr. Almeida, on the brief).

Louis N. Rainone argued the cause for respondentBrick Township(DeCotiis, FitzPatrick & Cole, LLP, attorneys; Mr. Rainone, ofcounsel; Victoria A. Flynn, on the brief).

John J. Hoffman, Acting Attorney General, attorney for New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the brief).

PER CURIAM

Harold Nugent appeals the final decision of the Civil Service Commission (Commission) issued on April 17, 2013, that upheld the Township of Brick's decision not to appoint him to the position of Mechanic in the Department of Public Works (DPW). We affirm.

We gather the following facts from the record developed before the Commission. Nugent was first hired as a Laborer 1 in the Township's DPW on June 1, 2004. After serving for more than two years in this capacity, he was promoted and permanently appointed to the position of Mechanic Helper effective April 5, 2007. The Township experienced substantial revenue shortfalls in 2008, requiring layoffs of a number of employees throughout the municipality. Nugent was among the employees affected by this austerity measure. He was laid off from his position as Mechanic Helper in the DPW effective December 31, 2008. Thereafter, the Township placed Nugent's name on a special reemployment list for Mechanic Helper and Laborer 1.

Nugent and a number of similarly affected employees appealed the Township's action to the Commission, challenging the good faith basis of the layoff plan. The matter was transferred to the Office of Administrative Law for an evidentiary hearing before an Administrative Law Judge (ALJ). Nugent and twelve other appellants testified at this hearing. The ALJ summarized Nugent's testimony in his Initial Decision to the Commission. Nugent claimed the Township acted in bad faith when it denied his request to be transferred to the Parks and Recreation Department, while transferring other employees who were not affected by the layoff. Nugent argued to the ALJ that this demonstrated the Township's "bad faith" because he did not see the posting for the position in the Parks and Recreation Department and therefore did not have the opportunity to apply for the position.

The ALJ noted that Nugent acknowledged he was not aware whether layoffs were planned before this position was filled, nor did he know if the Parks and Recreation Department had a position available related to positions he had previously held in the DPW. Despite these evidential shortcomings, Nugent maintained the Township acted in bad faith in 2010 when it hired a mechanic from the outside to serve in the Parks and Recreation Department. Although he never worked in this department, Nugent claimed he "knew the Township system and equipment from working in his former [DPW] position."

In upholding the Township's layoff plan, the ALJ expressly rejected Nugent's factual claims and legal arguments. After reviewing the applicable law, the ALJ concluded "the appellants have failed to demonstrate that their layoff was not motivated by true considerations of economy and/or efficiency. They have also failed to demonstrate bad faith." The Commission issued a final decision dated September 7, 2011, adopting the ALJ's findings and recommendations. In the Matter of Brick Township Layoffs 2008, Agency Docket No. 2009-2375.

On January 8, 2010, the Township had an open competitive examination for the position of mechanic in the DPW. A total of ten individuals applied to take the examination; seven of whom were deemed eligible, including Nugent. This list of seven eligible candidates had an expiration date of March 24, 2013. The list was certified on March 30, 2010, and again on June 8, 2012. It is undisputed that the Township appointed a number of individuals whose names were on this list on March 30, 2010 and June 8, 2012, and that Nugent was not one of them. It is equally undisputed that Nugent did not appeal the Township's actions at the time these appointments were made.

As part of this appeal, Nugent claims he was entitled to "highest priority" status in a reemployment list for the position of Mechanic Helper, Laborer, or a commensurate position in any department within the Township. Consequently, Nugent argues the Township violated his "priority" right to these positions when he was "passed over" for the position of Laborer 1 that became available in August 2009.

Independent of these challenges, Nugent also argues he was improperly denied appointment to a position of Mechanic in the DPW that became available in 2012. The record shows Nugent was notified of this certification on June 15, 2012. He took the open competitive examination for this position and ranked number one, along with three other candidates. On June 21, 2012, the Township informed Nugent he had not been selected for the Mechanic position; the Township decided to appoint two other equally-ranked applicants. The only reason the Township provided for not appointing Nugent was that the decision to appoint the other two candidates was "in the best interest of the [Township]."

Nugent argued before the Commission, and continues to argue in this appeal that this statement of reason uses the type of boilerplate language the Supreme Court found constitutionally deficient in In re Foglio, 207 N.J. 38 (2011). According to Nugent, the Township's failure to provide an expansive and individually fact-sensitive explanation for its decision violates the constitutional requirement that "all appointment or promotion decisions be 'merit and fitness' based, 'as far as practicable' on competitive examination." Id. at 48. (Quoting N.J. Const. art. VII, 1, 2.)

The Commission rejected Nugent's argument, noting that pursuant to N.J.S.A. 11A:4-8 and N.J.A.C. 4A:4-4.8(a)(3), an appointing authority may select any of the top three interested eligible candidates on an open competitive list, provided no veteran heads the list.1 Nugent argues the Commission's interpretation of N.J.S.A. 11A:4-8 and N.J.A.C. 4A:4-4.8(a)(3) is inconsistent with the Court's decision in Foglio, which was predicated on the requirements in Article VII, 1, 2 of our State's Constitution. We disagree.

As succinctly stated by Justice Long in Foglio: "The required statement needs to address the reasons why a higher ranked candidate was bypassed." Foglio, supra, 207 N.J. at 49. (Emphasis added). Here, the Township selected two other equally-ranked candidates. Under these circumstances, the Township was entitled not to appoint Nugent, as long as the decision was not based on legally impermissible grounds such as race, gender, sexual orientation, or other similar invidious considerations.

Our review of a final decision of a State administrative agency is limited. Lavezzi v. State, 219 N.J. 163, 172 (2014). We are bound to affirm the agency's factual findings as long as they are supported by substantial evidence in the record, even if we would have reached a different result. In re Stallworth, 208 N.J. 182, 194 (2011). We also afford the administrative agency's decision a "strong presumption of reasonableness" when it is discharging a particular statutorily delegated responsibility. Lavezzi, supra, 219 N.J. at 171. Ultimately, we will uphold the agency's final decision unless an appellant has shown it was "arbitrary, capricious, or unreasonable, or it is not supported by substantial credible evidence in the record as a whole." Ibid.

Here, we are satisfied the Commission correctly found Nugent did not seek a timely review of the Township's 2009 and 2010 decisions concerning applications for positions outside the DPW. Notwithstanding this impediment, the mechanic helper announcement at issue was a promotional position within the Department of Parks and Recreation. Because Nugent was laid off from the DPW, his placement on a special reemployment list for that department does not give him priority over a promotional announcement in the Department of Parks and Recreation. N.J.S.A. 11A:4-12.

Affirmed.

1 N.J.S.A. 11A:4-8 expressly provides that: "If more than one eligible has the same score, the tie shall not be broken and they shall have the same rank." N.J.A.C. 4A:4-4.8(a)(3) also authorizes the appointing authority to: "Appoint one of the top three interested eligibles [sic] (rule of three) from an open competitive or promotional list." However, as the Commission noted, the mandate is different when one of the candidates is a veteran.