IN THE MATTER OF THE DEPARTMENT OF COMMUNITY AFFAIRS LAYOFF

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3687-10T1

IN THE MATTER OF THE DEPARTMENT

OF COMMUNITY AFFAIRS LAYOFF.

__________________________________

June 18, 2012

Submitted May 31, 2012 - Decided

Before Judges J. N. Harris and Koblitz.

On appeal from the Civil Service Commission, CSC Docket No. 2011-3591.

Oxfeld Cohen, P.C., attorneys for appellant IFPTE Local 195 (Arnold Shep Cohen, of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent Civil Service Commission (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Todd A. Wigder, Deputy Attorney General, on the brief).

PER CURIAM

The International Federation of Professional and Technical Engineers, Local 195 (Local 195) appeals the March 16, 2011 Final Administrative Action of the Civil Service Commission (the Commission), which approved a layoff plan submitted by the Department of Community Affairs (DCA). The Commission decided, over the objection of Local 195, that the "layoff of DCA employees must be administered by way of seniority in the licensed discipline" rather than strictly by seniority in the job title without regard to licensure. We affirm.

I.

The facts before us are neither complicated nor in dispute. On March 1, 2011, the DCA submitted a layoff plan to the Commission. The DCA's submission justified the layoffs by noting a significant decline in revenue collection. The DCA focused mainly on the financial deficits suffered by various units and programs under the purview of its Division of Codes and Standards, which performs the agency's inspection and permitting functions. Consequently, the layoff plan targeted thirty permanent positions, including twenty-three positions in four Code and Standards titles: three Construction Officials, four Sub-Code Officials, seven Construction Code Inspectors 2, and nine Construction Code Inspectors 1. This appeal concerns only the sixteen employees in the two Construction Code Inspector titles.

Construction Code Inspector 1 appointees require "a valid Residential and Commercial Specialist [] code enforcement license in either building, fire protection, electrical, or plumbing, or boiler/pressure vessel issued by the [DCA], appropriate to the position." Construction Code Inspector 2 appointees, however, require "a valid Industrial and Commercial Specialist [] Code enforcement license in either building, fire protection, electrical, plumbing, or boiler/pressure vessel and refrigeration or elevator, amusement ride issued by the [DCA}, appropriate to the position." Notwithstanding the job descriptions, these code inspectors serve in the same title regardless of the employees' licenses or specific functions.

Historically, the license required for a particular position determined which individuals would be eligible to fill that role, regardless of job title. When a discrete assignment arose, the DCA considered only those persons who possessed the appropriate license necessary to fill the particular position. This selection process recognized that employees are required by law to possess specific licenses to perform the duties of their position. N.J.A.C. 5:23-5.3 to -5.19G. The Commission refers to this process as "selective certification."

In 2004, the DCA acted consistently with this procedure when it appointed candidates to fill vacant Construction Code Inspector 2 positions inspecting amusement rides. The appointments were made from a list of eligible candidates, with the DCA bypassing certain individuals on the eligibility list, regardless of their ranking, because they were licensed, in the words of DCA, in the "wrong discipline." The DCA considered only individuals with an amusement ride license to fill the Construction Code Inspector 2 positions available at the time.1

The DCA's 2011 layoff proposal requested that the Commission prioritize the specialized credentials the appropriate license of employees holding the code inspector titles before utilizing seniority. The DCA estimated that by conducting the layoff in this manner, "only two employees holding amusement ride licenses [would] be impacted, as opposed to nine employees if the layoff [were] administered by seniority." The DCA further represented to the Commission that losing nine of its thirteen licensed amusement ride inspectors would severely impede its ability to carry out the necessary inspections of establishments such as Great Adventure and Morley's Pier. Consequently, those businesses would "not be permitted to open." The DCA accordingly requested that the Commission recognize the specialized licensing mandate embodied in the State Uniform Construction Code (UCC) regulations, N.J.A.C. 5:23-5.1 to -5.25, and implemented through the historic selective certification process, in conducting the layoff. In its Final Administrative Action, the Commission granted the request. This appeal followed.

II.

A.

