                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-0056-13T2

IN THE MATTER OF THE REALLOCATION
OF THE PROBATION OFFICER AND                      APPROVED FOR PUBLICATION
PROBATION OFFICER, BILINGUAL IN
                                                        July 22, 2015
SPANISH AND ENGLISH TITLES FROM
THE COMPETITIVE TO THE NON-                           APPELLATE DIVISION
COMPETITIVE DIVISION OF THE
CAREER SERVICE.
____________________________________

            Argued April 22, 2015 – Decided July 22, 2015

            Before Judges Alvarez, Waugh, and Carroll.

            On appeal from the New Jersey Civil Service
            Commission, Docket No. 2013-3251.

            Lynsey A. Stehling argued the cause for
            appellant   Probation  Association    of New
            Jersey (Law Offices of Daniel J. Zirrith
            LLC,   attorneys;  Daniel   J.  Zirrith,  of
            counsel; Ms. Stehling, on the brief).

            Todd A. Wigder, Deputy Attorney General,
            argued the cause for respondent New Jersey
            Civil Service Commission (John J. Hoffman,
            Acting Attorney General, attorney; Lewis A.
            Scheindlin, Assistant Attorney General, of
            counsel; Mr. Wigder, on the brief).

    The opinion of the court was delivered by

WAUGH, J.A.D.

    The     Probation      Association     of   New   Jersey     (Association)

appeals   the     final   administrative    agency    decision    of    the   New

Jersey    Civil    Service   Commission     (Commission)       concerning     the
manner in which the Administrative Office of the Courts (AOC)

selects   and    appoints   candidates   for   the    titles    of   Probation

Officer and Probation Officer, Bilingual in Spanish and English

(Bilingual      Probation   Officer).    We    reverse    and    remand     for

further consideration consistent with this opinion.

                                    I.

    We discern the following facts and procedural history from

the record on appeal.

    On December 5, 2011, pursuant to N.J.A.C. 4A:1-4.3, the AOC

requested the Commission to establish a one-year pilot program

to replace competitive testing for the Probation Officer and

Bilingual Probation Officer titles with an evaluation system.1

The AOC explained that the pilot program was necessary because

"at least four vicinages [had] exhausted [their] current pool

and several others [were] close to exhausting their pools" for

the Bilingual Probation Officer title.               The AOC made no such

factual assertion with respect to the Probation Officer title.

    The proposed program would replace the traditional system

of competitive testing that is generally used throughout the

State government with an evaluation program designed to focus on


1
  The AOC also sought to replace the four-month working test
period provided by N.J.A.C. 4A:4-5.2(b)(2) with a Probation
Officer Trainee title that would provide a full year of training
and evaluation, but subsequently withdrew that request.



                                    2                                 A-0056-13T2
a     candidate's     communication             skills,     personal      motivation,

interpersonal       skills,       analytical       skills,       reasoning    ability,

personal development, and time management skills.                         Candidates'

credentials would be reviewed and scored based on education and

work    experience.         The    cover    letters        and    resumes     would    be

evaluated and rated based on the number of errors in spelling,

grammar, and punctuation.             Candidates with the highest scoring

resumes would be selected for a structured panel interview, be

required to complete a timed writing sample, and be evaluated

for promptness and neatness.            Successful candidates would return

for    a   second     structured       interview,          after    which      selected

finalists would receive offers of employment.                      The program would

be administered by vicinage or a regional group of vicinages, as

appropriate.          The     AOC's        Division        of     Equal      Employment

Opportunity/Affirmative Action would review the candidate pools

for diversity, and preference for veterans would be taken into

consideration.

       The purpose of the proposed system was to allow for "a more

flexible    process     for       recruitment        and     selection       than     the

traditional civil service testing process provides."                           The AOC

was    particularly    interested          in    oral     examinations,       which    it

believed to be "a critical element of the selection process" and

which the Commission would not be able to administer because of




                                           3                                   A-0056-13T2
the large number of candidates.                     In addition, the AOC explained

that "the flexibility of the proposed pilot program would allow

vicinages the opportunity to proactively recruit before their

candidate         pool    is     empty,"         whereas        the       Commission        only

administers its examinations at set intervals.

