                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-5150-16T1

IN THE MATTER OF CHANGES
                                            APPROVED FOR PUBLICATION
IN THE STATE CLASSIFICATION
PLAN, COMMUNICATIONS                                 July 12, 2019
OPERATOR, DEPARTMENT OF                         APPELLATE DIVISION
CORRECTIONS.1
_______________________________

              Submitted May 15, 2019 – Decided July 12, 2019

              Before Judges Alvarez, Nugent and Reisner.

              On appeal from the New Jersey Civil Service
              Commission, Docket No. 2017-3900.

              Oxfeld Cohen, PC, attorneys for appellant IFPTE Local
              195 (Arnold Shep Cohen, of counsel and on the briefs;
              Jesse Humphries, on the briefs).

              Gurbir S. Grewal, Attorney General, attorney for
              respondent Civil Service Commission (Melissa Dutton
              Schaffer, Assistant Attorney General, of counsel;
              Pamela N. Ullman, Deputy Attorney General, on the
              brief).

        The opinion of the court was delivered by

REISNER, J.A.D.




1
    We have corrected typographical errors in the agency's caption.
      This case presents the issue whether the Chairperson of the Civil Service

Commission (Chairperson) is authorized to approve the creation of a new job

title. We conclude that the Chairperson has that authority and did not act

arbitrarily in approving the title at issue here.

      The appeal had its genesis when the Department of Corrections (DOC)

submitted a request to the Civil Service Commission (Commission) for the

creation of a new title, "Communications Operator, Department of Corrections."

The new title would allow corrections officers instead of civilian employees to

staff the center control units at the State's prisons. In his February 23, 2015

letter to the Chairperson setting forth the request, the Corrections Commissioner

asserted that the new title was required to ensure the prisons' continued security.

The Chairperson referred the request to the Commission's Agency Services

Division (Agency Services) for review.2 Agency Services "evaluated the DOC's

request and developed a proposed job specification" for the title. On December

17, 2015, Agency Services transmitted the proposal to the Commission for



2
    By statute, the Chairperson is the agency's chief executive officer and
administrator. N.J.S.A. 11A:2-3. According to the agency's regulations, the
Commission "consists of" the Chairperson, the Civil Service Commission, and
"[s]uch subdivisions as the Chairperson may deem necessary." N.J.A.C. 4A:1-
3.1. There is no separate regulation creating the Division of Agency Services.


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placement on its agenda. However, the Commission was unable to act on the

item, for lack of a quorum, after one of the three commissioners recused herself.3

      About eighteen months later, when the Commission was still unable to

act, the DOC Commissioner sent a June 15, 2017 request to the Chairperson for

interim relief. A follow-up request from the DOC noted that "[t]he staffing

levels of Communications Operators have dropped to the point of potentially

compromising safety and security at all correctional facilities," and creation of

the new title would permit the DOC to address the staffing problem. Relying on

N.J.A.C. 4A:1-3.2(b)(3), which authorizes the Chairperson to grant interim

relief in pending appeals "[b]etween meetings of the Commission," the

Chairperson issued a decision granting interim relief on June 23, 2017. The

interim decision found that the change was necessary for the safety of the prisons

and noted that Agency Services had previously notified IFPTE Local 195 (the



3
  The Commission, as a voting body, is statutorily composed of five members,
appointed by the Governor with the advice and consent of the Senate, but it can
act with a quorum of three members. N.J.S.A. 11A:2-3. For years, the
Commission lacked sufficient members to constitute a quorum, leading to its
inability to decide contested cases. See In re Corbo, __ N.J. __, __ n.2 (2019)
(slip op. at 7, n.2); In re Hendrickson, 235 N.J. 145, 149 (2018). It still has only
three appointed members, leaving the Commission one recusal away from an
inability to act. The lack of a full complement of commissioners is a matter of
public interest, but one appropriately addressed by the Governor and the
Legislature. N.J.S.A. 11A:2-3.
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                                         3
union) of the proposed new title, pursuant to N.J.A.C. 4A:3-3.3(a)(4) (requiring

notification to appointing authorities and "other affected persons") .

