IN THE MATTERS OF CYNTHIA BUCCHI, MARIA D'ANGELO, ROSALIND R. JAMES, CARLA M. LEWIS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1266-04T21266-04T2

IN THE MATTERS OF CYNTHIA BUCCHI,

MARIA D'ANGELO, ROSALIND R. JAMES,

CARLA M. LEWIS, and RHONDA

MC LAREN, MANAGEMENT ASSISTANT

(PS5831F), DEPARTMENT OF

EDUCATION

DOP DOCKET NO. 2004-2386

_____________________________

 

Argued February 6, 2006 - Decided February 27, 2006

Before Judges Parrillo and Gilroy.

On appeal from a Final Agency Decision of the

Merit System Board, Department of Personnel,

Docket No. 2002-2088.

Walter R. Bliss, Jr. argued the cause for

appellants, Cynthia Bucchi, Maria D'Angelo,

Rosalind R. James, Carla M. Lewis and Rhonda

Mc Laren.

Pamela N. Ullman, Deputy Attorney General, argued

the cause for the Merit System Board (Zulima V. Farber, Attorney General of New Jersey, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel, and Ms. Ullman, on the brief).

PER CURIAM

These five consolidated appeals raise common questions concerning whether the work experientials of five civil service employees, in lieu of the requisite educational credential, qualify them to sit for the promotional examination for the position of Management Assistant. The Merit System Board (Board) found each of them ineligible and further denied their motion for reconsideration. Appellants appeal from these determinations, and we affirm.

The facts are not contested. Appellants, Cynthia Bucchi, Maria D'Angelo, Carla Lewis, Rosalind James and Rhonda McLaren, are civil service employees of the State Department of Education (DOE). They applied to take the promotional examination for Management Assistant, with a closing date of October 21, 2002. The applications were submitted pursuant to a promotional announcement posted by the Department of Personnel (DOP) on October 1, 2002.

The examination was open to employees in the competitive division who had an aggregate of one year of continuous permanent service as of the closing date and met the requirements of a Bachelor's degree and one year of experience in "coordinating, reviewing and/or evaluating of organization or administrative needs and recommending improved methods in a business or government agency." Applicants who did not possess the required education could substitute experience as indicated on a year-for-year basis.

None of the appellants had obtained college degrees and therefore each relied, in varying degrees, on the substitution of work experience for education to meet the posted job requirements. All appellants were found ineligible to sit for the promotional examination by the Division of Selective Services (Division) within the DOP, which held that they lacked sufficient applicable experience to substitute, on a year-for-year basis, for the college degree.

On appeal to the Board, appellants argued that their employment experiences should have counted as a substitute for the Bachelor's degree to render them eligible for the examination. Three of the appellants, Bucchi, James and Lewis, also argued that they qualified for admission to the examination because after the closing date, their positions were reclassified to Management Assistant and that they were provisionally appointed to the positions. The Board denied the appeals, reasoning:

[A]ppellants did not meet the announced requirements for eligibility by the examination closing date, is amply supported by the record, and appellants provide no basis to disturb that decision. All appellants required additional applicable experience per the substitution clause for education. In addition, none of the appellants had a total of five years applicable experience in coordinating, reviewing and/or evaluating organization or administrative needs and recommending improved methods in a business or government agency. However, even assuming, arguendo, that the experience listed by appellants, on appeal, established eligibility, N.J.A.C. 4A:4-2.1(f) specifically provides that an applicant may amend a previously submitted application only prior to the closing date. Moreover, no basis exists, in the present competitive situation, for a rule relaxation pursuant to N.J.A.C. 4A:1-1.2(c).

Lastly, on the question of the reclassification of the titles for appellants Bucchi, James, and Lewis and their suggestion that this reclassification should be considered an additional basis for deeming them eligible for the subject examination, it should be noted that the ensuing reclassifications became effective after the closing date of the title under test. Thus, the fact that the job duties of appellants justified reclassification to the subject title, does not answer the critical inquiry here, which is whether they had sufficient experience, as per the substitution clause, to establish eligibility for the present examination as of the October 21, 2002 closing date.