"Appellate courts have 'a limited role' in the review of administrative agency determinations." In re Carluccio, ___ N.J. Super. ___, ___ (App. Div. May 25, 2011) (slip op. at 11) (quoting In re Stallworth, 208 N.J. 182, 194 (2011)); see also Burlington Cnty. Bd. ofSoc. Servs. v. G.W., 425 N.J. Super. 42, 45 (App. Div. 2012) ("When reviewing a final decision of an administrative agency, our scope of review is limited."). "'An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.'" In reHearn, 417 N.J. Super. 289, 298 (App. Div. 2010) (quoting In re Herrmann, 192 N.J. 19 27-28 (2007)).

Our appellate analysis is restricted to determining:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) 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.

[In re Stallworth, supra, 208 N.J. at 194 (citing In re Carter, 191 N.J. 474, 482-83 (2007) (quoting Mazza v.Bd. of Trs., 143 N.J. 22, 25 (1995))).]

"When an agency's decision meets those criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field. Deference controls even if the court would have reached a different result in the first instance." In re Herrmann, supra, 192 N.J. at 28 (citations omitted).

Notwithstanding the foregoing, we are not bound by an agency's "determination of strictly legal issue[s]." In re Carter, supra, 191 N.J. at 483 (quoting MayflowerSec. Co. v. Bureauof Sec., 64 N.J. 85, 93 (1973)). On such issues, our standard of review is plenary. However, a plenary standard of review "does not apply with equal force to an agency's interpretation of regulations that fall within a legislative scheme the agency is charged with implementing and enforcing." In re Hearn, supra, 417 N.J. Super. at 298. In such a case, we are required to defer to such interpretation, see Nordstromv. Lyon, 424 N.J. Super. 80, 97 (App. Div. 2012), "unless the agency's interpretation is plainly unreasonable." In re ElectionLaw Enforcement Comm'nAdvisory Op. No. 01-2008, 201 N.J. 254, 260 (2010).

B.

Local 195 argues that the Commission acted arbitrarily by creating "a new exception to the seniority rules" when it decided to distinguish among Construction Code Inspectors based on their licensed discipline in administering the layoff. According to Local 195's view, the only appropriate course is to administer the layoff by title, which, pursuant to N.J.S.A. 11A:8-1(b), leaves seniority as the only criterion to consider.

The DCA is responsible for the adoption, administration and enforcement of the UCC. N.J.S.A. 52:27D-123. Pursuant to this authority, the DCA adopted regulations concerning the licensing of all code enforcement officials. N.J.A.C. 5:23-5.1 to -5.25. DCA regulations expressly facilitate the licensure of building inspectors, electrical inspectors, fire protection inspectors, plumbing inspectors, elevator inspectors, mechanical inspectors, amusement ride inspectors, and boiler/pressure vessel and refrigeration inspectors. N.J.A.C. 5:23-5.8 to -5.19F.

In its Final Administrative Action, the Commission explained that the DCA's layoff plan was governed by statutory and regulatory provisions requiring that (1) employees be laid off in inverse order of seniority, N.J.S.A. 11A:8-1(b); and (2) the Commission has the authority to determine seniority and designate lateral and demotional rights for all career service titles prior to the effective date of the layoff, N.J.A.C. 4A:8-1.1(b).

After exploring the process of selective certification and its use to fill code inspector vacancies, the Commission determined that the DCA's requested layoff approach was appropriate for the following reasons: (1) the job descriptions for the code inspector titles explicitly indicated that appointees must possess a license "appropriate to the position"; (2) the DCA's needs at any given time to determine which specific licenses are required for available code inspector positions; (3) code inspectors' "discrete assignments" are based on these licensure requirements and, thus, "the subject positions are utilized as if the employees are in separate titles;" and (4) "the adverse consequences of failing to provide layoff rights based upon the licensed disciple," namely, a deficit of licensed amusement ride inspectors, necessitated such an approach. (emphasis in original). The Commission therefore found that for purposes of the layoff plan, the code inspectors in the varying licensed disciplines "may be considered as serving in separate titles" and, thus, the layoff would be administered by way of seniority in the licensed discipline.

