IN THE MATTER OF ANDREW HUTCHINSON, ESSEX COUNTY CORRECTION OFFICER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6024-08T3

IN THE MATTER OF ANDREW

HUTCHINSON, ESSEX COUNTY

CORRECTION OFFICER.

_____________________________

April 1, 2011

Submitted: February 16, 2011 - Decided:

Before Judges Fisher, Sapp-Peterson and Fasciale.

On appeal from a Final Agency Decision of the Civil Service Commission, Docket Nos. 2009-3439 and 2008-4694.

Nicholas J. Palma, attorney for appellant.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Pamela N. Ullman, Deputy Attorney General, on the brief).

PER CURIAM

Andrew Hutchinson appeals from an order and final administrative decision of the Civil Service Commission (Commission) that barred him from sitting for the promotional examination for County Correction Sergeant (promotional exam) because he did not possess the required three years of continuous permanent service.1 We affirm.

Hutchinson was permanently appointed as a County Correction Officer on August 26, 2002. He was laid off from his position on March 29, 2004 and subsequently rehired as a provisional employee on July 6, 2004. He was rehired provisionally because he had not completed his three-year working test period when he was laid off and therefore could not be placed on a special reemployment list. Hutchinson was not classified as a permanent employee again until March 18, 2005.

The promotional exam is open to employees who have an aggregate of three years of continuous permanent service. N.J.A.C. 4A:4-2.6(b) provides "applicants for promotion from entry level law enforcement . . . shall have three years of continuous permanent service in a title to which the examination is open . . . ." Hutchinson was not eligible to take the promotional exam because he had not served an aggregate of three continuous years of permanent service as of November 21, 2007, the closing date. Hutchinson appealed to the Merit System Board (the Board), arguing that he was permanently appointed in 2002 and that he was never listed as a provisional employee.

The Board determined that Hutchinson's employment status should have been listed as permanent as of January 25, 2005 and retroactively changed his status. Notwithstanding the correction, Hutchinson still lacked the requisite three years of continuous permanent service. The Commission adopted the Board's initial decision and declared Hutchinson ineligible to sit for the promotional exam.

On appeal, Hutchinson argues that he should have been classified as a permanent employee when he was rehired in July 2004.

The role of this court in reviewing an administrative agency s final determination is exceedingly limited. In re Taylor, 158 N.J. 644, 656 (1999).

The scope of review of an administrative decision is the same as that for an appeal in any non[-]jury case, i.e., whether the findings made could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.

[Ibid. (internal quotations and citations omitted).]

An appellate court is not permitted to "engage in an independent assessment of the evidence as if it were the court of first instance." Ibid. (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). If, in reviewing the agency s decision, this court finds sufficient credible evidence in the record and the inferences to be drawn therefrom, it must uphold the agency s decision even if the court would have reached a different result. Campbell v. N.J. Racing Comm n, 169 N.J. 579, 587 (2001); In re Taylor, supra, 158 N.J. at 657.

Therefore, this court will only disturb a final agency determination if it concludes that the decision was arbitrary and capricious. In re Holy Name Hosp., 301 N.J. Super. 282, 295 (App. Div. 1997) (citing Worthington v. Fauver, 88 N.J. 183, 204 (1982)). The arbitrary and capricious standard is essentially a rational-basis analysis. Worthington, supra, 88 N.J. at 204. "'Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of circumstances.'" Ibid. (quoting Bayshore Sewerage Co. v. Dep't Envtl. Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973), aff'd, 131 N.J. Super. 37 (App. Div. 1974)). A "determination predicated on unsupported findings is the essence of arbitrary and capricious action." In re Boardwalk Regency Corp., 180 N.J. Super. 324, 334 (App. Div. 1981), modified by 90 N.J. 361, appeal dismissed sub nom. Perlman v. Att'y Gen. of N.J., 459 U.S. 1081, 103 S. Ct. 562, 74 L. Ed. 2d 927 (1982). There is a strong presumption of an agency's reasonableness. In re Holy Name Hosp., supra, 301 N.J. Super. at 295. The burden of showing that an agency determination was arbitrary and capricious is on the party challenging it. Ibid.

We affirm substantially for the reasons expressed by the Commission in its thoughtful and detailed written opinion dated June 24, 2009. We add the following brief comments.

The Commission found correctly, by substantial, credible evidence, that Hutchinson was ineligible to sit for the promotional examination. Hutchinson had less than three years of continuous permanent service by November 21, 2007. N.J.A.C. 4A:4-2.6(b). Thus, Hutchinson could not be classified as a permanent employee when he was rehired because he had not completed his working test period. See N.J.A.C. 4A:1-1.3. Hutchinson did, however, receive the earliest date that he could have been classified as a permanent employee. Therefore, the Commission did not act arbitrarily or capriciously, but rather found by substantial, credible evidence that Hutchinson failed to satisfy N.J.A.C. 4A:4-2.6(b) and correctly classified him as a provisional employee when he was rehired.

After a thorough review of the record and consideration of the controlling legal principles, we conclude that Hutchinson's remaining arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).

1 This appeal is calendared back-to-back along with the appeals of Steven Torres, Docket NO. A-6023-08T3, and Janice Guy, Docket No. A-6025-08T3.