IN THE MATTER OF VINCENT ANTENUCCI DIVISION OF STATE POLICE DEPARTMENT OF LAW AND PUBLIC SAFETY

NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
  internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-2165-19

IN THE MATTER OF
VINCENT ANTENUCCI,
DIVISION OF STATE POLICE,
DEPARTMENT OF LAW AND
PUBLIC SAFETY.
____________________________

                Argued October 12, 2021 – Decided October 27, 2021

                Before Judges Rothstadt and Mayer.

                On appeal from the New Jersey Civil Service
                Commission, Docket No. 2019-3633.

                Michael A. Bukosky argued the cause for appellants
                Vincent Antenucci and the State Trooper's Non-
                Commissioned Officers Association (Loccke, Correia,
                & Bukosky, attorneys; Michael A. Bukosky and Corey
                M. Sargeant, of counsel and on the briefs).

                Eric A. Reid, Deputy Attorney General, argued the
                cause for respondent New Jersey Civil Service
                Commission (Andrew J. Bruck, Acting Attorney
                General, attorney; Sookie Bae-Park, Assistant Attorney
                General, of counsel; Eric A. Reid, on the brief).

PER CURIAM
      Vincent Antenucci and the State Trooper's Non-Commissioned Officers

Association (Association) appeal from a December 23, 2019 final decision of

the Civil Service Commission (Commission) denying Antenucci's request for

waiver of a repayment of salary overpayment under N.J.A.C. 4A:3-4.21. We

affirm.

      We briefly recount the relevant facts. Antenucci is employed by the New

Jersey State Police. In 2012, he received a job promotion. Due to a purported

administrative error, the New Jersey State Police inadvertently placed Antenucci

on the wrong salary level.     Instead of a modest raise, Antenucci's salary

increased to $87,913.02 instead of $81,840.18.

      Over the years, Antenucci received three more promotions and the alleged

salary error compounded. In May 2019, the New Jersey State Police informed

Antenucci of a salary overpayment in the amount of $29,000 and advised he

would have to return the money.

      Antenucci applied to the Commission for a repayment waiver under

N.J.A.C. 4A:3-4.21.       He argued the overpayment resulted from an

administrative error by the New Jersey State Police, he was unaware of the

overpayment because he was due for a salary increase at the time of initial

overpayment, and repayment would cause his family to suffer an economic


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hardship. The Commission rejected the waiver because Antenucci failed to

show he was reasonably unaware of the error and repayment would cause him

economic hardship.

      In support of his contention that repayment of the $29,000 amount would

cause economic hardship, Antenucci provided the Commission with his monthly

household budget. The budget showed credit card debts, an unpaid home equity

line of credit debt, an outstanding personal loan, and other monthly expenses,

including cable service, which exceeded his family's monthly net income.

      The Commission rejected Antenucci's request for a waiver of salary

overpayment request. To be entitled to a waiver under the regulation, Antenucci

needed to demonstrate: (1) the overpayment was such that the employee could

reasonably have been unaware of the error; (2) the overpayment resulted from a

specific administrative error and was not due to mere delay in processing a

change in pay status; and (3) the terms of the repayment schedule resulted in an

economic hardship to the employee. See N.J.A.C. 4A:3-4.21.

      The Commission found "the record clearly shows that an administrative

error resulted in the salary overpayment," thereby satisfying one of the

requirements under N.J.A.C. 4A:3-4.21. However, the Commission concluded

Antenucci failed to satisfy the regulation's other requirements for entitlement to


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a waiver. The Commission determined the nearly $10,000 salary increase was

substantial enough that Antenucci should have been on notice a salary error

occurred. The Commission also rejected Antenucci's argument that repayment

would cause economic hardship because the "the appointing authority ha[d] not

set any repayment schedule."

      Following issuance of the Commission's decision, the Association became

involved in the matter. In January 2020, the Association filed a grievance with

the Public Employment Relations Commission (PERC) against the New Jersey

State Troopers. The issues raised in the Association's brief in this appeal have

been submitted to PERC for resolution. During oral argument, we were advised

an arbitration hearing before PERC is scheduled for December 2021.

      The sole issue for our review is whether the Commission's denial of

Antenucci's request for a waiver of the repayment of his salary overpayment was

arbitrary, capricious, unreasonable, or lacked support in the record. Antenucci

presented no other issues to the Commission. Appeals to this court involve

"review[ing] final decisions or actions of any state administrative agency or

officer." R. 2:2-3.

