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O''Malley v. Department of Energy

Decided: November 2, 1987.


On certification to the Superior Court, Appellate Division, whose opinion is reported as 212 N.J. Super. 114 (1986).

For reversal and reinstatement -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Pollock, J.


[109 NJ Page 310] The issue on this appeal is whether the former Department of Energy (the Department) may be equitably estopped from returning respondent, Dennis O'Malley, from his provisional appointment as supervising energy specialist to his permanent position as senior engineer when a promotional examination was not given between the date of his provisional appointment and the date of the demotion. The former Department of Civil Service (Civil Service), which has been replaced by the Department of Personnel, N.J.S.A. 11A:11-2, ruled that O'Malley was not entitled to a hearing on the demotion. The Appellate Division reversed and remanded the matter to Civil Service and the Department, which has since been merged into the Departments of Commerce and Economic Development, the Department of Community Affairs, and the Department of Environmental Protection. N.J.S.A. 52:27F-1. In reversing, the Appellate Division stated that O'Malley "may not be dislodged from his provisional appointment without being afforded the opportunity to qualify as a permanent appointee in the position." 212 N.J. Super. 114, 123 (1986). We granted certification, 107 N.J. 34

(1986), and now reverse the judgment of the Appellate Division.


In November 1975, O'Malley was hired by the Department as a provisional employee with the title of senior engineer. Three years later, after taking a Civil Service examination, he received a permanent appointment to that position. In 1979, O'Malley was provisionally appointed as administrator, Office of Alternative Engineering Techniques and Waste Recovery, and in 1981, he accepted another provisional appointment, this time as a supervising energy specialist. No competitive examination was given for either position. O'Malley asserts that during 1981 he applied to take Civil Service examinations to qualify for a permanent appointment as an energy specialist. In June 1981, Civil Service advised him that a permanent supervisory appointment as supervising energy specialist would be made "in accordance with civil service rules when the resulting list from the examination [was published]." He unsuccessfully applied to Civil Service to take examinations for other positions, and in 1984, he was notified that he was being returned to his former position as senior engineer with a salary reduction of approximately $6,000 per year. No one has replaced him as a supervising energy specialist in the Department.

Although O'Malley claims his demotion was in response to a grievance he filed when he was denied leave for National Guard duty, the Appellate Division found no evidence of malice on the part of Civil Service in removing him from his provisional appointment. Our review of the record leads us to the same conclusion.

After receiving notification of his removal, O'Malley appealed to Civil Service, which ruled that because he had not been permanently appointed as a supervising energy specialist, he was not entitled to a hearing before the commission. O'Malley

appealed to the Appellate Division asserting not that Civil Service improperly denied him a hearing, but that the Department should be estopped from returning him to his former position.

In its decision, the Appellate Division focused on the section of the Civil Service statute that provides for provisional appointments:

Pending the establishment of a re-employment or employment list, the chief examiner and secretary, with the approval of the commission, may, if necessary to prevent the stoppage of public business or inconvenience to the public, but not otherwise, authorize the filling of the vacant position mentioned in section 11:10-1 of this title at once, by provisional appointment. Such appointment shall continue only pending the establishment of a re-employment or employment list and in no case for a period exceeding a total of four months. No person shall receive more than one provisional appointment or serve more than four months as a provisional appointee in any fiscal year.

No person not possessing the minimum required qualifications for any position, as determined by the preliminary test or inquiry prior to beginning work as the chief examiner and secretary may prescribe, shall ...

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