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                           APPROVAL OF THE APPELLATE DIVISION
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-5095-16T3

IN THE MATTER OF COUNTY
CORRECTION CAPTAIN
(PC1189P) AND COUNTY
CORRECTION LIEUTENANT
(PC1202P), HUDSON COUNTY.
_______________________________

                Submitted January 28, 2019 – Decided February 21, 2019

                Before Judges Messano and Fasciale.

                On appeal from the New Jersey Civil Service
                Commission, Docket No. 2017-2783.

                Maria Gaines, Luis Oyola, and Robert Kalb Jr.,
                appellants pro se.

                Scarinci & Hollenbeck, LLC, attorneys for respondent
                County of Hudson (Sean D. Dias, on the statement in
                lieu of brief).

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

PER CURIAM
      Maria Gaines, Luis Oyola, and Robert Kalb (collectively appellants), who

are now retired, appeal from a June 12, 2017 final decision entered on remand

by the Civil Service Commission (the Commission). They argue primarily that

the Commission's decision is arbitrary because it failed to retroactively appoint

them to higher titles and award them corresponding back pay. We disagree,

conclude there exists sufficient credible evidence in the record to support the

decision, and affirm.

      The County of Hudson (County) previously employed appellants. Oyola,

who retired as a Lieutenant, wanted a promotion to County Correction Captain

(Captain). Gaines and Kalb, who retired as Sergeants, wanted promotions to

County Correction Lieutenant (Lieutenant).      Appellants never received the

promotions.

      Before the remand, appellants challenged the eligibility requirements of

individuals who sat for the Captain and Lieutenant promotional examinations.

The County had rejected that challenge, and promoted three of eight individuals

on the list to Captain, and seven of twenty-four individuals on the list to

Lieutenant. The Commission upheld the promotions. Appellants appealed from

the Commission's upholding of the promotions arguing that the Commission

allowed individuals to sit for the examination, in violation of N.J.A.C. 4A:4-


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                                       2
2.6(a)(1) (indicating that applicants for promotional examinations must have

"one year of continuous permanent service").

      In part, we reversed for failure to comply with the principles underlying

the proper administration of working test periods. In the Matter of County

Correction Captain (PC1189P) and County Correction Lieutenant (PC1202P),

Hudson County, No. A-2162-14 (App. Div. Mar. 9, 2017) (slip op. at 9-10).

N.J.A.C. 4A:1-1.3 defines a working test period as "a part of the examination

process after regular appointment, during which time the work performance and

conduct of the employee is evaluated to determine if permanent status is

merited." The legislature has defined the purpose of the working test period to

give an appointing authority an opportunity "to determine whether an employee

satisfactorily performs the duties of a title." N.J.S.A. 11A:4-15. In our prior

opinion, we stated that there was

            no evidence [that] indicated the County observed and
            evaluated the Applicants [who took the exams] during
            a working test period, prepared progress reports, or
            determined they satisfactorily performed the duties of
            their respective titles and successfully completed a
            working test period. Absent evidence that Applicants
            actually and successfully completed a working test
            period, the Commission could not presume they had
            done so.




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                                      3
            [In the Matter of County Correction Captain (PC1189P)
            and County Correction Lieutenant (PC1202P), Hudson
            County, slip op. at 10.]

In the prior appeal, we granted appellants' request for removal of various

applicants from the promotional lists. In so doing, we did not mandate that the

County appoint or promote appellants. Instead, we stated that – due to the

passage of time – "further measures may be necessary which should be

addressed in the first instance [by] the Commission." Id. at 18.

      On remand, the Commission followed our instructions and removed the

names of various applicants from the lists of individuals who were eligible to

take the exams. And it reinstated the original titles for those who received

promotions. Under N.J.A.C. 4A:4-2.6(a)(2), the Commission then amended the

announcements for the promotions and extended the deadline for filing

applications, to allow proper testing for eligible candidates.

