IN THE MATTER OF JOHN C. JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1725-09T1

IN THE MATTER OF

JOHN C. JOHNSON,

CAPE MAY COUNTY.

__________________________________________________________

Argued April 5, 2011 Decided July 21, 2011

Before Judges Graves and St. John.

On appeal the Civil Service Commission, New Jersey Department of Personnel, Merit System Board, Docket No. 2009-3944.

 

Barbara L. Bakley-Marino, Cape May County Counsel, argued the cause for appellant Cape May County(Ms. Bakley-Marino,County Counsel, attorney; James B. Arsenault, Jr., Assistant County Counsel, on the brief).

 

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

 

Robert L.Taylor, CapeMay CountyProsecutor, attorney foramicus curiaeCape May CountyProsecutor (J. Vincent Molitor, of counsel and on the brief).

PER CURIAM

The County of Cape May appeals from a final administrative decision of the Civil Service Commission (the Commission) reclassifying the job title of John C. Johnson from "Prosecutor's Agent" to "Property Clerk." For the reasons that follow, we affirm.

Johnson was first hired by the County in May 1982 as a "Communication Terminal Operator, Dispatcher." On September 24, 1984, he was promoted to Prosecutor's Agent, an unclassified position within the county government.1 At that time, Cape May County was permitted to employ two unclassified "[a]gents, investigators or special officers" pursuant to the terms of N.J.S.A. 11:4-4(s).

In 1986, the Legislature enacted the Civil Service Act (the Act), L. 1986, c. 112, which replaced Title 11 with Title 11A. N.J.S.A. 11:4-4 was effectively superseded by N.J.S.A. 11A:3-4, entitled "State unclassified service." Unlike its predecessor, N.J.S.A. 11A:3-4 did not provide for Prosecutor's Agents as unclassified State employees. In 1989, however, the Merit System Board2 (the Board) announced that "[d]ue to the sensitive nature of the Prosecutor's Office and the longstanding use of Prosecutor's Agents, the position of Prosecutor's Agent should remain in the unclassified service pursuant to N.J.S.A. 11A:3-4(l)."3 In re County Prosecutor's Agents (Merit Sys. Bd. May 26, 1989) (slip op. at 1). The Board retained the numerical limitations on Prosecutor's Agents from N.J.S.A. 11:4-4(s).

The Board again addressed the status of Prosecutor's Agents on July 16, 2004, when it permitted Gloucester County to hire agents in excess of the number permitted by N.J.S.A. 11:4-4(s). In re Prosecutor's Agents, Gloucester County Prosecutor's Office (Merit Sys. Bd. Jul. 16, 2004) (slip op. at 7). It also advised the Department of Personnel "to undertake a review of the current regulations with a view toward proposing and adopting a rule that will prescribe numerical limits on the hiring of Prosecutor's Agents consistent with population changes and increased demands on law enforcement agencies." Id. at 8.

In accordance with this decision, the Department of Personnel issued a memorandum to all county prosecutors on October 19, 2006, concerning "what duties are appropriate to the unclassified title of Prosecutor's Agent." Enclosed was a title specification for the position developed by the Department. The memorandum stated: "This specification is currently in effect and will not affect current employees; however, it shall apply to any appointments made on or after today's date."

The Department of Personnel later conducted an audit of nine positions in the Cape May County Prosecutor's Office, and at its request, Johnson completed a position classification questionnaire on August 22, 2008. He reported that he spent 70% of his work time as "primary property and evidence custodian," with duties centered around the possession, organization, and maintenance of evidence; 10% as "systems manager for the prosecutors management information system, Promis/Gavel"; 10% as "information security representative"; and 10% performing "other duties," including accessing various criminal justice databases and training new investigators and detectives. Johnson's supervisor, the Lieutenant of County Investigators, wrote: "The most important duty of [Johnson's] position is that of evidence custodian. It includes the receiving, sorting and safe guarding [of] all evidence in criminal cases."

In a letter dated April 17, 2009, the Division of Local Human Resource Management (LHRM) informed Johnson that it had determined he was "appropriately classified in the classified title of Property Clerk" rather than as a Prosecutor's Agent. The letter further stated that the decision was effective from October 25, 2008. A separate letter notifying Cape May County of the change was sent on April 21, 2009.

As of April 30, 2009, the Department of Personnel's job specification for Prosecutor's Agent defined the position as follows: "Under the direction of the County Prosecutor, performs non-law enforcement duties to assist the Prosecutor in one or more of the following areas: trial preparation; administration; media/community relations; research and data analysis; does other related duties as required." The specification also listed several examples of work performed by Prosecutor's Agents:

Assists in the preparation of cases for legal action.

 

Gathers information and other data as requested by the Prosecutor.

 

May testify in Grand Jury and trial proceedings.

 

Researches and verifies information as requested by the Prosecutor.

 

Collects and organizes parole notification packets containing release information on sex offenders required to register under Megan's Law.

 

May participate in the issuance and execution of legal documents.

