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DOCKET NO. A-5827-06T25827-06T2












Submitted December 15, 2008 Decided

Before Judges Lisa, Reisner, and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4624-04.

Cotz & Cotz, attorneys for appellant (George J. Cotz, on the brief).

Adorno & Yoss, L.L.P., attorneys for respondents (Mary Pat Gallagher, of counsel and on the brief).


Plaintiff Dina Melani sought damages and counsel fees pursuant to N.J.S.A. 11A:10-4 and 11A:10-5 for alleged violations of the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6, by defendants Passaic County Board of Freeholders (Passaic County), the Sheriff of Passaic County, Passaic County Administrator Anthony DeNova and Shirley Force. Plaintiff now appeals the trial judge's decision rendered after a bench trial on May 29, 2007, granting her only partial relief. Although the court concurred that plaintiff had named 118 provisional employees who remained in their positions for longer than twelve months in violation of the Civil Service Act, N.J.S.A. 11A:4-13(b), the court also determined that she was not entitled to statutory damages or counsel fees. We affirm.

To briefly recap the procedural history, in 1998 or 1999, plaintiff brought a wrongful discharge action against Passaic County for termination from her position as Director of Information and Referral within its Department of Aging. We transferred the matter to the New Jersey Department of Personnel (DOP), which is entrusted with the implementation of the Civil Service Act. N.J.A.C. 4A:1-1.2(a). We concluded, among other things, that the case should be transferred to the DOP as a matter of primary jurisdiction. Melani v. County of Passaic, 345 N.J. Super. 579, 589-90 (App. Div. 2001). On January 15, 2004, we affirmed the DOP final decision that Melani lacked the qualifications for provisional appointment to both her first and subsequent position, and that she therefore was not eligible to seek permanent employment status. Melani v. County of Passaic, No. A-5647-01 (App. Div. January 15, 2004) (slip op. at 2). In closing, we said:

We do not foreclose further action on Melani's part pursuant to N.J.S.A. 11A:10-4 (action for enforcement), N.J.S.A. [11A:10-5] (resident actions) or any other applicable statute.

[Id. at 12.]

Melani interpreted this language, as stated in her brief, as meaning that we had taken "the unusual step of advising [her] to seek relief" under the applicable statutes. This second complaint followed on October 28, 2004.

The Civil Service Act defines "provisional appointment" as "employment in the competitive division of the career service pending appointment of a person from an eligible list." N.J.A.C. 4A:1-1.3. As a civil service political subdivision whose hiring actions are subject to DOP review, the county is required to advise the DOP of all provisional appointments. N.J.A.C. 4A:4-1.10(a). The filing of the informational "new-hire" forms with DOP triggers the creation of new job titles and arrangements for competitive exams. N.J.S.A. 11A:4-13. Once examinations are administered, a list is thereby created, including statutory priorities that ensure that the most qualified candidates are appointed. N.J.S.A. 11A:4-8. The obvious purpose of the Civil Service Act is to prevent political patronage in filling taxpayer-funded positions in state or local government. O'Malley v. Dep't of Energy, 109 N.J. 309, 313 (1987).

In pertinent part, Melani's 2004 complaint alleged that some 180 provisional employees were employed by Passaic County in violation of the Civil Service Act. Accordingly, she sought damages of up to twenty-five percent of the salaries wrongfully paid plus counsel fees and costs. N.J.S.A. 11A:10-5.

Prior to the commencement of the trial, the issues were narrowed as a result of in limine motions. The phrase used in the complaint, "remuneration paid in violation of this title," was defined as payments made in violation of a previously issued DOP salary disapproval order. When the trial went forward, plaintiff's case consisted of documents relating to the hiring, retention and DOP action concerning 180 alleged provisional employees. Ultimately, the trial judge found that although plaintiff proved that 118 provisional employees had worked beyond the twelve-month limit, she was nonetheless not entitled to damages or counsel fees because such relief should only be granted where a DOP final administrative order had issued disapproving salaries paid to specific provisional employees. The judge further determined that plaintiff did not prove any willful violation where such salary disapproval orders were issued because the status of the employee was subsequently changed to come into compliance with the order.