      Appellants contend that their ranked positions on the eligible lists would

have guaranteed their promotions on remand.            They say that once the

Commission removed the improperly promoted applicants from the eligible

lists, Oyola would have moved up on the Captains List from the fifth spot to the

second spot. And they assert that, on the Lieutenants list, Kalb would have

moved up from the seventh spot to the second spot, and Gaines would have


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                                        4
moved from the tenth spot to the fifth spot. But, crucially, appellants had retired

after the other applicants were already promoted.

      Thus, the Commission noted, as to appellants, that they were required to

"successfully complete a working test period" before they could be promoted to

a higher title. Like us, the Commission was unwilling to assume that appellants

would previously have successfully completed their respective working test

periods.   That is so because the County did not "observe or evaluate [the

appellants] as evidenced by [any] progress reports." The Commission therefore

was unwilling to retroactively promote them.

      On appeal, appellants raise the following arguments:

            POINT I
            THE     COMMIS[S]ION[']S DECISION  WAS
            ARBITRARY,         CAPRICIOUS      AND
            UNREASONABLE. ALL IMPACTED CANDIDATES
            WERE NOT A PART OF THE PROCEEDINGS[.]

            POINT II
            THE    CURRENT     CANDIDATES   ON   THE
            ELIGIBILITY LIST[S] WERE NOT REPRESENTED
            IN THIS MATTER[.]

            POINT III
            THE CIVIL SERVICE DECISION IS NARROWLY
            TAILORED TO ADVANCE THE APPOINTING
            AUTHORITIES AGENDA AND BARS THE
            APPELLANTS FROM RECOVERY[.]



                                                                           A-5095-16T3
                                        5
            POINT IV
            APPEL[L]ANTS['] PROMOTIONS WERE NOT A
            POSSIBILITY BUT A CERTAINTY AS HUDSON
            COUNTY PROMOTES IN ORDER FROM THE
            LIST[S] – BUT FOR THE ACTIONS OF HUDSON
            COUNTY AND CIVIL SERVICE APPELLANTS
            WOULD HAVE BEEN PROMOTED[.]

            POINT V
            HUDSON      COUNTY'S OFFER TO MAKE
            APPELLANTS WHOLE SHOULD HAVE BEEN
            INCORPORATED INTO THE CIVIL SERVICE
            DECISION[.]

            POINT VI
            THE    APPELLATE    DIVISION    DECISION
            RESULTED    IN  NO   MORE     THAN    AN
            INCONVENIENCE    TO   THE    INELIG[IB]LE
            CANDIDATES BUT CAUSED [IRREPARABLE]
            HARM TO THE APPELLANTS[.]

            POINT VII
            HUDSON COUNTY'S PROMOTIONAL PRACTICES
            ARE INDICATIVE OF ITS WILLINGNESS TO
            BEND, BREAK, STRETCH AND CHALLENGE THE
            RULES WHEN IT SUITS [ITS] NEEDS[.]

            POINT VIII
            [APPELLANTS] ARE LEGALLY ENTITLED TO
            THE PROMOTIONS UNDER IN RE SNELLBAKER
            . . . AND HUDSON COUNTY HAD A LEGAL
            OBLIGATION TO PROMOTE[.]

      Our review of a Commission's determination is limited. In re Stallworth,

208 N.J. 182, 194 (2011); see also Wnuck v. N.J. Div. of Motor Vehicles, 337

N.J. Super. 52, 56 (App. Div. 2001) (indicating that "[i]t is settled that [a]n

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                                      6
administrative agency's interpretation of statutes and regulations within its

implementing and enforcing responsibility is ordinarily entitled to . . .

deference") (second alteration in original) (citations and internal quotation

marks omitted). 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).            We "defer to an agency's

interpretation of . . . [a] regulation, within the sphere of [its] authority, unless

the interpretation is plainly unreasonable," but are "in no way bound by the

agency's interpretation of a statute or its determination of a strictly legal issue."