      The union, which represents the affected DOC employees, filed an appeal

from the June 23, 2017 decision.        However, on September 1, 2017, the

Chairperson reconsidered the issue of interim relief, and concluded no such

relief was required because under Commission regulations amended in 2014, the

Chairperson was authorized to approve creation of the new title. He, therefore,

issued a final decision approving the new title.

      After the union filed its merits brief addressing both the June and

September decisions, the Commission filed a motion with this court to dismiss

the appeal, because the June decision was interlocutory, the union did not amend

its notice of appeal to include the September decision, and the June decision was

moot. We denied the motion and directed the Commission to brief the merits of

the appeal.

      Having reviewed the parties' merits briefs, we decline to address the

Chairperson's authority to issue interim relief, for two reasons. First, the issue

is moot because, on September 1, 2017, the Chairperson issued a final decision

approving the requested new title. That decision superseded the earlier decision

granting interim relief. Second, as further discussed below, the Chairperson's


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underlying action – the approval of a new title – is specifically authorized by

the Commission's regulations. Hence, this case does not implicate the union's

concern that in granting interim relief, the Chairperson may overstep the bounds

of his or her authority, in response to the Commission's inability to act due to

lack of a quorum.

      Next, we address the September 1, 2017 final decision. In challenging the

September 1 decision, the union contends that the decision to approve the title

was arbitrary and based on a one-sided process that excluded the union's

participation. The union also argues that the Chairperson lacked authority to

approve creation of the new title.

      After reviewing the record, we conclude that the decision was not arbitrary

and is supported by substantial credible evidence of an operational need for the

new title. See In re Johnson, 215 N.J. 366, 377 (2013); Karins v. City of Atl.

City, 152 N.J. 532, 540 (1998). The Chairperson's findings were explained at

length in the interim and final decisions, and no further discussion is warranted

here. R. 2:11-3(e)(1)(D), (E). We also conclude that the union had notice and

an opportunity to submit its views before the title was finally approved. On

August 2, 2017, in response to a motion for reconsideration of the June interim

decision, the Chairperson gave the union a further opportunity to submit "any


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additional argument and/or documentation." At that point, the union was aware

of the rationale for creating the new title, because the reasons were detailed in

the June interim decision. However, instead of submitting evidence supporting

its apparent view that the new title was not needed, the union's August 7, 2017

response simply reiterated that the union was deprived of an earlier opportunity

to address the merits of creating the title, and argued that the Chairperson lacked

authority to grant interim relief in this situation. Accordingly, we find no merit

in the union's argument that it was deprived of the opportunity for input on the

decision to create the new title.

      We next address the issue of the Chairperson's authority to approve new

titles. In rendering the final decision, the Chairperson reasoned as follows:


                  In accordance with N.J.S.A. 11A:2-6(d), the
            Commission, in June 2014, amended its regulations
            delegating to the Chairperson or designee unambiguous
            responsibilities regarding the administration of the
            State Classification Plan. Accordingly, N.J.A.C. 4A:3-
            3.3(a)(2) specifically requires the "Chairperson or
            designee" to implement and administer the State
            Classification Plan by establishing new titles.

The Chairperson reasoned that when Agency Services, as the Chairperson's

designee, evaluated the DOC's request, determined "there [was] a need for a new

title" pursuant to N.J.A.C. 4A:3-3.6(b), and developed job specifications for the


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                                        6
new title, N.J.A.C. 4A:3-3.6(c), it was then appropriate for the Chairperson to

exercise his authority under N.J.A.C. 4A:3-3.3(a)(2) by approving the new title.

      While we review legal issues de novo, we generally defer to an agency's

reasonable interpretation of its own regulations. See In re Freshwater Wetlands

Prot. Act Rules, 180 N.J. 478, 488-89 (2004). We find nothing unreasonable in

the   Chairperson's   interpretation   of   the   agency's   regulations,    which

unambiguously authorize the Chairperson to approve new titles. As noted in the

final decision, the Commission's regulations delegate to "[t]he Chairperson or

designee" the authority to "implement and administer the classification plans."

