IN THE MATTERS OF ROBERT VARCADIPANE et al. v.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2524-05T22524-05T2

IN THE MATTERS OF

ROBERT VARCADIPANE and

JOHN C. WELSH, COUNTY

CORRECTION OFFICER,

PASSAIC COUNTY.

________________________________________________

 

Submitted February 15, 2007 - Decided March 12, 2007

Before Judges Collester and Lyons.

On appeal from a Final Administrative Decision of the Merit System Board, Docket Nos. 2006-3200 and 2006-264.

Loccke & Correia, attorneys for appellant Robert Varcadipane (Merick H. Limsky, of counsel and on the brief; Marcia J. Tapia, on the brief).

William J. Pascrell, III, Passaic County Counsel, attorney for respondent Passaic County Correction Officer (Michael H. Glovin, Assistant County Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent Merit System Board (Todd A. Wigder, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Robert J. Varcadipane, appeals an order entered by Rolando Torres, Jr., Commissioner of the Department of Personnel ("DOP"), denying an appeal by appellant from a decision of the Human Resource Information Services ("HRIS"), canceling appellant's certification and approving the rescission of the informant's re-employment application. Upon review of the facts and the applicable law, we affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. In March 2003, appellant was employed by the Passaic County Sheriff's Department as a corrections officer. On March 31, 2003, appellant and a fellow officer were accused of assaulting an inmate. On April 2, 2003, disciplinary charges were lodged against appellant. On April 3, 2003, he was suspended pending a hearing. On May 19, 2003, a hearing was held and appellant was suspended without pay.

In April 2004, appellant was charged with third-degree aggravated assault. He resigned by letter dated April 5, 2004. In his letter of resignation, he stated, "[i]t is understood that my resignation is being accepted with the acknowledgement that I am presently a member in good standing of the Department." Appellant alleges that on April 6, 2004, he, along with the Passaic County Prosecutor and Sheriff in the presence of a union representative, agreed to resolve the matter by appellant being admitted into the pre-trial intervention program without having to make any admission of wrongdoing. Appellant further alleges that he received expressed assurances that he would eventually be allowed to return to serve as a sheriff's officer if he successfully completed the pre-trial intervention program. On April 7, 2004, a consent order was entered into with the Passaic County Prosecutor, admitting and enrolling appellant in the pre-trial intervention program for a period of six months. The order required that appellant abide by the terms and conditions incorporated in his plea agreement and any and all additional terms and conditions deemed appropriate by the pre-trial intervention director.

The criminal matter was dismissed at the conclusion of the six month period by the Superior Court on November 10, 2004. On December 12, 2004, the Passaic County Sheriff wrote a letter to the County Prosecutor inquiring as to the Prosecutor's position on reinstating appellant. On December 16, 2004, the Prosecutor advised the Passaic County Sheriff that he did not recommend appellant being considered for a position in Passaic County law enforcement.

On January 21, 2005, appellant was advised that his name had been certified to the Sheriff by DOP as being eligible for employment as a county corrections officer in Passaic County. In June 2005, appellant began to take steps by way of transfer to become employed by the Bergen County Sheriff's office. On June 17, 2005, the Passaic County Sheriff wrote to HRIS advising that the Sheriff's Department had submitted appellant's recommendation in error. He advised that he did not sign the application, but instead, a facsimile stamp had been used without his approval. He also requested the application be rescinded due to the fact that appellant voluntarily resigned for disciplinary reasons.

On July 12, 2005, HRIS advised the Passaic County Sheriff that the request to cancel appellant's certification had been approved and the re-employment application had been rescinded. On July 14, 2005, appellant was also advised by the Bergen County Sheriff that he had decided not to grant a transfer to Bergen County.

On August 17, 2005, appellant filed his appeal with DOP, and on December 23, 2005, DOP issued its Final Administrative Decision through the Merit System Board (the "Board"). The Board determined that, according to the applicable regulation, N.J.A.C. 4A:4-7.10(b), DOP places the name of an employee who resigned in good standing on a regular re-employment list based only on the recommendation of the appointing authority that such re-employment is in the best interest of the service. The Board stated that because the appointing authority maintained that the application was submitted in error, and the appointing authority sufficiently supported its request to remove appellant from the regular re-employment list, the removal was appropriate. The Board determined that it was within the appointing authority's discretion as to whether to place appellant's name on the list and that that discretion is not reviewable. Accordingly, appellant's appeal was denied. This appeal ensued. A civil suit against the Sheriff was filed in Passaic County Superior Court, Law Division on April 5, 2006 alleging breach of contract and breach of an implied covenant of good faith and fair dealing.