US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012) (citations and internal

quotation marks omitted). This is because "a state agency brings experience and

specialized knowledge to its task of administering and regulating a legislative

enactment within its field of expertise." Ibid.

      To reverse the decision, we must find an agency's decision to be "arbitrary,

capricious, or unreasonable, or [] not supported by substantial credible evidence

in the record as a whole." Stallworth, 208 N.J. at 194 (alteration in original)

(quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). In making

such a determination, we must examine:

             (1) whether the agency's action violates express or
             implied legislative policies, that is, did the agency

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                                         7
            follow the law; (2) whether the record contains
            substantial evidence to support the findings on which
            the agency based its action; and (3) whether in applying
            the legislative policies to the facts, the agency clearly
            erred in reaching a conclusion that could not reasonably
            have been made on a showing of the relevant factors.

            [Ibid.]

      Appellants are not entitled to retroactive appointment and back pay.

N.J.A.C. 4A:4-1.10(c) governs the approval of appointments by the Commission

and grants the Commission delineated authority to "order a retroactive

appointment date due to administrative error, administrative delay, or other good

cause[.]" This is a very limited remedy that is only permitted for administrative

purposes or for "good cause." The Commission has consistently enforced the

administrative   code's    requirements,    except    in   extraordinarily    rare

circumstances. "Although the Commission's interpretation is not necessarily

controlling, . . . [w]here the Commission's interpretations [of the administrative

code] have continued over a period of years without legislative interference they

have been given great weight as evidence of the Legislature's intent" behind the

law and regulations. Makowitz v. State, Dep't of Civil Serv., 177 N.J. Super.

61, 65 (App. Div. 1980) (citations omitted). Here, there were no administrative

errors or delays, and appellants have failed to show good cause. There is no

evidence establishing that appellants completed working test periods, as

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                                        8
required by the Commission's regulations.        Thus, under the circumstances

presented in this appeal, it would be extraordinarily rare for the Commission to

depart from its own regulations, which have implemented the statutory

framework.

      In our prior opinion, we addressed the importance of the working test

period by stating:

                   A working test period "furthers the [Civil
             Service] Act's purpose 'to fill government positions
             upon a basis of merit and fitness to serve' by creating a
             probationary period of service during which time the
             appointing authority can observe and evaluate the
             appointee." Commc'ns Workers, AFL–CIO v. N.J.
             Dep't of Pers., 154 N.J. 121, 130 (1998) (citation
             omitted). "[T]he actual completion of a working test
             period is ordinarily a basic condition of permanent
             employment." Cipriano v. Dep't of Civil Serv., 151
             N.J. Super. 86, 90 (App. Div. 1977). "Neither the
             appointing authority nor the Civil Service Commission
             ha[s] any authority to ratify the improper performance
             of the working test period." Id. at 91 (finding
             inadequate a "sham paper transfer to make it appear that
             Cipriano had actually complied with the working test
             period").

             [In the Matter of County Correction Captain (PC1189P)
             and County Correction Lieutenant (PC1202P), Hudson
             County, slip op. at 10 (alterations in original).]

There is no evidence that appellants served successful working test periods. And

even assuming appellants were entitled to placement of their names on the


                                                                         A-5095-16T3
                                        9
promotion lists on remand, they have retired from their respective positions at

the County. Thus, they are unable to serve the working test period for the

appointment to Captain or Lieutenant.       The Commission may not presume

appellants would have successfully completed working test periods for their

respective titles; and there is no credible evidence in this record that the County

observed or evaluated appellants, such as progress reports or other

documentation demonstrating appellants' performance of job duties.             The

Commission cannot disregard the working test period requirements.

      Moreover, the Commission's regulations do not guarantee appellants

promotional appointments. N.J.A.C. 4A:5-2.2(d) states that, "[w]hen a single

vacancy is to be filled from a promotional certification headed by a nonveteran,

any reachable eligible may be appointed in accordance with the 'rule of three.'

