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In re Boyan

Decided: February 26, 1991.

IN THE MATTER OF WILLIAM L. BOYAN AND ISAAC G. MCNATT, DEPARTMENT OF LABOR. WILLIAM L. BOYAN AND ISAAC MCNATT, PLAINTIFFS-APPELLANTS,
v.
FEATHER O'CONNOR, TREASURER, STATE OF NEW JERSEY, RICHARD B. STANDIFORD, DIRECTOR, BUDGET AND ACCOUNTING, TREASURY DEPARTMENT, STATE OF NEW JERSEY AND EUGENE MCCAFFREY, COMMISSIONER, DEPARTMENT OF PERSONNEL, STATE OF NEW JERSEY, JOINTLY AND SEVERALLY, DEFENDANTS-RESPONDENTS



On appeal from Final Decision of the State Treasurer, the Commissioner of Personnel, and the Director of the Division of Budget and Accounting, styling themselves as the "Salary Adjustment Committee.

Petrella, Bilder and Muir, Jr. Petrella, P.J.A.D. concurring.

Per Curiam

[246 NJSuper Page 302] Appellants William L. Boyan and Isaac G. McNatt are both Judges of the Division of Workers' Compensation, and as such are employees in the executive branch of State Government. They appeal from a decision of the State Treasurer, the Commissioner of Personnel, and the Director of the Division of Budget and Accounting, who collectively have undertaken to function under a recurring provision in the annual Appropriations Act as a committee which has been referred to as the "Salary Adjustment Committee" (SAC).*fn1 This appeal involves

appellants' claims to entitlement to 1987 and 1988 annual salary increments, "steps" in the salary range, as opposed to merit increases. We conclude that the statute prevails over any contrary rule or regulation.

In June 1988, Boyan and McNatt instituted an action in lieu of prerogative writs in the Law Division against the former State Treasurer, the former Director of Budget and Accounting, and the former Commissioner of the Department of Personnel seeking to compel payment of their annual salary "in salary range 39" under N.J.S.A. 34:15-49 at the appropriate step of the State Compensation Schedule, as well as money damages. Respondents asserted seven separate affirmative defenses, including failure to exhaust administrative remedies. The Law Division judge relied on R. 1:13-4(a) to transfer the complaint to SAC on November 10, 1988. SAC thereafter denied appellants' claim in a May 22, 1989 decision, reissued*fn2 June 7, 1989, which also incorporated a copy of SAC's July 30, 1986 decision which had involved Boyan.

The facts are not complicated. Boyan*fn3 and McNatt were appointed Judges of the Division of Workers' Compensation in January 1982 by the Governor, pursuant to N.J.S.A. 34:15-49. That position is considered in the unclassified service (N.J.S.A. 11A:3-4(a)), and is in the Department of Labor in the executive

branch of government. See N.J.S.A. 34:1A-11; N.J.S.A. 34:1A-5.1.

On December 22, 1984 Boyan and McNatt each received raises in salary to $51,314.79 per year. SAC approved salary increases in range 39 each year from 1985 through 1988, which both appellants received. McNatt's salary was increased on March 28, 1987 to $64,731 and on November 1, 1987 to $67,967.55. As of March 22, 1987, Boyan was earning $61,702.46. His salary was increased on November 1, 1987 to $65,404.61. As of the date of SAC's decision which is the subject of this appeal, Boyan was earning $70,000 per year and McNatt was earning in excess of $73,000 per year.

The compensation schedule, as adopted by the Merit System Board of the Department of Personnel and in effect on September 12, 1987, listed the minimum salary for range 39*fn4 as $56,639.34 at step one, with a maximum salary for that range at step nine of $79,295.82. Each step, listed as an "increment" on that compensation schedule, was $2,832.06 higher than the previous step.

Since appellants were both appointed in January 1982, as of April 1988, in the normal course, they would have progressed to the seventh step.*fn5 At that step, appellants would have received

$73,631.70. However, as noted, McNatt was paid at the rate of $67,967.55; Boyan at a rate of $65,404.61. A disparity still exists between their salaries, and Boyan questions the basis for such disparity.