       The    proposal         was   opposed             by   the   Association,         which

submitted opposition to the Commission.                         The Association argued

that the proposal violated article VII, section 1, paragraph 2

of the New Jersey Constitution, which requires public employees

to    be   selected       on   the   basis          of    "merit    and     fitness     to   be

ascertained, as far as practicable, by examination, which, as

far as practicable, shall be competitive."                            It further argued

that the AOC had not established sufficient need for the change

and that past instances of noncompetitive hiring had not been

successful.        Finally, the Association called for a fact-finding

hearing      in    the    Office     of        Administrative         Law     (OAL).         The

Association       subsequently       argued         that      any   problem    caused       when

hiring pools run low could be solved by interim, noncompetitive

appointments pursuant to N.J.A.C. 4A:3-1.2.

       On June 21, following further submissions by the parties

and   the    AOC's       acceptance       of    modifications         suggested        by    the

Commission's staff, the Commission issued a final administrative




                                                4                                     A-0056-13T2
order approving the pilot program.2               The year-long pilot program

was originally to have been implemented on July 1, 2012, but the

Commission      subsequently        delayed    the   implementation     date      to

November 1 at the AOC's request.

       In its decision, the Commission concluded that the program

was consistent with N.J.A.C. 4A:3-1.2(c)(2), which allows a job

title to be placed "in the noncompetitive division on an ongoing

or    interim     basis"   if   the   Commission     determines    "that     it    is

appropriate to make permanent appointments to the title and . .

. [c]ertification procedures based on ranked eligible lists have

not    or   are     not    likely     to   meet   the   needs     of   appointing

authorities due to such factors as salary, geographic location,

recruitment problems, and working conditions."              It explained:

            In this regard, the AOC has indicated that
            it has experienced problems maintaining a
            sufficient pool of qualified and interested
            candidates   in   all   geographic   locations
            during   the  duration    of  eligible    lists
            resulting from competitive testing. Indeed,
            one of the primary goals of the pilot
            program is to address this difficulty by
            providing the [AOC] with a way in which to
            continuously recruit qualified applicants .
            .   .   with    announcements    directed    to
            particular regions of the State on an as-
            needed basis.




2
  The Association appealed that decision.   That appeal                           was
dismissed as moot after the Commission approved use of                            the
noncompetitive process on an ongoing basis.



                                           5                               A-0056-13T2
        The    Commission    found      that     the     program     would     involve

"structured      recruitment      and     selection,"      which    would    focus   on

"six broad-based competencies for successful performance in the

.   .   .     titles,"   namely,     communication,         personal     motivation,

interpersonal skills, analysis and reasoning, self-development,

and time management.              "The competencies and assigned weights

[were] consistent with a job analysis performed by the Division

of Selection Services in 2009 for the affected titles."

        The program's success was to be evaluated by comparing the

previous        years'      and     the        pilot     program's       appointment

demographics,         termination          demographics,           and      discipline

demographics.         The   timeliness      of       appointments    would    also   be

compared, "considering average recruitment time, average time

prior to appointment, average turnaround time for bilingual test

results, and average turnaround time for appointments."                        Lastly,

managers      and   supervisors     would       be    surveyed     "regarding    [the]

quality, success, and commitment of [the] employees hired."

        The Commission explained that the major benefits of the

program would be

               the provision of greater flexibility in the
               recruitment and selection process for both
               the applicants and the AOC. In this regard,
               the   process   will    allow    a  consistently
               refreshed    pool    of    applicants     to   be
               considered    for    positions     in    specific
               geographic locations.       This will provide
               more     opportunities       for      individuals



                                           6                                  A-0056-13T2
            interested in pursuing a career in this
            field as their application opportunities
            will not be limited to the set time frames
            within which the Commission announces and
            administers open competitive examinations
            for the titles, which may not necessarily
            coincide with time period of peak interest,
            such as college graduation.       The AOC will
            likewise benefit from a fresh pool of
            applicants   and   less   likelihood    of   the
            exhaustion   of   the   candidate    pool   with
            interest   in   less   populated    or   popular
            geographic areas of the State.

