On appeal from a final decision of the Department of Civil Service, Division of Appellate Practices and Labor Relations.
Fritz, Gaynor and Baime. The opinion of the court was delivered by Gaynor, J.A.D.
[212 NJSuper Page 117] Once again we are called upon to consider the failure of the Department of Civil Service to comply with the limitation contained in N.J.S.A. 11:10-3 on the length of time for which a provisional employee may be employed, the effect of such inaction on those who accept provisional appointment with the legitimate expectation of qualifying for permanent status and
the appropriate corrective measure to be pursued. See Handabaka v. Division of Consumer Affairs, 167 N.J. Super. 12 (App.Div.1979); Omrod v. New Jersey Dept. of Civ. Serv., 151 N.J. Super. 54 (App.Div.1977).*fn1
On November 8, 1975 appellant began employment with the New Jersey Department of Energy as a senior engineer, utilities. This was a provisional appointment pending an examination which was held about a year later. After taking the examination, appellant was certified as eligible for permanent status and in August 1978 began a probationary period of employment which became permanent in December 1978. In February 1981, he was given a provisional appointment to the position of supervising energy specialist and was advised by letter from the chief personnel officer of the Department of Energy "that permanent appointments will be made in accordance with Civil Service rules when the resulting list from the examination is published." No notice pertaining to such an examination was received by appellant until January 1985 when it was announced that the examination was canceled. During his performance as supervising energy specialist, appellant received satisfactory certifications from his superior including recommendations in 1982 and 1984 for salary increases. On December 17, 1984 appellant received official notification from the chief personnel officer that he was being returned to his former permanent title of senior engineer, utility with a corresponding annual salary reduction of approximately $6,000. Upon receipt of this notice, appellant filed a grievance and an appeal with the Department of Civil Service, Division of Appellate Practices and Labor Relations. The response from the Department was that as "Mr. O'Malley did not have permanent status in the title of Supervising Energy Specialist . . . he does
not have an entitlement to a hearing before the Civil Service Commission." This appeal followed.*fn2
Appellant now seeks reinstatement to his previous provisional status pending an examination for that position, with a retroactive salary adjustment from the date of his demotion. He contends that, under the circumstances, the Department of Energy is equitably estopped from demoting him because of the failure of the Department of Civil Service to have scheduled an examination for the position of supervising energy specialist during the years that he provisionally occupied this position, as contemplated by N.J.S.A. 11:10-3 and as indicated by the Department's representative at the time of his provisional appointment.
In challenging his demotion, appellant relies upon the view we expressed in Omrod that the extended failure to conduct a competitive examination may estop the removal of a provisional appointee to a classified position who occupied the position satisfactorily for a lengthy period of time. See 151 N.J. Super. at 58-60. He also finds support in our observation in Handabaka that
the four month limitation on the life of a provisional employee is the law. Government itself should be particularly assiduous in its observance. Moreover, where its violation works an injustice on a particular applicant for permanent appointment . . . prompt corrective measures should be taken. [167 N.J. Super. at 15.]
Respondents dismiss the suggestion in Omrod as dicta and point out that in two unreported decisions we have declined to follow the estoppel theory espoused in Omrod.*fn3 Furthermore, it is asserted the elements of representation and detrimental reliance are not present thereby rendering the equitable estoppel doctrine inapplicable. Additionally, respondents contend
that, as a provisional appointee, appellant was unprotected by the Civil Service Act and thus was subject to being terminated at any time without cause and without a hearing. N.J.A.C. 4:1-16.8(b). In this respect, they liken his status to that of an at-will employee. See ...