IN THE MATTER OF PETER CORBO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF PETER CORBO,

SHERIFF'S OFFICER CAPTAIN

(PC0989N) AND SHERIFF'S

OFFICER LIEUTENANT (PC0993N),

ESSEX COUNTY.

________________________________

October 20, 2014

Submitted September 17, 2014 Decided

Before Judges Fuentes and Ashrafi.

On appeal from the New Jersey Civil Service Commission, Docket No. 2013-794.

Edward Esposito, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Pamela N. Ullman, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Edward Esposito, a sergeant with the Essex County Sheriff's Office, appeals from the final decision of the Civil Service Commission ("the Commission") denying his application for a waiver from the qualifying "time-in-rank" requirement to take a test for eligibility to be promoted to lieutenant.1 We affirm.

Appellant was promoted to Sheriff's Officer Sergeant on November 24, 2010. In early November 2011, the Commission announced it would accept applications until November 21, 2011, for promotional examinations for the ranks of lieutenant and captain. Pursuant to the requirements listed in N.J.A.C. 4A:4-2.6(a)(1), the examination for lieutenant was open only to sergeants with one full year of permanent service in that rank as of the closing date for applications. Although shy of the one-year requirement by a few days,2 appellant submitted an application.

On February 8, 2012, the Commission notified appellant that he was not eligible to sit for the examination because he lacked the required time of service as a sergeant. Appellant promptly sought administrative review of the Commission's ineligibility determination and a waiver pursuant to N.J.A.C. 4A:4-2.6(g) from the one-year service requirement. He claimed it was "very likely" that the Essex County Sheriff's Office would have more vacancies than eligible candidates for promotion to lieutenant before the expiration date of the anticipated "eligible list."

Before ruling on appellant's request for a waiver, the Commission admitted eleven applicants to take the lieutenant examination in May 2012. Of those applicants, three failed the examination; eight passed and were put on the "eligible list."

On July 3, 2012, the Commission notified the Essex County Sheriff's Office by email that five employees were seeking a reduction of the time-in-grade requirement. The Commission asked the Sheriff's Office if it would request a waiver of that requirement. The Sheriff's Office responded that it did not anticipate such a high number of retirements or resignations that a waiver was necessary to fill anticipated vacancies.

In August 2012, the Sheriff's Office promoted two lieutenants to captain and one sergeant to lieutenant. Appellant contends that two of these promotions were "provisional," meaning they were temporary appointments made from outside the prior "eligible list" and before issuance of the new one, thus indicating that the prior list had been exhausted. The promotions reduced from eight to seven the number of lieutenant candidates on the new "eligible list" resulting from the most recent examination.

On September 7, 2012, the Commission denied appellant's administrative appeal. It noted that the Sheriff's Office as the appointing authority did not request a reduction of the one-year time requirement and disagreed with appellant's assessment of the number of expected vacancies over the life of the new "eligible list." The Commission determined there was "no compelling reason" to establish eligibility for appellant and the other four officers who sought a waiver. Appellant unsuccessfully petitioned the Commission to reconsider its decision.

In his pro se brief in further appeal to this court, appellant raises a host of arguments, but none persuade us to interfere with the Commission's final decision.

Our standard of review from administrative decisions is limited in scope. In re Herrmann, 192 N.J. 19, 27 (2007); In re Carter, 191 N.J. 474, 482 (2007). An appellate court must uphold an administrative agency's quasi-judicial decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Herrmann, supra, 192 N.J. at 27-28 (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). "'Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of circumstances.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 201 (2001) (quoting Worthington v. Fauver, 88 N.J. 183, 204 (1982)).

We do not owe any deference to an agency's plainly unreasonable interpretation of a regulation. US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012). But a "strong presumption of reasonableness attaches to the actions of the administrative agencies." In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001); accord In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff d, 135 N.J. 306 (1994). This deferential standard of review controls our analysis even if we would have decided the matter differently. See Carter, supra, 191 N.J. at 483 ("[A] court may not substitute its own judgment for the agency's even though the court might have reached a different result.").

Appellant argues that rigidly imposing the one-year rule is contrary to the Commission s legislative authority. He cites New Jersey statutes, the New Jersey Administrative Code, and the New Jersey Constitution to argue that the Commission did not abide by its obligation to provide[] a fair balance between managerial needs and employee protections." N.J.A.C. 4A:1-1.1. Specifically, appellant contends that the Commission's decision is contrary to the constitutional mandate that promotions be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive. N.J. Const. art. VII, 1, para. 2. We find no merit in this argument.

The Civil Service Act, N.J.S.A. 11A:1-1 to 12-6 ("Act"), confers upon the Commission the authority to promulgate rules and regulations that effectuate its purposes. N.J.S.A. 11A:4-1.2. The Act requires the Commission to establish the minimum qualifications for promotion and . . . provide for the granting of credit for performance and seniority where appropriate. N.J.S.A. 11A:4-14. In exercising this authority, the Commission has promulgated the regulation that requires applicants for promotional examinations to have, among other things, one-year of permanent service in a title to which the examination is open. N.J.A.C. 4A:4-2.6(a)(1).