      On May 21, 2013, less than seven months into the pilot

program,    the    AOC   applied    for       permanent       reallocation     of   the

Probation Officer and Bilingual Probation Officer titles from

the   Commission's       competitive      division       to    its    noncompetitive

division.     In support of its application, the AOC reported on

the implementation of the pilot program.

      According to its report, the AOC developed, posted, and

distributed a statewide notice of vacancy permitting candidates

to apply for positions in up to four vicinages.                         Resumes were

assigned to appropriate vicinages for review and ranking under

the uniform scoring system developed by the AOC with assistance

from the Commission's staff.            Candidate information was entered

into a centralized database.

      The    AOC    then    scheduled         regional        recruitment     events.

Candidates    scoring      five    or   better     on    their       resume   and   all

veterans were invited to attend.               The candidates were scheduled




                                          7                                   A-0056-13T2
in groups of ten at hourly intervals.                After check-in and an

informational   presentation,     each     candidate    participated      in    a

structured interview, completed an essay, and was then free to

leave.

    During the structured interview, candidates were asked the

same series of questions at each event.            Panelists were provided

with a response guide to ensure uniform, statewide scoring.                 The

writing sample topic was the same at each event.             There was also

a scoring guide for the essays.

    Candidates    were      assigned   a   final    score   based    on   their

performance at the recruitment event.              Seventy-five percent of

the score was based on the structured interview, ten percent on

the writing sample, five percent on promptness, and ten percent

on attention to detail.        Candidates scoring 60 or below were no

longer   considered   for    appointment.      The    remaining     candidates

were then banded into five numerical categories3 for the purpose

of creating candidate pools of three or more candidates.                       If

there were fewer than three candidates in a band, candidates

from the next lower band could be included to bring the pool up

to three.     Veterans scoring 61 or above received preference

regardless of score.


3
  The categories were 91 to 100, 81 to 90, 71 to 80, 61 to 70,
and below 60.



                                       8                              A-0056-13T2
       The AOC provided the Commission with the results of the

pilot program, based on the evaluation criteria established in

its    June   21,   2012    decision.       Of    2401    applicants,         523    were

selected to attend one of the recruitment events, which were

held    in    Burlington,     Camden,       Ocean,   Passaic,          and     Somerset

counties.     The process resulted in forty-six appointments over a

six-month period, in contrast to eighty-three, fifty, and forty-

six appointments in the previous three years respectively.

       There was one termination of an appointee during the six-

month period.       In the previous three years, there had been four,

one,    and   six    terminations       respectively.            Appointees          were

disciplined twenty-eight times during the six-month evaluation

period, while new appointees in the previous three years had

been     disciplined        seventy-two,         fifty,     and        fifty        times

respectively.

       During the pilot program, the AOC averaged 123 days, or

approximately       three     months,       from     recruitment             event    to

appointment.        Over two-thirds of the managers and supervisors

surveyed reported that the appointees were of high quality, with

highly satisfactory performance and demonstrated commitment to

succeed.      No comparable surveys were provided for the prior

three   years   during      which   appointments         were   made    through      the

traditional competitive process.




                                        9                                      A-0056-13T2
    The     Association      continued        to    express       opposition       to   the

program   and     requested     the    Commission       to    defer      its   decision

regarding the AOC's request that the program be made permanent

pending resolution of its July 2012 appeal of the pilot program.

Nevertheless,      on    July    18,     the       Commission       issued     a    final

administrative       decision         granting       the     AOC's       request        and

implementing the noncompetitive program on a permanent basis.

    In explaining its decision, the Commission summarized the

positions    of    the     parties     and     noted       that    the   Division        of

Classification       and      Personnel            Management       (Division)          had

recommended approval.           The Division had concluded that adoption

of the program on a permanent basis would

            provide the AOC with the flexibility needed
            to more efficiently and quickly meet hiring
            responsibilities.   Further, it [found] that
            the documentation presented by the AOC
            demonstrates   a  well-planned,   fair,  and
            equitable recruitment and selection process.
            Additionally, as set forth in N.J.A.C. 4A:3-
            1.2(c), certification procedures will not
            likely meet the needs of the AOC.       [The
            Division] also note[d] that no eligible
            lists exist for the subject titles.

