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In re Sheriff''s Officer and Sheriff''s Officer Sergeant

Decided: June 16, 1988.

IN THE MATTER OF SHERIFF'S OFFICER (PC2209J) AND SHERIFF'S OFFICER SERGEANT (PC2215J), GLOUCESTER COUNTY


On appeal from a final decision of the New Jersey Merit System Board.

Michels and Gaynor. The opinion of the court was delivered by Gaynor, J.A.D.

Gaynor

In this appeal, Gloucester County Fraternal Order of Police, Lodge No. 97 (Fraternal Order) challenges the decision of the Merit System Board (Board) confirming the actions of the Department of Personnel (Department) in permitting the assignment of three correction officers to sheriff officer's duties under provisional status and in opening the sheriff's officer sergeant promotional examination to correction officers and correction officer sergeants. It is contended that this action of the Board violated the rulemaking provisions of the Administrative Procedure Act (A.P.A.), N.J.S.A. 52:14B-2, as well as the notice and hearing provisions of that act. We disagree and affirm.

Classification audits, requested by the Fraternal Order, of the duties being performed by certain Gloucester County correction officers and correction sergeants disclosed that two officers, Eric Prouze and Andre Lewis Bay, Jr., and one sergeant, John Robinson, were improperly assigned by the sheriff

to perform sheriff officer and sheriff officer sergeant duties in the Identification Bureau of the Sheriff's Department. Thereafter, the positions were reclassified as sheriff officer and sheriff officer sergeant positions so that the actual duties performed corresponded to the civil service designation. Under the standard procedures of the Department, the titles "sheriff's officer" and "county correction officer" are entry level positions, with individuals in each line having promotional opportunities to become sheriff's officer sergeant or correction officer sergeant, respectively. Movement from a correction officer title to a sheriff's officer title is also a promotion because of the multiple duties involved. In view of the change in the status of their titles, the three correction employees were designated as serving provisionally pending promotional examinations for the sheriff officer's positions.

The Department issued an order which memorialized the arrangement between it and the sheriff as to the reclassification, noting, with respect to the sheriff's officer sergeant examination, that the promotional procedure would be conducted on a one-time-only basis with the examination open to county correction sergeants, sheriff's officers and county correction officers with three years of permanent status. Additionally, a sheriff's officer promotional examination was announced and opened to all county correction officers with one year of permanent status.

According to the Department's operating procedure, county correction officers may compete for the entry level title of sheriff's officer. However, the Department has not established procedure for the promotion of county correction sergeants to sheriff's officer sergeants. The sergeant's examination was opened to the three title groups in order to give Robinson and others the fair and equal opportunity to compete for the position.

In rejecting the Fraternal Order's appeal, the Board ruled that both examinations were correctly announced as promotional examinations and that the scope of the titles to which the examinations were opened was also correct. Specifically, the Board held that the sheriff's officer promotional examination was announced in accordance with established procedures and further that, under the circumstances, the expanded and one-time-only promotional scope of the sheriff's officer sergeant examination did not constitute an intrusion or infringement on the inchoate rights of sheriff's officers to compete for promotion. The Board found ample justification for the application of the principle that the merit system encourages competition in the testing process. However, to insure nonrecurrence, the Board required that any subsequent provisional appointment of county correction personnel to an above-entry level sheriff's officer position not be approved.

Initially, we note that a determination of the Department may not be upset in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies expressed or implicit in the Civil Service Act. Campbell v. Dept. of Civil Serv., 39 N.J. 556, 562 (1963). Furthermore, administrative agencies have wide discretion in selecting the means to fulfill the duties that the Legislature delegated to them. Texter v. Dept. of Human Servs., 88 N.J. 376, 383-384 (1982). Agencies may act informally, or formally through rulemaking or adjudication in administrative hearings. Ibid. However, it is only when the subject matter of an agency determination concerns matters transcending those of individual litigants and involving general administrative policies that rulemaking procedures are implicated. Board of Educa., Plainfield v. Cooperman, 209 N.J. Super. 174, 204 (App.Div.1986), mod. on other grounds 105 N.J. 587 (1987). As we learn

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