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                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2286-14T2


IN THE MATTER OF JOSEPH LANG.

______________________________

           Submitted February 28, 2017 - Decided July 11, 2017

           Before Judges Ostrer and Vernoia.

           On appeal from the New Jersey Civil Service
           Commission, CSC Docket Nos. 2015-342, 2015-
           1335, 2015-1336, 2015-1337 and 2015-1338.

           Fein, Such, Kahn & Shepard, P.C., attorneys
           for appellant Joseph Lang (Brian W. Kincaid,
           on the brief).

           Christopher S. Porrino, Attorney General,
           attorney   for   respondent   Civil   Service
           Commission (Melissa H. Raksa, Assistant
           Attorney General, of counsel; Todd A. Wigder,
           Deputy Attorney General, on the brief).

PER CURIAM

     Appellant Joseph Lang appeals from a December 5, 2014 final

agency   decision   of   the   Civil   Service    Commission     (Commission)

denying his request for retroactive permanent appointment to the

second-level supervisor title of Fire Captain with the Harrison

Fire Department. We affirm.
                                    I.

       Lang was employed by the Harrison Fire Department as a Fire

Captain, which at the time was a first-level supervisor title.                  In

2009, he passed a promotional examination for the second-level

supervisor title, which was then known as Battalion Fire Chief.

Lang and Henry Richard, Joseph Nichirco, John Dwyer and John

Crilley, who were also eligible for promotion to the Battalion

Fire   Chief   title,   were   placed       on   an   eligible   list   that   was

effective for a three-year period commencing on September 2, 2010.

Richard ranked first on the list, Nichiro was second, and Lang was

third. In 2011, Richard was promoted to Battalion Fire Chief.

       Due to financial difficulties, Harrison implemented layoffs

in 2011, eliminating the Deputy Fire Chief and Battalion Fire

Chief titles and reducing the number of first-level supervisor

Fire Captains from ten to five. Under the plan, the fire department

consisted of a Fire Chief, five Fire Captains and twenty-four Fire

Fighters.

       As a result of the layoffs, Richard was demoted from Battalion

Fire Chief to the second-level supervisor Fire Captain title. The

four Fire Captains with the greatest seniority, Nichirco, Dwyer,

John Mulrenan and Robert Gillen, retained their titles as Fire

Captains. Because they had less seniority, Lang and another Fire

Captain, Ronald Greenemeier, were demoted to Fire Fighters.

                                        2                                A-2286-14T2
     Harrison       subsequently     negotiated     an    agreement     with   the

affected employees' collective negotiations representative. Under

the agreement, Harrison created a new first-level supervisor title

of Fire Lieutenant,1 and the Fire Captain title became a second-

level supervisor title.

     In November 2011, Harrison informed the Commission about a

plan to reorganize the department. Harrison stated the department

would consist of a Fire Director,2 five second-level supervisor

Fire Captains, four first-level supervisor Fire Lieutenants, and

twenty Fire Fighters. To implement the reorganization, Harrison

sought    the    Commission's     approval    to    promote   Richard,     Dwyer,

Nichirco, and Lang to the second-level supervisor Fire Captain

title. Harrison also proposed making a provisional appointment of

Mulrenan,       Gillen,    or   Greenemeier   to    the   fifth    Fire   Captain

position.

     In    a    December    8,   2011   letter     responding     to   Harrison's

proposal, the Commission advised that Richard, Nichirco, Mulrenan,

Dwyer and Gillen were already serving in the Fire Captain title.

The Commission further stated that Lang and Greenemeier were in


1
  Harrison subsequently adopted an ordinance creating the first-
level supervisory title of Fire Lieutenant.
2
  Following the implementation of the layoff plan, Harrison
eliminated the Fire Chief title and placed the supervision of the
fire department with a civilian Fire Director.

                                        3                                 A-2286-14T2
the Fire Fighter's title and therefore would have to first be

appointed to the Fire Lieutenant title through certification of

the special reemployment list for a first-level supervisor title.

     In   June    2012,    Lang   and   Greenemeier       were    appointed   Fire

Lieutenants. Harrison did not take any action to appoint Richard,

Dwyer,    Nichirco,       Mulrenan,     or   Gillen   to     the    second-level

supervisor Fire Captain title. Two years later, its failure to do

so provided the basis for the requests by Harrison and Lang for

the retroactive appointments to the second-level supervisor Fire

Captain title that are at issue here.

     In   2014,   the     Commission     announced    a    Fire    Captain    test.

Harrison requested to be included in the test but only for a

second-level supervisor Fire Captain title. The Commission advised

the test would be a second-level supervisor's test, which was open

to Fire Lieutenants.