Citing N.J.A.C. 4A:3-1.2, the Commission concluded that

            ample reasons exist for the reallocation of
            the proposed titles to the noncompetitive
            division of the career service. It is clear
            that reallocation will provide the AOC with
            the flexibility needed to more efficiently
            and quickly meet hiring responsibilities.
            Certification procedures based on ranked
            eligible lists will not meet the AOC's needs



                                         10                                    A-0056-13T2
         for immediate recruitment. Further, the AOC
         submits sufficient documentation showing the
         success   of   the   pilot   program,   which
         justifies its request to reallocate the
         subject   titles   to    the   noncompetitive
         division of the career service.

This appeal followed.

                             II.

    On appeal, the Association makes the following substantive

arguments:

         POINT II: THE COMMISSION'S RULING APPROVING
         THE PILOT PROGRAM WAS ARBITRARY, CAPRICIOUS,
         AND UNREASONABLE BECAUSE IT ALLOWS THE
         VIOLATION OF THE NEW JERSEY CONSTITUTION AND
         TITLE 4A AND 11A

         POINT III: THE COMMISSION'S RULING APPROVING
         THE PILOT PROGRAM WAS ARBITRARY, CAPRICIOUS,
         AND UNREASONABLE BECAUSE IT ALLOWS THE
         REPLACEMENT OF THE CURRENT TESTING PROCESS
         FOR   PROBATION    OFFICERS   THROUGH   OPEN
         COMPETITIVE PROCESS, WHICH HAS BEEN ENTIRELY
         SUCCESSFUL, WITHOUT PROPER GROUNDS FOR DOING
         SO

         POINT IV: THE COMMISSION'S RULING APPROVING
         THE PILOT PROGRAM WAS ARBITRARY, CAPRICIOUS,
         AND UNREASONABLE BECAUSE IT IGNORES THE FACT
         THAT PRIOR INSTANCES OF NON-COMPETITIVE
         TESTING, SUCH AS SELECTION FOR MENTAL HEALTH
         PROBATION OFFICERS, HAVE RESULTED IN A HIGH
         PERCENTAGE OF SELECTED CANDIDATES WHO WERE
         DISCIPLINED OR TERMINATE[D]

         POINT V: THE COMMISSION'S RULING APPROVING
         THE PILOT PROGRAM WAS ARBITRARY, CAPRICIOUS,
         AND UNREASONABLE BECAUSE THIS MATTER SHOULD
         HAVE BEEN PROPERLY HEARD BEFORE THE OFFICE
         OF ADMINISTRATIVE LAW DUE TO THE SIGNIFICANT
         CONSTITUTIONAL AND STATUTORY VIOLATIONS, AS
         WELL AS TO ENSURE THAT THE COMPETITIVE CIVIL



                              11                         A-0056-13T2
            SERVICE     TESTING     IS    NOT      ABOLISHED    FOR    ALL
            TITLES

      Our scope of review of an administrative agency's final

determination      is   limited.         In   re   Carter,     191    N.J.   474,      482

(2007).     We accord a "strong presumption of reasonableness" to

the     agency's        exercise     of         its     statutorily          delegated

responsibilities.        City of Newark v. Natural Res. Council, 82

N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L.

Ed. 2d 245 (1980).          The burden of showing that the agency's

action was arbitrary, unreasonable, or capricious rests upon the

appellant.     Barone v. Dep't of Human Servs., 210 N.J. Super.

276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

      The 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); see also Circus Liquors, Inc. v. Governing

Body of Middletown Twp., 199 N.J. 1, 9-10 (2009).