      Here, the arguments on appeal, other than the Commission's denial of

Antenucci's request for waiver of any repayment of his salary overpayment, have


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been presented to PERC as part of a grievance filed by the Association and are

not properly before this court for review. See Nieder v. Royal Indem. Ins. Co.,

 62 N.J. 229, 234 (1973). The Association's newly raised arguments on appeal

will be adjudicated by a PERC arbitrator, including the disputed salary

overpayment.     We further note PERC's adjudication of the Association's

grievance does not bar Antenucci's filing a new waiver application pending

PERC's determination on the issue of any salary overpayment.

      Our scope of review of an administrative agency's final determination is

limited. In re Herrmann,  192 N.J. 19, 27 (2007). "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."   Id. at 27-28.    The burden of proving a decision was arbitrary,

capricious, or unreasonable is on the party challenging the agency action.

Lavezzi v. State,  219 N.J. 163, 171 (2014) (citing In re J.S.,  431 N.J. Super. 321,

329 (App. Div. 2013)).

      When reviewing an agency decision, we examine (1) whether the agency

action violated "express or implied legislative policies," (2) whether there is

substantial evidence in the record to support the agency's decision, and (3)

whether in applying the law to the facts, the agency reached a conclusion that


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"could not reasonably have been made on a showing of the relevant factors."

Allstars Auto. Grp., Inc. v. N.J. Motor Vehicle Comm'n,  234 N.J. 150, 157

(2018).      Where an agency's decision satisfies these criteria, we accord

substantial deference to the agency's fact-finding and legal conclusions,

recognizing "the agency's 'expertise and superior knowledge of a particular

field.'" Circus Liquors, Inc. v. Governing Body of Middletown Twp.,  199 N.J.
 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr.,  127 N.J. 500,

513 (1992)).

     N.J.A.C. 4A:3-4.21 sets forth the standards for a waiver of repayment of

a salary overpayment.       The regulation requires an applicant to show the

following:

              1) the circumstances and amount of the overpayment
              were such that an employee could reasonably have been
              unaware of the error; 2) the overpayment resulted from
              a specific administrative error, and was not due to mere
              delay in processing a change in pay status; 3) the terms
              of the repayment schedule would result in economic
              hardship to the employee.

              [N.J.A.C. 4A:3- 4.21.]

     Here, the Commission agreed Antenucci's purported salary overpayment

occurred because of an administrative error. While Antenucci met one of the




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requirements of N.J.A.C. 4A:3- 4.21, he was required to satisfy all three

components of the regulation to be entitled to a waiver.

      The Commission reviewed Antenucci's circumstances to determine

whether he was reasonably aware of the salary error and if repayment would

cause him economic hardship. Antenucci argued it was unreasonable for him to

be aware or question the increase he received. Since he expected a pay raise,

Antenucci presumed the extra money in his paycheck was part of his planned

raise. Antenucci further claimed an employee in his position, someone who is

not an accountant or other financial professional, could reasonably have been

unaware of the salary error.

      The Commission rejected these arguments. The Commission explained

compensation for New Jersey State Troopers is public information and there

were several other sources of information Antenucci could and should have

consulted to conclude the salary amount was incorrect.       Additionally, the

Commission concluded the substantial salary increase itself should have caused

Antenucci to investigate.

      Antenucci also argued repayment would cause his family to suffer

economic hardship.    According to Antenucci, the family's monthly budget

demonstrated an inability to incur an additional monthly expense.


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      The Commission determined Antenucci failed to demonstrate economic

hardship because the New Jersey State Police had not set a repayment schedule.

Because no repayment schedule had been established, Antenucci failed to satisfy

his burden of showing an inability to repay his salary overpayment for

entitlement to a waiver.1 Further, the Commission concluded certain monthly

expenses incurred by Antenucci and his family were non-essential and therefore

repayment would not result in economic hardship because Antenucci could

adjust his monthly expenses when a repayment schedule is established.

      Having reviewed the record, we discern no basis for disturbing the

Commission's decision on Antenucci's waiver request.         The Commission's

determination, based on the undisputed evidence in the record, was not arbitrary,

capricious, or unreasonable. Antenucci's remaining arguments are presently

pending a scheduled hearing before a PERC arbitrator. Our affirmance of the

Commission's December 23, 2019 decision is based on the record before the

agency on that date. Nothing precludes Antenucci's filing of a new waiver




1
  During oral argument, counsel confirmed the New Jersey State Troopers have
yet to establish a repayment schedule to collect Antenucci's purported salary
overpayment.


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application after the PERC arbitrator renders a decision on the Association's

grievance claims.

     Affirmed.




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