                     NOT FOR PUBLICATION WITHOUT THE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




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-3118-16T3


IN THE MATTER OF TIMOTHY HART,
CITY OF NEWARK
______________________________

           Submitted August 7, 2018 - Decided August 10, 2018

           Before Judges Mayer and Mawla.

           On appeal from the New Jersey Civil Service
           Commission, Docket No. 2015-3056.

           William W. Hart, Jr., attorney for appellant.

           John J. Zidziunas & Associates, attorneys for
           respondent City of Newark (John J. Zidziunas
           and Mayra S. Pais, on the brief).

           Gurbir S. Grewal, Attorney General, attorney
           for respondent Civil Service Commission
           (George N. Cohen, Deputy Attorney General, on
           the statement in lieu of brief).

PER CURIAM

     Appellant Timothy Hart appeals from a February 14, 2017

decision of the Civil Service Commission (Commission) denying

reconsideration of the Commission's final decision dated April 1,
2015.1   In its April 1, 2015 decision, the Commission ordered

appellant's layoff as a police officer with the City of Newark

(Newark) be rescinded and his record corrected to reflect that

appellant resigned, effective June 30, 2011.   We affirm.

     Appellant sought back pay and counsel fees arising from his

erroneous layoff as a Newark police officer. By way of background,

appellant received the requisite forty-five days' notice from

Newark, advising that he would be laid off from his position as a

Newark police officer, effective November 2010.

     Appellant appealed his layoff to the Commission, arguing he

possessed more seniority than other Newark police officers who

were not laid off.       According to appellant, when the layoff

announcement was issued, he should have been the first eligible

to be reinstated based on his seniority ranking on the original

eligible list, S9999F.    However, two other individuals with less

seniority than appellant were reinstated as Newark police officers

in December, 2010.     Appellant maintained that removing him from

the original eligible list, S9999F, was prima facie evidence of

bad faith by Newark.




1
   The Commission's April 1, 2015 final decision was incorporated
in   the  Commission's   denial  of   appellant's  petition   for
reconsideration.


                                 2                          A-3118-16T3
     Appellant was appointed as a Newark police officer, effective

December    26,     2007,   from   an   August    7,    2007   certification.

Individuals appointed from that certification possessed equal

seniority in accordance with N.J.A.C. 4A:8-2.4.                  To break a

seniority     tie      in    determining       layoff    rights,     N.J.A.C.

4A:8-2.4(h)(6) provides "[t]he employee who ranked higher on the

same eligible list for the title shall have priority."                Because

Newark combined two eligible lists, S9999F and S9999H, appellant's

name was improperly ranked at 9528 instead of being the first

eligible on the certification.              If appellant had been properly

ranked, any tie would have been broken in appellant's favor and

he would have avoided being laid off.

     Due to the error in combining the two eligible lists, the

Commission found the normal "remedy is to reinstate the individual

improperly laid off, after an updated background check, and to

correct his or her record to reflect that he or she had not been

laid off . . . ."     However, in this case, appellant took a position

as a police officer with the City of Elizabeth, effective July 1,

2011, and stated that he was not interested in returning to Newark.

Therefore, the only remedy available to appellant was to correct

his employment record to reflect that he was not laid off on

November 30, 2010, but resigned in good standing, effective June

30, 2011.

                                        3                             A-3118-16T3
     Appellant   claimed   the   Commission's   decision   was   not   the

appropriate remedy since the offer failed to restore him to his

former position and salary.      In addition, appellant claimed he was

entitled to back pay and counsel fees.

     In response to appellant's request for back pay and counsel

fees, the Commission determined

           pursuant to N.J.A.C. 4A:2-1.5(b), in all
           appeals other than disciplinary and good faith
           layoff appeals, back pay and counsel fees may
           be granted as a remedy where an appointing
           authority has unreasonably failed or delayed
           to carry out an order of the Commission or
           where the Commission finds sufficient cause
           based on the particular case. A finding of
           sufficient cause may be made where the
           employee demonstrates that the appointing
           authority took adverse action against the
           employee in bad faith or with invidious
           motivation.

     The Commission found appellant did not file a good faith

appeal.2   Had appellant filed such an appeal, and established

Newark acted in bad faith, the remedy would have been to award

back pay and counsel fees.        The Commission concluded appellant

filed a determination of rights appeal.