      Absent arbitrary, unreasonable, or capricious action, or a

lack of support in the record, "[a]n administrative agency's

final     quasi-judicial     decision         will    be   sustained."            In   re

Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of



                                          12                                  A-0056-13T2
Civil Serv., 39 N.J. 556, 562 (1963)).                       The court "may not

vacate    an   agency     determination      because    of    doubts   as   to    its

wisdom or because the record may support more than one result,"

but is "obliged to give due deference to the view of those

charged    with     the   responsibility      of    implementing       legislative

programs."      In re N.J. Pinelands Comm'n Resolution PC4-00-89,

356 N.J. Super. 363, 372 (App. Div.) (citing Brady v. Bd. of

Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281

(2003).        Nevertheless,     we    may    not   simply      rubber-stamp       an

agency's decision.         In re Taylor, 158 N.J. 644, 657 (1999).

       Although an appellate court is "in no way bound by the

agency's interpretation of a statute or its determination of a

strictly legal issue," Mayflower Sec. Co. v. Bureau of Sec., 64

N.J.     85,   93   (1973),    if     substantial      evidence    supports       the

agency's decision, "a court may not substitute its own judgment

for the agency's even though the court might have reached a

different result," Greenwood v. State Police Training Ctr., 127

N.J. 500, 513 (1992) (citing Clowes v. Terminix Int'l, 109 N.J.

575, 587 (1988)).

       In 1986, the Legislature passed the current Civil Service

Act, repealing Title 11 and establishing Title 11A of the New

Jersey Statutes.          L. 1986, c. 112; Senate Revenue, Finance and

Appropriations Committee, Statement to S. 1567, A. 2194, and S.




                                        13                                  A-0056-13T2
1829, (Sept. 8, 1986).      In doing so, the Legislature made the

following findings and declarations:

         a. It is the public policy of this State to
         select and advance employees on the basis of
         their   relative   knowledge,   skills   and
         abilities;

         b. It is the public policy of this State to
         provide public officials with appropriate
         appointment, supervisory and other personnel
         authority   to    execute   properly   their
         constitutional          and        statutory
         responsibilities;

         c. It is the public policy of this State to
         encourage and reward meritorious performance
         by employees in the public service and to
         retain and separate employees on the basis
         of the adequacy of their performance;

         d. It is the public policy of this State to
         ensure equal employment opportunity at all
         levels of the public service; and

         e. It is the public policy of this State to
         protect   career    public employees   from
         political   coercion   and to  ensure   the
         recognition of such bargaining and other
         rights as are secured pursuant to other
         statutes and the collective negotiations
         law.

         [L. 1986, c. 112, § 11A:1-2.]

Title 11A gives the Commission the power to "[a]dopt and enforce

rules to carry out [the Act] and to effectively implement a

comprehensive   personnel   management   system."   N.J.S.A.    11A:2-

6(d).




                                 14                            A-0056-13T2
       It is important to note for the purposes of this appeal

that any waiver of traditional competitive examinations must, as

a constitutional matter, be based on their impracticality.       In

In re Foglio, 207 N.J. 38, 40 (2011), the Supreme Court observed

that

           [t]he New Jersey Constitution prescribes
           that Civil Service appointments "shall 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, ¶ 2.       The Civil Service Act,
           N.J.S.A.   11A:1-1    to   12.6,   and   the
           regulations promulgated thereunder, N.J.A.C.
           4:4-1.1 to 7.12, in turn, implement those
           merit and fitness principles.

As we explained in Bayonne v. Dougherty, 59 N.J. Super. 288,

295-96 (App. Div. 1960) (citations omitted), appeal dismissed,

34 N.J. 240 (1961),

           [t]he Constitutional Convention of 1947
           merely wrote into the state charter what had
           for years been the keystone of New Jersey's
           personnel system.      The Legislature has
           through the years, by the careful process of
           amendment and supplementation of the Civil
           Service Act, adopted such provisions as
           policy   and   experience   indicated   were
           necessary, all to the end of strengthening
           the merit system.     We will not read the
           cited section of the Constitution to mean
           any more than it says, nor carry the
           legislative   intention   beyond   what   is
           expressly or by clear implication called for
           by the statutes.