Requiring applicants to have completed one-year in a lower position does not contradict the constitutional mandate that employees be promoted "according to merit and fitness" but only sets a reasonable floor at which the Commission begins to evaluate the qualifications of applicants. The Constitution does not mandate that all promotional opportunities be made available to all employees. We have previously upheld the one-year eligibility requirement. Watson v. Farrell, 116 N.J. Super. 434, 436 (App. Div. 1971).

The regulation also provides three grounds for waiver of the time-in-rank requirement

(g) The time requirements . . . may be reduced to completion of the working test period if

1. There is currently an incomplete promotional list and/or the number of employees eligible for examination will result in an incomplete list;

2. It appears that vacancies to be filled within the duration of the promotional list will exceed the maximum number of eligibles that could result from examination; or

3. Other valid reasons as determined by the Chairperson of the Civil Service Commission or designee.

[N.J.A.C. 4A:4-2.6(g) (emphasis added).]

Appellant contends the Commission's denial of a waiver was arbitrary, capricious, and unreasonable because it disregarded the credible evidence he submitted that actual and anticipated retirements and promotions would exhaust the new "eligible list" before its expiration date in September 2015. He criticizes the Commission's investigation of his contentions and its acceptance of an emailed response from the Sheriff's Office that a waiver was not required to fill future vacancies.

When the Commission inquired of the Sheriff's Office whether it sought a waiver, it received a clear negative answer. In its final decision, the Commission noted that "[t]he determination as to whether a vacancy exists and/or will be filled is generally left to the discretion of the appointing authority" and that the Commission could not force the appointing authority to promote officers. The Commission acknowledged the evidence submitted by appellant but determined that "it is outside the purview of the Commission to anticipate promotions to be made by an appointing authority," and that "the Commission relies on actual numbers" of anticipated vacancies provided by the appointing authority and need not rely on "assumptions gleaned from prior appointing authority actions and anticipated employee attrition." This explanation is not indicative of arbitrary, capricious, or unreasonable action but of a careful consideration and a reasoned denial of appellant's request.

The Commission also stated that "the [waiver] provisions of N.J.A.C. 4A:4-2.6(g) exist so that the appointing authority may decide at the time of announcement whether it would like to expand the applicant pool." It concluded that the regulation did not authorize an employee such as appellant to request that the one-year rule be waived for him.

Appellant points to general language in the regulations advocating fairness in the process for promotions. In addition, he reads a comment in the New Jersey Register stating that the waiver "is employee oriented to cases where too few or virtually no applicants will be deemed eligible for a given promotional examination," 20 N.J.R. 1187 (June 6, 1988) as equating to authorization for an employee's request of a waiver.

These general policy statements do not confer authority on an applicant to request a waiver for the benefit of the appointing authority or the employee's own benefit. Because the appointing authority is in the best position to gauge its needs and to decide when and how many promotions to offer, the appointing authority, not individual employees, must decide whether a waiver should be requested.

Even assuming that an individual employee may request a waiver, the regulation does not mandate that that the time-in-rank requirement be reduced whenever there might be a shortage of future eligible candidates. It provides that the time-in-rank requirement "may" be reduced. N.J.S.A. 4A:4-2.6(g). The word "may" implies that a waiver is discretionary. See Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 325 (2000) (The word "may" connotes permissive rather than mandatory action.).

We defer to the Commission's reasonable interpretation of N.J.A.C. 4A:4-2.6(g). See Hough, supra, 210 N.J. at 200. The regulations do not compel the Commission to waive the qualifying requirements whenever circumstances indicate there may be more vacancies than eligible candidates to fill them.

Finally, appellant argues that promotions must be given on the basis of promotional examinations, not by provisional appointment. He contends this "important public policy" will be subverted because the current list of eligible candidates will be exhausted before its three-year expiration date, thus enabling the appointing authority to make provisional appointments.

N.J.S.A. 11A:1-2(a)-(b) declares it to be "the public policy of this State to select and advance employees on the basis of their relative knowledge, skills, and abilities [and] . . . to provide public officials with appropriate appointment, supervisory and other personnel authority to execute properly their constitutional and statutory responsibilities[.]" N.J.S.A. 11A:4-13 permits provisional appointments not to exceed twelve months when there is no complete certification of eligible candidates and the appointing authority certifies that the appointee meets minimum qualifications. Once a provisional appointment is made, the examination process is triggered. N.J.S.A. 11A:4-5.

Appellant's public policy argument does not overcome the appointing authority's discretion not to request a waiver. Appellant did not demonstrate that the eligible candidates who met the time-in-rank requirement and passed the lieutenant examination are insufficient in number to meet the needs of the Sheriff's Office until a new eligible list is generated. In the absence of any evidence of corruption or improper purpose, appellant cannot invoke the Commission's or the court's authority to dictate to the Sheriff's Office whether it should request a waiver.

Having considered appellant's additional arguments, we find them to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 The Commission's decision as to Esposito was consolidated with those of four other similarly situated officers, hence the caption of this case beginning with the name Peter Corbo. None of the other four officers appealed the Commission's decision.

2 The facts as presented by appellant are that he was three days short of the one-year requirement. The Commission claims he was eight days short. The difference is inconsequential.