On appeal, appellant raises the following arguments for our consideration:

POINT I

THE MERIT SYSTEM BOARD ERRED AS A MATTER OF LAW IN HOLDING THAT THE APPOINTING AUTHORITY HAD SUFFICIENTLY SUPPORTED ITS REQUEST TO REMOVE THE APPELLANT'S NAME FROM THE REGULAR REEMPLOYMENT LIST.

POINT II

THE APPELLANT DETRIMENTALLY RELIED ON THE RESPONDENT'S PROMISE THAT HE WOULD BE ABLE TO RETURN TO LAW ENFORCEMENT AFTER ENTERING THE PRE-TRIAL INTERVENTION PROGRAM.

It is well-established that the judicial capacity to review administrative agency decisions is limited. Pub. Serv. Elec. v. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985) (citing Gloucester County Welfare Bd. v. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). In reviewing a Merit Systems Board's decision, a court should not disturb the agency's ruling unless it finds that the Board's action was "arbitrary and capricious." In re Warren, 117 N.J. 295, 296 (1989). Under the arbitrary and capricious standard, the scope of judicial review is restricted to four inquiries:

(1) whether the agency's decision offends the State or Federal Constitution;

(2) whether the agency's action violates express or implied legislative policies;

(3) whether the record contains substantial evidence to support the findings on which the agency based its action; and

(4) 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.

[George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]

Appellant argues that the Merit System Board wrongfully cancelled the notification of certification in violation of N.J.A.C. 4A:4-4.7. The appropriate provision of the regulations at issue here, however, is N.J.A.C. 4A:4-7.10(b). While N.J.A.C. 4A:4-4.7 sets forth possible circumstances for an eligible person's name to be removed from the list, it is not the regulation that is applicable when a permanent employee who has resigned seeks to request re-employment. Under N.J.A.C. 4A:4-7.10(b), a permanent employee who has resigned may request re-employment from his appointing authority and upon the recommendation of the appointing authority that such re-employment is in the best interest of the service, DOP "shall place the employee's name on a re-employment list." In this case, that is the regulation at issue.

The appointing authority was the Passaic County Sheriff's Department and it represented to DOP that the recommendation was not authorized, in that a facsimile signature had been used, and secondly, that it was not in the best interest of the service to re-employ appellant given the circumstances surrounding the resignation in the first instance. The Board concluded that the appointing authority, the Passaic County Sheriff's Department, has the discretion under the regulation to make the best interest finding, and is permitted to seek rescission of its certification when the application was submitted without the appointing authority's proper authorization. The Board accepted the representations of the appointing authority that the request was not authorized and was not in the authority's best interest. Appellant argues that there was not sufficient support for this request in the record, and hence, the decision should be overturned as arbitrary and capricious.

A review of the standards set forth above indicates that the sole issue is whether the record contains substantial evidence to support the agency's findings. The record clearly indicates the Sheriff stated that he did not authorize the application and that he made a determination that it was not in the best interest of the Sheriff's Department to pursue the certification. There is nothing in the record that disputes the Sheriff's representation that the submission was not authorized by him, nor is there anything in the record that would question the fact that the Sheriff concluded that it was not in the best interest of the department to re-employ appellant. Under the applicable regulation, N.J.A.C. 4A:4-7.10(b), those are the issues which the Merit System Board must review to determine if HRIS acted properly. The regulation is clear that the appointing authority, in this case, the Passaic County Sheriff's Department, has to request an applicant be added to the eligible list and must find that it would be in the service's best interest to do so. If the Merit System Board finds that the recommendation was either not authorized or one that the appointing authority has concluded was not in the best interest of the service, it must remove the certification. DOP's sole role is the administration of personnel issues as governed by the regulations, and the regulations circumscribe DOP's authority on certifying applicants for re-employment to those situations where an appointing authority authorizes an applicant to be added to the eligibility list upon its recommendation that it would be in the best interest of service. The appointing authority, the Sheriff's Department, is to authorize the application and determine whether to make the recommendation. It is not for DOP to determine what other rights, contractual or otherwise, an appellant may or may not have against an appointing authority. Appellant's claims against the Sheriff which relate to issues beyond the parameters of the applicable regulation, N.J.A.C. 4A:4-7.10(b) are not within the purview of DOP.

 
Consequently, the DOP order is affirmed.

The other officer filed a separate appeal from DOP's December 23, 2005 decision. That appeal is pending under Docket No. A-3148-05T5.

(continued)

(continued)

9

A-2524-05T2

March 12, 2007