2
  Under the Civil Service regulations, there are two types of
layoff appeals: (1) good faith appeals, "based on a claim that the
appointing authority laid off . . . the employee . . . for reasons
other than economy, efficiency, or other related reasons,"
N.J.A.C. 4A:8-2.6(a)(1); and (2) determination of rights appeals,
"based on a claim that an employee's layoff rights or seniority
were determined and/or applied incorrectly," N.J.A.C. 4A:8-
2.6(a)(2).

                                    4                            A-3118-16T3
       The Commission determined appellant's title rights/seniority

in effecting his layoff.            Newark relied on the Commission's

determination of appellant's seniority in selecting officers to

be laid off.        Therefore, because it relied on the Commission's

establishment of seniority, Newark did not act in bad faith or

with    invidious    motivation.     Consequently, the Commission     held

appellant failed to establish entitlement to back pay or counsel

fees.

       Appellant sought reconsideration of the Commission's April

1, 2015 decision, reiterating his previous arguments. In addition,

appellant claimed he filed a good faith appeal and the matter

should have been referred to the Office of Administrative Law

(OAL) for a hearing.          According to appellant, the proper remedy

was an award of back pay, less any amounts earned, until his

current salary equaled to his former salary as a Newark police

officer.

       In   rendering     a     determination   on   the   petition    for

reconsideration, the Commission held that appellant failed to show

any material error or new evidence or information not presented

in the original review that would change the outcome of the case.

The Commission concluded that appellant was not entitled to a

hearing before the OAL because he did not file a good faith appeal.

When a local government decides to lay off employees, there is a

                                      5                          A-3118-16T3
presumption of good faith, and the burden is on the employee to

show bad faith and that the action was not based on fiscal

considerations.     Greco v. Smith, 40 N.J. Super. 182, 189 (App.

Div. 1956).

     In this case, the Commission determined appellant's challenge

was a determination of rights appeal as he argued his "layoff

rights or seniority were determined and/or applied incorrectly."

N.J.A.C. 4A:8-2.6(a)(2).      If appellant had pursued a good faith

appeal, then he would have been entitled to an OAL hearing.

However, a determination of rights appeal is based on the written

record without a hearing.       See N.J.A.C. 4A:8-2.6(a)(2) (citing

N.J.A.C. 4A:2-1.1(d)).

     Appellant appeals from the Commission's determinations dated

April   1,   2015   and   February   14,   2017.   Appellant    contends

respondents failed to address his bad faith allegations and a

hearing should have been conducted by the OAL.       Appellant further

argues the Commission's decision improperly terminated his rights

and deprived him of back pay and seniority within the Newark police

department.

    "Courts provide the widest possible interpretation of the

[Civil Service] Act as it was designed to procure efficient public

service and to maintain stability and continuity in ordinary public

employment."    In re Johnson, 215 N.J. 366, 377 (2013).       "In order

                                     6                           A-3118-16T3
to reverse an agency's judgment, an appellate court must find the

agency's decision to be 'arbitrary, capricious, or unreasonable,

or [] not supported by substantial credible evidence in the record

as   a    whole."      In   re    Stallworth,     208   N.J.    182,   194    (2011)

(alteration in original) (quoting Henry v. Rahway State Prison,

81 N.J. 571, 579-580 (1980)).

         Our review is generally limited to determining:

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

              [In re Carter, 191 N.J. 474, 482-83 (2007)
              (quoting Mazza v. Bd. of Trs., 143 N.J. 22,
              25 (1995)).]

         We conclude that there was nothing arbitrary, capricious, or

unreasonable in the Commission's disposition of appellant's claim.

Appellant's appeal was for a determination of rights based on

seniority.          Appellant's    notice    of   appeal   to    the   Commission

indicated he was appealing "wrongful layoff . . . based upon

seniority and date of certification for appointment."

         Even if appellant's claim was a good faith appeal, alleging

bad faith on the part of Newark, his arguments fail for two


                                         7                                   A-3118-16T3
reasons.   First, appellant failed to present any evidence that

Newark's action in laying off police officers was for reasons

other than economies and efficiencies.   N.J.A.C. 4A:8-2.6(2)(1).

Appellant failed to show he was selected, targeted, or treated

unfairly as compared to his 167 fellow officers who were similarly

laid off. Second, the Commission, not Newark, determined seniority

ranking on the eligible lists for police officer appointments.

Thus, appellant is unable to demonstrate any animus or improper

motivation by Newark regarding his layoff determination.

     Based on our review of the record, the Commission's decision

is supported by substantial credible evidence based on the written

records submitted.

     Affirmed.




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