Appellants moved for reconsideration. Appellants Bucchi, James and Lewis, argued that the Board erred by failing to give adequate consideration to the fact that their positions were reclassified to Management Assistant and that they were provisionally appointed to the title under test, albeit after the closing date of the examination. In addition, James, Lewis, D'Angelo and McLaren argued, for the first time, that the Board erred when it failed to consider as applicable their years of experience as Education Program Assistants 1 and 2, Environmental Specialist 1, and/or Word Processing Specialists, because work experience in these titles had been previously recognized by the DOE and the DOP in making promotions to the Management Assistant title.

The Board denied the motion for reconsideration, finding no material error in its previous decision; no new evidence that would change the outcome of the case; and no reasons that such evidence was not presented at the original proceeding, pursuant to N.J.A.C. 4A:2-1.6(b). In response to the arguments of three appellants concerning their provisional appointments, the Board concluded:

[T]he fact that some petitioners were appointed provisionally, pending promotional examination procedures, in the title under test is immaterial. The provisional appointments were effected after the closing date and pursuant to a reclassification of their titles. However, the critical question here is whether they met the eligibility requirements for the title under test as of the announced closing date. The record presented on appeal and on reconsideration establishes that they did not meet the requirements for eligibility to sit for the examination.

The Board then addressed appellants' "past practice" argument although not previously raised in contravention of N.J.A.C. 4A:2-1.6(b):

The argument presented by petitioners rests on the assumption that being an Education Program Assistant or a Word Processing Specialist automatically qualifies a candidate for eligibility for the title of Management Assistant. However, there may have been various reasons why the individuals in question were appointed as Management Assistants, such as prior private sector work that was found to be applicable, out-of-title work duties that may be been accepted for purposes of establishing examination eligibility, the announcement may have been open to their titles, the open competitive requirements may have simply been different at the time that the announcement was issued, or, more fundamentally, the information supplied by these individuals on their application may have more clearly established that they were performing the applicable functions for the required length of time. It should be underscored that none of the petitioners possessed Bachelor's degrees as of the closing date and, thus, needed to establish, as per the substitution clause, that they had the required years of experience. In short, the information supplied by the petitioners on their applications did not establish that they had, as of the announced closing date, the required experience.

The Board further reasoned that:

The other possibility that remains is that the other individuals alluded to by petitioners may have been admitted in error to the examination for Management Assistant. However, even assuming, arguendo, that the individuals were admitted in error to the examination, this factor alone would not entitle petitioners to any relief, since it is well settled that no vested or other rights are accorded by an administrative error. See, Cipriano v. Department of Civil Service, 151 N.J. Super. 86 (App. Div. 1977); O'Malley v. Department of Energy, 109 N.J. 309 (1987); HIP of New Jersey v. New Jersey Department of Banking and Insurance, 309 N.J. Super. 538 (App. Div. 1998).

Lastly, on the question of whether the admission of the referenced individuals holding Education Program Assistant or Word Processing Specialist titles to the examination for Management Assistant constitutes a past practice, as noted above, there are many reasons why these individuals could have been admitted and insufficient evidence has been presented in this record to establish a past practice in this regard.

The Board concluded that it was:

unable to perceive of any basis, in the present record, to grant petitioners' requests for reconsideration of its previous decision. In that decision, the Board found that the petitioners' challenges to their ineligibility lacked merit. The present record reflects that appellants have undoubtedly many years of service with the State, but work in coordinating, reviewing, and/or evaluating of organization or administrative needs and recommending improved methods in a business or government agency has not been the primary focus of those positions. Nothing presented by petitioners on reconsideration convinces the Board that its previous determination was in error.

On appeal, appellants raise the following issues:

I. THE BOARD'S DENIAL OF PETITIONERS' REQUEST FOR RECONSIDERATION WITHOUT FINDINGS OF FACT OR STATEMENT OF REASONS ADDRESSED TO THE ASSERTED GROUNDS FOR THE REQUEST WAS REVERSIBLE ERROR.

II. THE BOARD'S REFUSAL TO RECOGNIZE PETITIONERS' WORK EXPERIENCE AS APPLICABLE EXPERINECE WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE.

III. IF THE BOARD IS NOT ABLE TO PROVIDE AN EXPLICATION OF PAST PRACTICE IN THE ADMISSION OF APPLICANTS TO EXAMINATION, APPELLANTS ARE ENTITLED TO DISCOVERY AND HEARING.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(D) & (E). We affirm substantially for the reasons stated by the Board in its written decisions of December 10, 2003, and September 27, 2004. We add, however, only the following comments.