 

Obtains reports and other information as requested by the Prosecutor.

 

Processes paperwork involving court orders.

 

May respond to requests for information from the media and general public.

 

May provide guidance to or train new agents.

 

Prepares and reviews official correspondence.

 

Maintains essential records and files.

 

The job specification for Property Clerk defined that position as follows: "Under direction, is responsible for the collection, recording, and safe storage of property and other valuables consigned or confiscated by the police department or other law enforcement agency; does other related duties as required." Examples of work included:

Receives, stores, and records various articles or valuable seized as evidence which have been confiscated by law enforcement authorities or recovered, lost, or stolen property.

 

Tags and records all evidence and property.

 

Prepares records of articles and valuables received including description of article, name of owner (if known), name of law enforcement officer from whom received, and reason for retention.

 

If the identification of the owner of lost or stolen property is known, sends a notice to the owner asking that property be identified and claimed.

 

Issues property or evidence being retained to proper individual on receipt of appropriate authorization.

 

Notifies persons from whom property has been confiscated as evidence that they may recover their possessions when they are no longer needed.

 

Prepares list of articles or evidence required by law to be destroyed and sends same for destruction on proper authorization.

 

Receives property and valuables of deceased individuals which have not been claimed by heirs.

 

Releases property only on receipt of official discharge documents.

 

Testifies in court regarding receipt of evidence.

 

May place advertisements in local papers asking that lost property be claimed.

 

May lift heavy objects.

 

May drive a motor vehicle to various locations to pick up evidence and bring it back to the property room.

 

Cape May County appealed the determination in a letter dated May 12, 2009. It argued that Johnson "should be exempt from classification review" because he "was the first agent hired by the Cape May County Prosecutor[']s [O]ffice" and was thus one of the two permitted Prosecutor's Agents under N.J.S.A. 11:4-4(s). In addition, the County asserted that Johnson held a position "of trust" and possessed knowledge and responsibilities beyond those enumerated in the job specification for Property Clerks.

On November 19, 2009, the Commission entered a final administrative decision denying the County's appeal. Noting that "the classification review at issue was initiated based on discussions and an agreement between LHRM and the Cape May County Prosecutor," the Commission found that "the primary functions of Johnson's position [were] clearly compatible with the title of Property Clerk." Therefore, it concluded: "A review of the relevant job specifications verifies that Johnson's position [was] appropriately classified as a Property Clerk."

Cape May County filed a notice of appeal on December 16, 2009, and presents the following arguments:

POINT I

 

THE CIVIL SERVICE COMMISSION'S CLASSIFICATION OF PROSECUTOR'S AGENT JOHNSON WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE, AND MUST BE OVERTURNED.

 

A. AS ONE OF THE FIRST TWO PROSECUTOR'S AGENTS APPOINTED BY THE COUNTY OF CAPE MAY, AGENT JOHNSON SHOULD BE EXEMPT FROM CLASSIFICATION REVIEW BY PAST PRACTICE OF THE DEPARTMENT OF PERSONNEL.

 

B. EVEN IF AGENT JOHNSON IS NOT ENTITLED TO EXEMPTION IN ACCORDANCE WITH PAST DOP PRACTICES AND PRIOR MSB DECISIONS, THE CSC ERRED IN SUSTAINING A FINDING BY THE LHRM THAT HIS DUTIES FIT WITHIN THE CLASSIFIED JOB TITLE OF PROPERTY CLERK.

 

POINT II

 

THE CIVIL SERVICE COMMISSION SHOULD BE BARRED - BY THE DOCTRINE OF EQUITABLE ESTOPPEL OR BY THE DOCTRINE OF LACHES - FROM CHANGING THE CLASSIFICATION OF AGENT JOHNSON'S POSITION AFTER TWENTY-SIX YEARS.

 

The scope of our review is limited. See, e.g., In re Stallworth, supra, slip op. at 13. We generally "'accord deference to final agency actions.'" McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 612 (App. Div. 2010) (quoting N.J. Soc'y for the Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008)). Therefore, we will not ordinarily "disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008).

The Commission is responsible for the assignment and reassignment of "titles among the career service, senior executive service and unclassified service." N.J.S.A. 11A:3-1. In this role, it must:

a. Establish, administer, amend and continuously review a State classification plan governing all positions in State service and similar plans for political subdivisions;

 

b. Establish, consolidate and abolish titles;

 

c. Ensure the grouping in a single title of positions with similar qualifications, authority and responsibility;

 

d. Assign and reassign titles to appropriate positions; and

 

e. Provide a specification for each title.

 

[Ibid.]

 

Additionally, the Commission is charged with ensuring that "[n]o person shall be appointed or employed under a title not appropriate to the duties to be performed nor assigned to perform duties other than those properly pertaining to the assigned title which the employee holds." N.J.A.C. 4A:3-3.4. If an employee's function changes "to the extent that [it is] no longer similar to the duties and responsibilities set forth in the specification and the [employee's] title is no longer appropriate," the Commission must reclassify the employee to a different title. N.J.A.C. 4A:3-3.5(a).