                                15                        A-0056-13T2
       N.J.S.A. 11A:3-2 provides that "[t]he career service shall

have    two     divisions,    the     competitive   division    and    the

noncompetitive division."           In establishing the noncompetitive

division, the Legislature made the following findings:

              a.    the    importance    of    fairness   and
              impartiality    in    State     employment   is
              recognized   in   Article    VII,   Section  I,
              paragraph 2 of the New Jersey Constitution
              which   provides   that,    "Appointments   and
              promotions in the civil service of the State
              shall be made according to merit and fitness
              to be ascertained, as far as practicable, by
              examination, which, as far as practicable,
              shall be competitive";

              b.   nevertheless, the framers recognized
              that   appointments  to   certain types of
              employment are not readily made through a
              competitive examination process;

              c.    accordingly,   in    implementing the
              constitutional provision, the Legislature
              has provided in N.J.S. 11A:3-2 that the
              career service shall have a competitive
              division and a noncompetitive division;

              d. it was the purpose of the Legislature,
              in making this distinction, to provide for
              positions which cannot properly be tested
              for, such as lower-level jobs which do not
              require significant education or experience,
              to be filled without the need of competitive
              examination    but   with    civil   service
              protection for the employee;

              e.    however,   recent   published   reports
              suggest    that    the   purpose    of    the
              noncompetitive division has been subverted
              by the transfer into that division of titles
              which properly belong in the unclassified
              service or in the competitive division of




                                      16                         A-0056-13T2
              the career service,                   and     the    making       of
              appointments thereto;

              f. the apparent reason for this misuse of
              the noncompetitive division is to protect
              political appointees prior to the beginning
              of a new administration; and

              g. in order to prevent this abuse of the
              civil service system, there is need for a
              statutory prohibition on the movement of job
              titles and political appointees to the
              noncompetitive   division  of   the   career
              service during the final six months of the
              Governor's term in office.

              [N.J.S.A. 11A:3-2.1 (emphasis added).]

See also Senate State Government Committee, Statement to S. 2234

(Dec. 6, 1993) ("The purpose of the noncompetitive division is

to   enable     the    State      to    fill    lower-level          jobs    which    do     not

require    significant          education        or       training    and    for     which     a

competitive examination cannot easily be designed.").

      We   do    not     hold     that       only     low-level       positions       may    be

assigned to the noncompetitive division, but it is instructive

to note the purpose for which the noncompetitive division was

created and the Legislature's concern that it not be abused.

There may well be positions that require knowledge that is not

readily evaluated through competitive testing.                              See Benson v.

McCaul,    702    N.Y.S.2d        164,       166-67       (App.    Div.     2000)    (finding

competitive      examination           for    Risk     Management         positions     to    be

impracticable         "due   to    the       dynamic      nature     of   the   [financial]




                                               17                                     A-0056-13T2
industry which rendered an examination virtually obsolete before

completion of the competitive process").                   And we can envision

other circumstances, not involving low-level positions, in which

a transfer to the noncompetitive division could be appropriate.

      N.J.S.A. 11A:3-2 authorizes the Commission to "assign and

reassign   such    titles   to    each     division    and    [to]   provide    for

movement, including promotion, of employees from one division to

the   other."      N.J.S.A.      11A:3-1      authorizes     the   Commission    to

"assign and reassign titles among the career service."                          The

Commission's      regulations     outline       the   parameters     of   how     it

exercises that authority.

      N.J.A.C. 4A:3-1.2, the regulation at issue in this case,

provides as follows:

           (a)    The Civil Service Commission shall
           allocate   and   reallocate   career   service
           titles    between    the    competitive    and
           noncompetitive divisions.

           (b)   A career service job title in the
           competitive division is subject to the
           competitive    examination procedures of
           N.J.A.C. 4A:4-2, except as provided in
           N.J.A.C. 4A:3-3.2A.

           (c)   A job title may be placed in the
           noncompetitive division on an ongoing or
           interim basis when it is determined by the
           Civil   Service   Commission that   it  is
           appropriate to make permanent appointments
           to the title and one or more of the
           following criteria are met.