The New Jersey Constitution states:

Appointments and promotions in the civil service of the State, and of such political subdivisions as may be provided by law, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive; except that preference in appointments by reason of active service in any branch of the military or naval forces of the United States in time of war may be provided by law.
 
[N.J. Const., art. VII, 1, 2.]

As a result of this mandate, the Civil Service Act, N.J.S.A. 11A:1-1 to -12-6, delegates broad power over all aspects of the career service to the DOP, consisting of a Commissioner and the Merit System Board. See N.J.S.A. 11A:2-6 and N.J.S.A. 11A:2-11. See also Mullin v. Ringle, 27 N.J. 250, 256 (1958). The Commissioner is charged with the responsibility of "announc[ing] and administ[ering] . . . examinations . . . [to] test the knowledge, skills and abilities required to satisfactorily perform the duties of a title . . . ." N.J.S.A. 11A:4-1. The DOP must not only establish jobs, but also set qualifications for those jobs, administer tests to fill those jobs, and then oversee and administer the selection process. Thus, for instance, "[t]he Commissioner shall establish the minimum qualifications for promotion and shall provide for the granting of credit for performance and seniority where appropriate." N.J.S.A. 11A:4-14.

To this end, the Board was granted the power to "[a]dopt and enforce rules to carry out this title and to effectively implement a comprehensive personnel management system." N.J.S.A. 11A:2-6. Hence, the Board promulgated N.J.A.C. 4A:4-2.6, which enumerates the necessary requirements a candidate must meet to establish whether they are eligible for a promotion. Among other things, the regulation provides:

(c) Except when permitted by the Merit System Board for good cause, such as a documented affirmative action basis, applicants for promotional examinations with open competitive requirements may not use experience gained as a result of out-of-title work to satisfy the requirements for admittance to the examination or for credit in the examination process. The Department of Personnel may recommend to the Board good cause situations where out-of-title work should be accepted.

[N.J.A.C. 4A:4-2.6.]

In light of its authority and expertise, a reviewing court will not interfere in the DOP's exercise of authority unless its determination "'is patently incompatible with the language and spirit of the law.'" In re Hudson County Prob. Dep't, 178 N.J. Super. 362, 371 (App. Div. 1981) (quoting Walsh v. Civil Serv. Dep't, 32 N.J. Super. 39, 44 (App. Div. 1954), certif. granted, 17 N.J. 182 (1955) (subsequently dismissed)). Moreover, "a 'strong presumption of reasonableness attaches'" to a decision of the Board. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)), certif. denied, 170 N.J. 85 (2001). Thus, we uphold a Board's decision if the evidence supports the decision, even if we may question the wisdom of the decision or would have reached a different result. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001). Courts "have a strong inclination to defer to agency action provided it is consistent with the legislative grant of power." Lewis v. Catastrophic Illness in Children Relief Fund, 336 N.J. Super. 361, 370 (App. Div. 2001).

When an administrative agency interprets and applies a statute it is charged with administering in a manner that is reasonable, not arbitrary or capricious, and not contrary to the evident purpose of the statute, that interpretation should be upheld, irrespective of how the forum court would interpret the same statute in the absence of regulatory history.
 
[Blecker v. State, 323 N.J. Super. 434, 442 (App. Div. 1999); Reck v. Dir., Div. of Taxation, 345 N.J. Super. 443, 448 (App. Div. 2001), aff'd, 175 N.J. 54 (2002).]

Governed by these standards, we are satisfied that the Board's decision comports with applicable legislative policies and is neither arbitrary, capricious nor unreasonable. Appellants have presented no "good cause" reason to allow out-of-title work to be credited toward their experience requirement, and the record does not otherwise admit that such work qualifies as the required type of experience for the promotional title. Nor does the record establish appellants' eligibility simply by either reclassification or past practice. The Board rejected both arguments as without merit for reasons detailed in its denial of appellants' reconsideration motion and we find no warrant to interfere with that sound reasoning.

 
Affirmed.

The announcement provided in pertinent part:

Applicants who do not possess the required education may substitute additional experience as indicated on a year for year basis with thirty (30) semester hour credits being equal to one (1) year of experience.

Experience: One (1) year of experience in coordinating, reviewing, and/or evaluating of organization or administrative needs and recommending improved methods in a business or government agency.

(continued)

(continued)

12

A-1266-04T2

February 27, 2006