See N.J.S.A. 11A:4-8." N.J.S.A. 11A:4-8, which sets forth the "rule of three,"

states:

            The [C]ommission shall certify the three eligibles who
            have received the highest ranking on an open
            competitive or promotional list against the first
            provisional or vacancy. For each additional provisional
            or vacancy against whom a certification is issued at that
            time, the commission shall certify the next ranked
            eligible. If more than one eligible has the same score,
            the tie shall not be broken and they shall have the same
            rank. If three or more eligibles can be certified as the


                                                                           A-5095-16T3
                                       10
            result of the ranking without resorting to all three
            highest scores, only those eligibles shall be so certified.

As we have stated,

            a person who successfully passes an examination and is
            placed on an eligible list does not thereby gain a vested
            right to appointment. The only benefit inuring to such
            a person is that so long as that list remains in force, no
            appointment can be made except from that list.

            [In re Crowley, 193 N.J. Super. 197, 210 (App. Div.
            1984).]

      Thus, appellants do not have a vested right of an appointment from the

eligible lists for these promotions. In Nunan v. New Jersey Department of

Personnel, 244 N.J. Super. 494, 495-96 (App. Div. 1990), the appellant claimed

that he was entitled to immediate appointment to the position of Atlantic City

police officer with back pay because he should have been entitled to a resident's

preference for appointment.       The appellant claimed that his name was

"improperly removed from the eligible list," and therefore he was "entitled to a

mandated appointment and back pay." Id. at 497. Before he was removed from

the list, the appellant ranked sixteenth, and because appointments were later

made from that list, we stated that "one can reasonably assume that at some point

[the] appellant would have been one of the three highest scoring individuals."

Ibid. But we concluded that, "[v]iewing the facts and law most favorably to


                                                                          A-5095-16T3
                                       11
appellant, the best that can be said is that he had a right to be considered for

appointment. He did not, and does not, have a legitimate claim of entitlement

to the position . . . ." Id. at 497-98. As to appellants, they could have been

entitled to restoration on the eligible lists, but their retirement made that

impossible.

      Appellants argue that the County was "amenable to retroactively

promoting those eligible individuals, who were on the promotional list for

lieutenants and captains, and retroactively paying them their lost pay for the

period commencing on November 28, 2015 . . . ."1 Even if that were the case,

the Commission's regulations mandate satisfactory completion of the working

test period for permanent appointment to a title. N.J.S.A. 11A:4-15; N.J.A.C.

4A:1-1.3.     Thus, even if the County was willing to retroactively promote

appellants and give them back pay, the law prevented the Commission from

doing so.

      We conclude that appellants' remaining arguments are without sufficient

merit to warrant further discussion in this opinion.        R. 2:11-3(e)(1)(E).

Nevertheless, we add these brief remarks.


1
  The County did not participate in the prior appeal. On this appeal, the County
concedes that the examination process for promotions rests exclusively with the
Commission.
                                                                        A-5095-16T3
                                      12
      Appellants cite to County employees who have received promotions while

holding the official Civil Service title of "confidential aid." Because of this,

they claim that their titles could be "switch[ed] . . . to the unclassified title of

'confidential aid'" or that the County could "acknowledg[e] that [a]ppellants

were legally entitled to the promotions by contract." Appellants were not legally

entitled to promotions and the existence of other County employees who held

positions that did not mandate working test periods or year in grade requirements

is not dispositive.

      Finally, there is no basis whatsoever for appellants' contention that the

Commission's decision is "narrowly tailored to protect the disqualified

candidates and to bar . . . [a]ppellants from recovery." Appellants list seven

points as to how the decision was contrary to our 2017 ruling. These contentions

are not supported by the law, and do not mean that the decision was not narrowly

tailored.

      Affirmed.




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                                        13