N.J.A.C. 4A:3-3.3(a).     That authority specifically includes the power to

"[e]stablish new titles." N.J.A.C. 4A:3-3.3(a)(2). We also note that N.J.A.C.

4A:3-3.5(a) gives "the Chairperson or designee" authority to reclassify a

position to a more appropriate title and, in that context, to "[e]stablish a new

title." N.J.A.C. 4A:3-3.5(a)(2).

      The union argues that N.J.A.C. 4A:3-3.6 should be construed as requiring

a vote of the Commissioners to approve a new title. We disagree. The union

relies on N.J.A.C. 4A:3-3.6(a), which states that "[t]he Civil Service

Commission may determine that a new title, title series, or job band is

necessary." However, viewing the wording and organizational structure of


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                                        7
section 3.6 as a whole, we conclude the term "Civil Service Commission" refers

to the agency rather than the Commissioners acting as a voting body.

      The succeeding subsections of 3.6 describe the process by which an

appointing authority may apply "to an appropriate representative of the Civil

Service Commission" for approval of a new title. N.J.A.C. 4A:3-3.6(b). The

following subsections then describe the process by which the "appropriate

Commission representative" will consider and approve a new title. N.J.A.C.

4A:3-3.6 (c), (d), and (f). Notably, subsection (f) addresses "[t]he effective date

of the creation of a new title by the appropriate Commission representative ."

N.J.A.C. 4A:3-3.6(f). There is no subsequent subsection requiring approval by

the Commission as a voting body.

       We find nothing unreasonable in the Chairperson's explanation of the

interface between sections 3.6 and 3.3, whereby the Commission's "appropriate

representative" – its Agency Services Division – vets an appointing authority's

request for a new title under section 3.6, creates a new job description and sets

an effective date, and the Chairperson then approves the recommendation under

section 3.3. There is no reason to depart from our usual deference to the agency's

construction of its own regulations. See Freshwater Wetlands, 180 N.J. at 488-

89.   The union's additional arguments concerning the interpretation of the


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                                        8
agency's regulations are without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

      Without citing to case law, the union contends that the Civil Service Act,

N.J.S.A. 11A:2-11, requires the Commission to create new titles and does not

permit delegation of that authority.         We ordinarily defer to an agency's

reasonable interpretation of its enabling statute. See Hargrove v. Sleepy's, LLC,

220 N.J. 289, 301-02 (2015). And, with respect to the Civil Service Act, our

courts "provide the widest possible interpretation of the Act as it was designed

to procure efficient public service and to maintain stability and continuity in

ordinary public employment." Johnson, 215 N.J. at 377.

      N.J.S.A. 11A:2-11 sets forth, in omnibus fashion, a listing of the agency's

statutory powers and responsibilities.       The section does not state that the

Commissioners, acting as a voting body, must carry out each one of the agency's

myriad responsibilities. As we have recognized in another context, such an

interpretation would be woefully impractical and lead to absurd results. See

R.H. Macy & Co. v. Dir., Div. of Taxation, 77 N.J. Super. 155, 177 (App. Div.

1962), aff'd o.b., 41 N.J. 3 (1963) (recognizing that the Director of the Division

of Taxation could not be expected to personally carry out all of the agency's

legislatively-required functions, without delegating to subordinates).      "[A]n


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agency may impliedly delegate administrative authority, if it is consistent with

the legislative purpose." Santaniello v. N.J. Dep't of Health & Senior Servs.,

416 N.J. Super. 445, 454 (App. Div. 2010) (citing R.H. Macy & Co., 77 N.J.

Super. at 177). This case certainly illustrates the Commission's need to delegate

authority to the Chairperson, thus fostering "efficient public service" and

maintaining "stability and continuity" for the agencies whose employment

policies the Commission regulates. Johnson, 215 N.J. at 377. We do not

construe N.J.S.A. 11A:2-11 as denying the authority to delegate.

      The union particularly relies on N.J.S.A. 11A:2-11(h). However, by its

terms, this section refers to the Commission's authority to "render the final

administrative decision" on "grievances" involving classification, salary, layoff

rights and other issues. This case concerns an application to create a new title.