Because the termination of the remaining 118 provisional employees would significantly impact county government, the judge instead ordered the county to come into compliance over the next six months. In coordination with the DOP, the county was ordered to "appoint all provisional employees to permanent status, correct any improper job classifications or appoint other eligible employees" to fill the positions. He further required that any of the 118 employees still remaining on the county's payroll as provisional at the end of the six-month period be terminated immediately.

Plaintiff first contends that Judge Sokalski erred in finding that the retention of the 118 provisional employees was not a willful violation of the Civil Service Act. In support of the claim, plaintiff offers the specific circumstances of several provisional employees and characterizes Passaic County's alleged willful conduct as displaying a "cavalier attitude" towards the Civil Service Act.

"Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We accord great deference to credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). We should not disturb the trial court's fact-finding unless it is so lacking in support as to constitute a denial of justice. Rova Farms, supra, 65 N.J. at 483-84.

We find Judge Sokalski's conclusions to be amply supported by the record. For example, as a principal defense witness, Anthony Larice, a DOP employee of thirty-seven years and a DOP regional manager, said:

We feel that the County was making good progress, appeared to be interested in properly getting these records up to date. That's not to say there weren't violations that were still out there regarding certifications . . . but on the whole, the County appeared to be making a solid effort to try to bring all of their records in compliance and up to date.

If the DOP itself viewed the county's efforts as sufficient and made in good faith, there is ample support for Judge Sokalski's conclusions. Furthermore, the court heard testimony that the DOP's interpretation of its own regulations did not require automatic termination of provisional employees after twelve months. This is, in part, due to delays caused by DOP's obligation to certify a complete list of eligible candidates. In light of our independent review of the record, we conclude that the judge's findings were based on adequate, substantial and credible evidence. Plaintiff simply failed to prove that the violations were willful.

Plaintiff's second contention is that the judge erred in failing to award damages and attorney fees as she "met her burden of proof." The judge found that plaintiff's reading of N.J.S.A. 11A:10-5 was too broad. He interpreted the language by reading it in conjunction with N.J.S.A. 11A:10-1, which states that prior to reimbursement being required of an individual authorizing payment of a salary beyond twelve months, a salary disapproval order is required. In other words, the judge concluded that the authorizing individual must be acting with actual notice that payment of the employee would result in noncompliance with a salary disapproval order, resulting in personal liability for the person making payments. N.J.A.C. 4A:10-3.1 and 3.2. Plaintiff does not dispute this reading of the statute. Because no violations of a salary disapproval order were established as to the remaining 118 provisional employees, no damages or counsel fees were awarded. Unless plaintiff proved the payment of an employee in knowing violation of a disapproval order, she was entitled to neither damages nor attorney fees. Merely retaining the employee was not "in violation" of the Act if there were attenuating circumstances. We agree.

This individual plaintiff should not be in a better position to recover moneys than the DOP, which is entitled to similar statutory relief. As the judge said, "[I]t would be illogical to vest greater authority in a resident who brings suit than that possessed by the board or commissioner whose function is to implement and enforce the [A]ct." As found by the judge, to construe the Act otherwise, even in the absence of clearly limiting language in N.J.S.A. 11A:10-5, would "paralyze the government's ability to carry out the [A]ct." There would be a natural reluctance to take on responsible positions in government on the part of qualified persons knowing the personal financial consequences that they might face when dealing with provisional-status employees working beyond twelve months. We agree with this reasonable interpretation of the Act, which seems eminently in accord with its public purpose.


Force's motion for judgment at trial pursuant to Rule 4:40-1 was granted at the close of plaintiff's case by written decision issued April 5, 2007. No appeal is taken from the dismissal. Force replaced Melani when Melani was terminated from her position with the Passaic County Area Department of Aging.





March 17, 2009