                                         18                               A-0056-13T2
     1.    Competitive     testing  is   not
     practicable due to the nature of the
     knowledge,    skills,    and  abilities
     associated with the job;

     2.   Certification procedures based on
     ranked eligible lists have not or are
     not likely to meet the needs of
     appointing authorities due to such
     factors as salary, geographic location,
     recruitment    problems,  and   working
     conditions; or

     3.   There is a need for immediate
     appointments    arising from a  new
     legislative program or major agency
     reorganization.

(d) All appointees to noncompetitive titles
shall meet the minimum requirements set
forth   in   the    job   specification  and
satisfactorily   complete   a  working  test
period.

(e)   Prior to any reallocation from the
competitive   to   noncompetitive   divisions,
whether on an ongoing or interim basis, an
administrative review shall be conducted and
notice of the proposed reallocation shall be
sent to affected appointing authorities and
negotiations   representatives.   The   notice
shall designate the period of time, which in
no event shall be less than 20 days, during
which written comment may be submitted, and
may provide for a public hearing.

     1. Data, reports, analyses, and other
     information     utilized      in      the
     determination   shall   constitute    the
     administrative record, and shall be
     available   for   review   by    affected
     employees, appointing authorities, and
     negotiations representatives.

     2.   After the comment period and the
     public hearing, if any, the Civil



                     19                          A-0056-13T2
              Service Commission shall issue a final
              administrative    decision   containing
              findings and conclusions with respect
              to the proposed reallocation, based
              upon the administrative record and any
              comment received, and implementation
              procedures.

         (f)   When a job title is reallocated from
         the competitive to noncompetitive divisions,
         the Commission's decision shall specify an
         effective date for reallocation.

              1.   Permanent employees in that title
              as of the effective date shall retain
              their    permanent   status   in   the
              noncompetitive division.

              2.   Probationary employees in that
              title as of the effective date shall
              continue serving their working test
              periods     and,     upon    successful
              completion, attain permanent status in
              the noncompetitive division.

              3. Provisional employees who remain in
              that title as of the effective date
              shall receive regular appointments and
              begin   serving   their   working test
              periods on the effective date.

         (g) If a title is designated noncompetitive
         on an interim basis, at the end of the
         interim noncompetitive period, which shall
         be no greater than one year, the job title
         shall   be   redesignated  as   competitive.
         Individuals appointed during the interim
         noncompetitive period shall, upon successful
         completion of their working test periods,
         attain permanent status in the competitive
         division.

That regulation was adopted in July 1988.    20 N.J.R. 2255(b)

(Sept. 6, 1988).   We note that, in response to concerns about




                              20                        A-0056-13T2
the   nature        of     the         administrative               process      preceding       a

reallocation        from     the        competitive             to     the     noncompetitive

division,     the     agency      responded            that    N.J.A.C.        4A:3-1.2(e)      is

supposed    to      "provide[]         for    a    thorough          administrative       review

process."     20 N.J.R. 2256(b) (Sept. 6, 1988).

      In   reaching        its    decision         in        this    case,     the    Commission

relied on N.J.A.C. 4A:3-1.2(c)(2), which allows transfers to the

noncompetitive division when "[c]ertification procedures based

on ranked eligible lists [would] not or are not likely to meet

the   needs    of    appointing          authorities."                Having     reviewed     the

record before us, we conclude that it contains very few pieces

of objective evidence, such as the "[d]ata, reports, analyses,

and other information" contemplated by N.J.A.C. 4A:3-1.2(e)(1),

demonstrating        that        the     AOC           was    experiencing           significant

recruitment      problems        for    the       Probation          Officer    and   Bilingual

Probation Officer titles at the time it appealed.                               In support of

its application, the AOC cited only one, not overly specific

problem, which was that "at least four vicinages [had] exhausted

[their]     current      pool      and        several         others        [were]    close    to

exhausting       their     pools       for     the       Probation          Officer    Bilingual

title."       The    record      does        not       contain       more    specific    factual

information concerning the parameters of that problem, such as

how   often    it    occurs       and    whether             court    operations       had    been




                                                  21                                    A-0056-13T2
adversely affected.        In addition, a shortage in the pool for the

Bilingual Probation Officers would not, by itself, necessitate a

reallocation       of     the        Probation         Officer        title        to    the

noncompetitive      division,         even      if     it    were     to     justify     the

reallocation of Bilingual Probation Officers.