It does not concern the filing of a grievance.

      Although the union does not cite this section, N.J.S.A. 11A:3-1 gives

"[t]he [C]ommission" authority to "assign and reassign titles among the career

service, senior executive service and unclassified service." To carry out that

responsibility, this section authorizes the Commission to "[e]stablish,

consolidate and abolish titles," among many other duties. Ibid. This case does

not involve moving a title from the classified to the unclassified service, but


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rather involves creating a new title within the classified service. See N.J.S.A.

11A:3-6 (requiring a public hearing before "moving a title from the career

service to the unclassified service").     However, without deciding whether

moving a title from classified to unclassified is a function the Commission can

delegate, we note the list of assorted other technical responsibilities in this

section suggests that the Legislature did not intend the Commission voting as a

body to carry out each of those subsidiary tasks. See R.H. Macy & Co., 77 N.J.

Super. at 177.

      While not directly on point, we note that in 1972, we held that the

Commission had no authority to sub-delegate some of its powers to appointing

authorities, i.e., the agencies whose employment activities the Commission

regulates. See Mercer Council No. 4, N.J. Civil Serv. Ass'n v. Alloway, 119

N.J. Super. 94, 99-100 (App. Div.), aff'd o.b., 61 N.J. 516 (1972). However, in

1986, the Legislature amended the Civil Service Act to permit such delegation,

under the supervision of the Commission. N.J.S.A. 11A:2-12 (authorizing the

Commission to delegate to "an appointing authority" the power to classify

positions and other "technical personnel functions," subject to the Commission's

supervision); L. 1986, c. 112, § 11A:2-12. If the Legislature was willing to

authorize sub-delegation to entities outside the Commission, it logically follows


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                                      11
that the Legislature would permit the Commission to delegate authority within

the agency.

      Additionally, as the Commission's brief points out, the Legislature has

reorganized the agency several times over the years. For example, in 1972, it

was known as the Department of Civil Service. N.J.S.A. 11:1-1 (repealed 1986).

In 1986, the Legislature created a two-part agency consisting of a Merit System

Board and a Department of Personnel. See L. 1986, c. 112. In 2008, the

Legislature created one unified agency called the Civil Service Commission. L.

2008, c. 29; N.J.S.A. 11A:2-1; N.J.S.A. 11A:11-1, -2. However, as the agency

points out, historically, the responsibility for approving new titles and

supervising other technical personnel functions has been vested in the agency's

chief executive officer. 4

      At one time, that officer was titled the Chief Examiner and Secretary. See

N.J.S.A. 11:7-1 (pre-1986); Alloway, 119 N.J. Super. at 97-98 (describing the

responsibilities of the Chief Examiner and Secretary). Later, the chief executive


4
   Nothing in the 2008 statute suggests a legislative intent to limit the
Commission's authority to delegate functions to the Chairperson. To the
contrary, N.J.S.A. 11A:11-2(h) gives the Commission broad authority to adopt
regulations reorganizing the agency into various units to handle "classification,
compensation," and other functions, "as the [C]ommission determines are
necessary" for its efficient operation. See N.J.S.A. 11A:2-6(d).


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                                      12
officer held the titles of Commissioner of Personnel and Chairperson of the

Merit System Board. N.J.S.A. 11A:2-3 (1986). Currently, the Chairperson of

the Commission is also the agency's chief executive officer and administrator.

N.J.S.A. 11A:2-3.5 The Commission's current regulations, delegating authority

to the Chairperson, are consistent with historical practice.

      In summary, we conclude that the Chairperson of the Civil Service

Commission was authorized to approve the creation of the new job title at issue

here, and his decision to approve the title was not arbitrary or capricious.

Accordingly, we affirm the Chairperson's September 1, 2017 final decision.

      Affirmed.




5
  By statute, the Governor is authorized to designate one of the Commission
members as the Chairperson, who serves in that role at the pleasure of the
Governor. N.J.S.A. 11A:2-3. However, the Chairperson's appointment as a
Commission member requires the advice and consent of the Senate. Ibid.
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