The Commission is authorized to determine lateral and demotional rights under N.J.S.A. 11A:8-1(e). Pursuant to this statute, when evaluating title comparability, the Commission must consider whether the

(1) titles have substantially similar duties and responsibilities; (2) education and experience requirements for the titles are identical or similar; (3) employees in an affected title, with minimal training and orientation, could perform the duties of the designated title by virtue of having qualified for the affected title; and (4) special skills, licenses, certifications or registration requirements for the designated title are similar and do not exceed those which are mandatory for the affected title. Demotional title rights shall be determined by the commission based upon the same criteria, except that the demotional title shall have lower but substantially similar duties and responsibilities as the affected title.

[N.J.S.A. 11A:8-1(e).]

In light of its decision to recognize virtual sub-titles based upon licensure within the code inspector titles, the Commission determined that the licenses held by employees would determine their lateral and demotional rights. For example, the Commission noted that a Construction Code Inspector 1 "who performs plumbing inspections cannot inspect rides unless he or she has an amusement ride license." Thus, the Commission reasoned that because code inspector positions are filled as if the employees serve in separate titles, "lateral and demotional rights may only be exercised within the licensed discipline" for the proposed layoff. The Commission further observed that seniority remains a primary factor in the layoff because the least senior employee in the targeted discipline will be the first affected. There was nothing arbitrary, capricious, or unreasonable about this highly logical and pragmatic approach.

Local 195 argues that N.J.S.A. 11A:8-1(e) applies only to layoff rights of different titles. It asserts such statutory applicability only when employees are subject to separate variant titles under N.J.A.C. 4A:8-2.1(d). The statute's language, however, does not support this contention. Also, N.J.A.C. 4A:8-2.1(a) explicitly defines a lateral title right as the right of a permanent employee to exercise displacement rights . . . against an employee in the layoff unit holding a title determined to be the same or comparable to the affected title of the employee. We are unpersuaded by Local 195's contentions.

Lastly, Local 195 contends that the Commission's action ignores the import of N.J.A.C. 4A:8-2.1(d), which states:

Employees serving in a specialized credential variant title shall have title rights based upon the special credentialing, providedthat the employees areserving in a specializedcredential variant title onor before submission ofthe layoff plan, see N.J.A.C. 4A:8-1.4. Specialized credentialing shall be based upon at least one of the following, upon approval by the Department of Personnel:

1. Licensure or certification;

2. Specialized education;

3. Specialized client-based or program experience; or

Service as a trainee in a specialized area of operation leading to advancement to a primary title with specialized credentialing.

[(Emphasis added).]

Specifically, Local 195 urges that the Commission ignored this regulation and arbitrarily engrafted specialized credentials into the code inspector titles for purposes of determining the layoff rights of affected employees.

Our review convinces us that the Commission employed sound reasoning to support its conclusion. Taken out of context, N.J.A.C. 4A:8-2.1(d) arguably limits the authority to designate specialized credential variant titles after the submission of a layoff plan. However, when considered under the totality of the circumstances that the Commission is required to consider when invoking a layoff, its action, even under the constricted lens of N.J.A.C. 4A:8-2.1(d), is not "plainly unreasonable." Francoisv. Bd. of Trs., 415 N.J. Super. 335, 347 (App. Div. 2010). Furthermore, the Commission's decision does not violate express or implied legislative policies, but rather advances them. The legislative imperative imparted to the DCA to enforce the UCC's safety measures is fulfilled by the Commission's approach, which maintains a proper complement of appropriately licensed persons to carry out the job of code inspections.

Local 195 argues that all code inspectors should be treated equally for layoff purposes, regardless of their licensed disciplines or the DCA's needs. It proposes to administer the layoff by straight seniority, which, from a policy standpoint, minimizes the vital importance that licensing requirements play in safeguarding the public's health and safety through the administration of the UCC. Such an approach runs contrary to the Legislature's stated goals in enacting the UCC to maximize efficiency while protecting the public health, safety and welfare. N.J.S.A. 52:27D-122.

Affirmed.

1 The 2004 appointments are not the subject of this appeal. Local 195 takes the position that even if "DCA may have acted inappropriately in the past in its hiring practices [it] does not make the instant layoffs appropriate."