     Harrison was subsequently advised by the Commission that

three of Harrison's Fire Captains, Nichirco, Dwyer and Gillen,3

were required to take the test. Harrison objected and asserted

that Nichirco, Dwyer and Gillen were in their Fire Captain titles



3
  Richard was not required to take the test because he had been
appointed to a second-level supervisor position from the 2010
Battalion Fire Chief promotional list prior to his 2011 demotion
to Fire Captain. Mulrenan had applied for retirement and was not
required to take the test.

                                         4                                A-2286-14T2
pursuant to the Commission's December 8, 2011 letter. Harrison

also asserted it did not request certification        for its 2011

appointments of Richard, Nichirco and Dwyer to the Fire Captain

title from the Battalion Fire Chief eligible list because it

implemented the Commission's directive in the letter. Harrison

noted it never intended to require that Dwyer and Nichirco take

the Fire Captain test because they performed the second-level

supervisor's duties for two years and were on the 2010 Battalion

Fire Chief promotional list, which expired in 2013.

     Harrison also argued that had it known the Commission would

require that Dwyer and Nichirco take a Fire Captain's test in

2014, it would have requested in 2011 that the Commission certify

the list for appointments to the second-level supervisor Fire

Chief title, and would have promoted Dwyer and Nichirco from the

list. Harrison also argued that, for the same reason, it would

have appointed Lang in 2011 to Fire Chief because he was also on

the Battalion Fire Chief eligible list.

     Harrison requested that the Commission revive the expired

Battalion Fire Chief eligible list to permit the appointment of

Nichirco, Dwyer and Lang to the second-level supervisor Fire Chief

title. Harrison further requested that the Commission waive the

requirement that Gillen take the test because he performed the

duties of a Fire Captain since 2011, and passed a second-level

                                5                          A-2286-14T2
supervisor exam in 2000, and therefore did not need any further

testing.

     In its December 5, 2014 final decision, the Commission found

that when Harrison reorganized the fire department in 2011, it

failed to follow required certification procedures for the second-

level supervisors, and "simply left . . . Richard, Nichirco,

Mulrenan, Dwyer and Gillen unchanged in their position of Fire

Captain." The Commission also stated that Harrison "failed to

follow   certification      procedures        and     timely    appoint"    Richard,

Dwyer,   and    Nichirco    as   "second-level          supervisors     from"       the

Battalion Fire Chief eligible list, and failed to make "provisional

appointments pending promotional examinations for . . . Gillen and

Mulrenan." Harrison erred by failing to make changes to the

official records after the 2011 reorganization. The Commission

determined Harrison's failure "to take [the] steps to effectuate

appointments from the Battalion Fire Chief . . . list is a clear

administrative error on its part."

     The    Commission      determined         Richard        was   unaffected       by

Harrison's errors because he had been appointed to the second-

level supervisor Battalion Fire Chief title, and his regular

appointment     to   Fire   Chief    could       be    made    from   the    special

reemployment     list   during    the     2011      reorganization.         Based    on

equitable      considerations,      the       Commission       concluded     it     was

                                          6                                   A-2286-14T2
appropriate to revive the Battalion Fire Chief eligible list and

retroactively appoint Dwyer and Nichirco from it because they were

otherwise eligible for appointment from the list in 2011, and

performed the duties of a second-level supervisor Fire Captain

since that time. The Commission rejected Harrison's request for a

waiver from the test requirement for Gillen because he was not on

the Battalion Fire Chief eligible list and therefore was not

entitled to a retroactive appointment based on the requested

revival of the list.

     The Commission also denied Lang's request for a retroactive

permanent appointment to Fire Captain from the Battalion Fire

Chief eligible list. The Commission determined Lang did not have

a vested property interest in the Fire Chief position because the

list expired in 2013. The Commission found Lang did not commence

or complete a working test period in the second-level supervisor

Fire Captain title, hold a provisional second-level supervisor

title, or perform the duties of a second-level supervisor. The

Commission noted that in November 2012, it made a classification

determination that Lang was performing first-level supervisor Fire

Lieutenant    duties,   and   Lang   did   not    appeal   the     Commission's

decision.

     The Commission also reasoned that if in 2011 Harrison had

properly    requested   certification      of    the   Battalion    Fire   Chief

                                      7                                 A-2286-14T2
eligible list and the special reemployment list, Richard, Nichirco

and Dwyer would have been removed from the eligible list based on

their appointments to the Fire Captain title. Their appointments

would    have      left    only       Lang   and   Crilley     on    the    list,    thereby

rendering the list incomplete. The Commission stated that because

Lang had never performed second-level supervisor duties following

the 2011 reorganization, it could not be assumed Harrison would

have appointed Lang a Fire Captain from the Batallion Fire Chief

list if Harrison had not erred in failing to properly make the

2011 Fire Captain appointments. The Commission concluded that Lang

was not entitled to a retroactive permanent appointment to the

Fire Captain title because in 2011, Harrison knew it could have

only five Fire Captains, five persons were performing Fire Captain

duties,      and    "Lang       was    not   one    of    them."     Lang   appealed       the

Commission's final decision.4

                                                   II.