In this case, Johnson stated that he spent approximately 70% of his time as Cape May County's "primary property and evidence custodian." Thus, his own assessment of his duties reveals that his position aligns more closely with the specification for Property Clerks than the one for Prosecutor's Agents. Moreover, we fail to see what impact the time of his appointment has on his classification. The Commission is vested with discretion to assess and reclassify titles as needed, and we conclude that it exercised that discretion in a reasonable manner.

Nor are we persuaded that Johnson's reclassification was barred by the doctrines of equitable estoppel or laches. Equitable estoppel requires the proponent to show that a representation was made, either "intentionally or under such circumstances that it was both natural and probable that it would induce action," and that the proponent actually relied to his detriment on that representation. Miller v. Miller, 97 N.J. 154, 163 (1984). The doctrine is "'designed to prevent a party's disavowal of previous conduct if such repudiation would not be responsive to the demands of justice and good conscience.'" Heuer v. Heuer, 152 N.J. 226, 237 (1988) (quoting Carlsen v. Maters, Mates & Pilots Pension Plan Trust, 80 N.J. 334, 339 (1979)).

Equitable estoppel is "'founded in the fundamental duty of fair dealing imposed by law,'" Marsden v. Encompass Ins. Co., 374 N.J. Super. 241, 249 (App. Div.) (quoting Casamasino v. City of Jersey City, 158 N.J. 333, 354 (1999)), certif. denied, 183 N.J. 287 (2005), and "is applied only in very compelling circumstances where the interests of justice, morality and common fairness clearly dictate that course," Palatine I v. Planning Bd. of Montville, 133 N.J. 546, 560 (1993) (citations and internal quotation marks omitted). Moreover, the doctrine "'is rarely invoked against a governmental entity'" but may be applied to prevent a manifest injustice. Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, Bureau of Homeowners Prot., New Home Warranty Program, 186 N.J. 5, 20 (2006) (quoting Casamasino v. City of Jersey City, 158 N.J. 333, 354 (1999)); see also Cipriano v. Dep't of Civil Serv., 151 N.J. Super. 86, 91 (App. Div. 1977) ("Courts are generally reluctant to apply estoppel theories against governmental agencies.").

Application of equitable estoppel is not warranted here. Although the Department of Personnel's October 19, 2006 memorandum stated that the new Prosecutor's Agent specification would not affect current employees, it was not intended to induce reliance, and there has been no showing of any actual, detrimental reliance. Most importantly, that memorandum did not and could not relieve the Commission of its statutory responsibility to assess and reclassify Johnson's title. Therefore, we decline to apply equitable estoppel in this case.

Similarly, we find no cause to apply the doctrine of laches. "[L]aches 'is invoked to deny a party enforcement of a known right when the party engages in an inexcusable and unexplained delay in exercising that right to the prejudice of the other party.'" United States v. Scurry, 193 N.J. 492, 503 (2008) (quoting Knorr v. Smeal, 178 N.J. 169, 180-81 (2003)). "The policy behind laches is to discourage stale claims." Cnty. of Morris v. Fauver, 153 N.J. 80, 105 (1998).

We discern no inexcusable delay from the record before us. The Commission is obliged by law to perform periodic reviews of the classification plans of both state and local governments. N.J.S.A. 11A:3-1(a). The fact that Johnson has served as a Prosecutor's Agent since 1984 has no bearing on whether he was properly classified in that position. Furthermore, the specification for Prosecutor's Agents was only developed in 2006, and the Commission did not "'sit idly on [its] known rights'" when it conducted the subsequent audit of the Cape May County Prosecutor's Office. Milo Fields Trust v. Britz, 378 N.J. Super. 137, 153 (App. Div. 2005) (quoting DiLuglio v. Providence Auto Body, Inc., 755 A.2d 757 (R.I. 2000)). Therefore, the doctrine of laches does not apply.

In view of the foregoing, Cape May County has failed to establish that the Commission's reclassification of Johnson as a Property Clerk was contrary to the law; arbitrary, capricious, or unreasonable; or not supported by substantial evidence. Accordingly, the final administrative action dated November 19, 2009, is affirmed.

Affirmed.

1 Throughout this period, Johnson's title was variously identified as "Agent of the Prosecutor"; "Confidential Agent, Prosecutor's Office"; "Agent to the Prosecutor"; "Confidential Agent Pros."; and "Prosecutor's Agent." For the sake of clarity, we refer to the position as Prosecutor's Agent.

2 The Act established the Merit System Board to, among other things, "[i]nterpret the application of [Title 11A] to any public body or entity." N.J.S.A. 11A:2-6(e). The Board was replaced by the Commission on June 30, 2008. See L. 2008, c. 29; see also In re Stallworth, ___ N.J. ___ (2011) (slip op. at 1 n.1).

3 N.J.S.A. 11A:3-4(l) grants the Commission discretion to establish or retain titles for unclassified service.