       The   Commission's       decision      quotes        the    Division's       comment

that there were "no eligible lists for the subject titles" at

the time the decision to make the program permanent was made.

It is silent, however, as to whether the lack of lists was

related to an operational problem at the Commission, or merely

the cessation of developing such lists while the pilot program

was   taking     place   and    in    anticipation          that    it     would   be   made

permanent.        Certainly,         the   AOC       was    able    to     identify     many

candidates for the positions during the pilot project.                             We find

it    unlikely    that   the    competitive          process       suddenly    failed      to

produce eligible lists, inasmuch as the AOC has been relying on

it for more than fifty years.                The fact that the Commission was

simply not ready to resume the usual procedure at the end of the

pilot program is not an acceptable reason for making the program

permanent.

       The Commission points to the fact that the reallocation

"[would] provide the AOC with the flexibility needed to more

efficiently and quickly meet hiring responsibilities."                             However,




                                           22                                      A-0056-13T2
the need for flexibility in hiring is not listed as one of the

circumstances that would permit the Commission to place a job

title in the noncompetitive division.               N.J.A.C. 4A:3-1.2(c)(1)

to -(3).     Instead, N.J.A.C. 4A:3-1.2 allows for limited, interim

noncompetitive     appointments    in    the   event    that    there     is   an

immediate need for additional personnel.

      The Association argues that the Commission should have held

a hearing.      N.J.S.A. 11A:3-6 only requires the Commission to

hold a public hearing prior to transferring a title from the

career   service   to   the   unclassified     service.        N.J.A.C.    4A:3-

1.2(e), however, vests the Commission with the discretion to

conduct a public hearing "[p]rior to any reallocation from the

competitive to noncompetitive divisions."              Because it does not

mandate such a hearing, we cannot conclude that one is required.

Nevertheless, in a fact-sensitive case such as this one appears

to be, the Commission should seriously consider a transfer to

the OAL for a hearing.          See Commc'ns Workers of Am. v. N.J.

Dep't of Pers., 154 N.J. 121, 131-32 (1998).

      Finally, we return to the constitutional dimension of this

case, which governs its outcome over and above the statutory and

regulatory     requirements      discussed      above.          Because        our

Constitution requires that public service appointments be made

by   competitive   examination    "as    far   as    practicable,"      Foglio,




                                    23                                  A-0056-13T2
supra, 207 N.J. at 40, consideration must be given to whether

the AOC has demonstrated that it is impracticable for it to

continue     filling       Probation        Officer   and   Bilingual       Probation

Officer positions through open, competitive examinations.                             That

is a question that must be considered separately as to each

title.      That the noncompetitive process is more flexible does

not,   in   our    view,    mean     that    the   competitive        process   is    not

practicable        within     the       meaning       of    the         constitutional

requirement.        We see nothing in the Commission's decision to

suggest that it considered the constitutional issue, which was

raised by the Association in its opposition.

       Because     the    factual     record       underlying     the    Commission's

decision     is    overly      sparse,        we    conclude      that     there      are

insufficient facts to support the decision to grant the transfer

of the Probation Officer and Bilingual Probation Officer titles

to    the   noncompetitive         division,       rendering     it     arbitrary     and

capricious.       In addition, and more importantly, the Commission's

failure     even     to     consider        the    issue    of    whether        it    is

impracticable for the AOC to continue filling Probation Officer

and    Bilingual         Probation     Officer        positions       through      open,

competitive examinations renders the decision legally defective.

       Consequently, we reverse the order on appeal and remand for

further consideration by the Commission, consistent with this




                                             24                                 A-0056-13T2
opinion.      The   Commission's      reconsideration     must   include    the

development    of   the   type   of    factual   record    required     for    a

meaningful evaluation of the AOC's proposal under the applicable

statutory and regulatory provisions and, again most importantly,

the provisions of article VII, section 1, paragraph 2 of the New

Jersey Constitution.

    Reversed and remanded.




                                       25                             A-0056-13T2