       Our    review       of    an    agency's     decision        is   limited.     In    re

Stallworth, 208 N.J. 182, 194 (2011). We "afford[] a 'strong

presumption        of     reasonableness'          to    an   administrative        agency's

exercise of its statutorily delegated responsibilities." Lavezzi

v. State, 219 N.J. 163, 171 (2014) (quoting City of Newark v. Nat.



4
    Harrison did not appeal.

                                               8                                     A-2286-14T2
Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539, cert.

denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980)). A

reviewing court "should not disturb an administrative agency's

determinations or findings unless there is a clear showing that

(1) the agency did not follow the law; (2) the decision was

arbitrary, capricious, or unreasonable; or (3) the decision was

not supported by substantial evidence." In re Virtua-West Jersey

Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008).

The party challenging the agency's action has the burden of proving

that    the   action    was   arbitrary,   capricious,     or    unreasonable.

Lavezzi, supra, 219 N.J. at 171.

       Lang argues the Commission's decision was made without a

rational basis and is arbitrary, capricious and unreasonable. He

contends the Commission erred in finding that he never performed

second-level supervisor duties because he performed such duties

prior to the 2011 reorganization. He asserts he was entitled to

the    requested   retroactive     appointment   because    he    was    on   the

Battalion Fire Chief eligible list, and he is similarly situated

to Nichirco and Dwyer and the Commission granted retroactive

appointments to them.

       The Commission has the authority to revive an expired eligible

list   "to    correct   an    administrative   error."   N.J.S.A.       11A:4-6;

N.J.A.C. 4A:4-3.4. The Commission exercised its authority here to

                                       9                                 A-2286-14T2
permit Harrison to retroactively appoint Nichirco and Dwyer to the

Fire Captain title because Harrison's failure to properly appoint

them in 2011 was based on the erroneous belief the Commission's

December 8, 2011 letter rendered the appointments unnecessary. The

Commission reasoned that but for Harrison's administrative errors,

Harrison would have properly appointed Nichirco and Dwyer in 2011

from the Battalion Fire Chief eligible list which was then in

effect.   The    Commission's     decision      that   Harrison     would     have

otherwise appointed Nichirco and Dwyer in 2011 is supported by the

evidence showing that Nichirco and Dwyer were promoted to the

second-level      supervisor      Fire     Captain     title       during        the

reorganization based on the Battalion Fire Chief eligible list,

and performed the duties of the title thereafter.

     Lang's     arguments   are   based    on    the   premise     that     he    is

identically situated to Nichirco and Dwyer, and the Commission

therefore   arbitrarily     denied   his   request     for   the   retroactive

appointment. The evidence presented to the Commission demonstrated

otherwise. Unlike Nichirco and Dwyer, Harrison could not have

appointed Lang to the second-level supervisor Fire Captain title

in 2011 because he had been demoted to Fire Fighter as part of the

2011 layoffs and therefore was not eligible for a second-level

supervisor position. Moreover, in 2011 Harrison did not take any

action to appoint Lang to the second-level supervisor title as it

                                     10                                   A-2286-14T2
did for Nichirco and Dwyer. Instead, Harrison appointed Lang to a

first-level supervisor title, Fire Lieutenant. In addition, the

evidence     showed     Nichirco      and        Dwyer   performed      second-level

supervisor duties at all times following the 2011 reorganization,

and that Lang performed only first-level supervisor duties as a

Fire Lieutenant.

     The evidence supports the Commission's determination that

Harrison's    2011     administrative           errors   in   failing   to   properly

appoint    Nichirco       and       Dwyer        warranted     their      retroactive

appointments. The evidence also showed Harrison's errors had no

impact on Lang because even without them, he would not have been

appointed to the second-level supervisor Fire Captain title. Thus,

Lang stood in shoes very different from those of Nichirco and

Dwyer. Left unremedied, Harrison's 2011 errors adversely affected

Nichirco and Dwyer. The errors, however, were irrelevant to Lang's

appointment    in     2011,   and    the    Commission        therefore    reasonably

determined there was no basis to retroactively appoint Lang to

Fire Captain.

     The Commission's determination that Lang was not entitled to

a retroactive appointment based on Harrison's 2011 administrative

errors is well-reasoned and supported by the evidence. We do not

discern anything arbitrary, capricious, or unreasonable in the



                                           11                                 A-2286-14T2
Commission's decision, and Lang has not established it was contrary

to law. See Virtua-West Jersey Hosp., supra, 194 N.J. at 422.

     Lang's remaining arguments are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

     Affirmed.




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