In its June 17, 1989 decision SAC, relying on its own salary "rules and regulations"*fn6 governing employees whose salaries exceed $50,000 per year, rejected appellants' claims of entitlement to step increases. SAC also relied on the fact that in recent years its regulations have consistently provided no automatic incremental pay increases for employee salaries over $50,000. Rather, pay increases for such "employees are based on performance and require department head approval." SAC concluded that N.J.S.A. 34:15-49 does not require a different result for compensation judges, and found no basis for their entitlement to automatic step increases.

Essentially, the difference between the rate at which Boyan and McNatt are paid and the rate to which they claim entitlement, is the result of SAC's interpretation of N.J.S.A. 34:15-49 and its policy of treating executive branch salaries in excess of $50,000 differently than those below that figure. In concluding that, under its regulations, state employees in the executive branch of government, including Judges of Workers' Compensation whose salaries exceed $50,000 are not entitled to receive automatic incremental pay increases, SAC noted in its May 22, 1989 final decision:

It must be emphasized that Salary Regulations governing employees whose salaries exceed $50,000.00 have been in place for this administration and the Legislature has continued to direct that the Committee promulgate rules and

regulations governing rates of pay in the annual Appropriations Act. Clearly, the Legislature is aware of this longstanding process for Executive Branch employees which has continued without legislative interference. See Pringle v. Department of Civil Service, 45 N.J. 329 [212 A.2d 360] (1965). Employees whose salaries reach the $50,000.00 threshold no longer receive automatic or standard incremental pay increases. Rather, pay increases for such employees are based on performance and require department head approval. Thus, for compensation purposes, standard increment steps are no longer applicable to employees whose salaries have reached the $50,000.00 limit.

The first sentence quoted above from SAC's 1989 decision is somewhat misleading. Although employees' salaries which exceed $50,000 have been subjected to the contested regulations adopted by SAC, it is inappropriate to couple that statement with the Legislature's limited direction in the Appropriations Act to promulgate rules and regulations confined to "salary ranges and rates of pay." However, the principal issue before us is whether N.J.S.A. 34:15-49 expresses a legislative intent to treat salaries of Judges of Workers' Compensation differently from that of other executive branch state employees in salary range 39.

Appellants argue that they are entitled to the annual increment in their salary range, and that SAC did not act within its enabling legislation because its "rules and regulations" in effect, "repeal[ed] express provisions within N.J.S.A. 34:15-49." They argue that N.J.S.A. 34:15-49 requires annual increases ("steps") for Judges of Workers' Compensation since the statute states: "The salary of the judges of compensation shall be as provided in salary range 39 of the Compensation Plan. . . ." That section goes on to state:

In establishing the applicable increment category level of the . . . judges of compensation appropriate credit shall be given for years of service heretofore and hereafter as judge of compensation. . . . No subsequent annual increment for a judge of compensation shall be made unless the judge of compensation is evaluated favorably by the director of the division on the basis of recommendations made by the supervising judge of compensation.

During various periods*fn7 the Legislature has included in the Appropriations Act language which authorizes designated officials to establish "rules and regulations governing salary ranges and rates of pay." The applicable statutory language for fiscal year 1988, the most recent year considered in SAC's decision, provided:

The State Treasurer, the Commissioner of Personnel, and the Director of the Division of Budget and Accounting shall establish rules and regulations governing salary ranges and rates of pay. The implementation of such rules and regulations shall be made effective at the beginning of the bi-weekly pay period nearest July 1, 1988 or thereafter as determined by such rules and regulations, with timely notification of such rules and regulations to the Joint Budget Oversight Committee or its successor. [ L. 1988, c. 47, at 269].

Similar language, except for the applicable effective date, appeared in each Appropriations Act for Fiscal Years 1986 and 1987. See L. 1987, c. 154, at 252; L. 1986, c. 41, at 247.

The joint regulations adopted by the Merit System Board and SAC, pursuant to the quoted language in the Appropriations Act, deal with salaries of employees in the executive branch of state government who earn $50,000 or more. Rule SR# 8 was adopted as an amendment to the State Compensation Plan by the Merit System Board at its meeting of September 22, 1987, to govern when raises are to be given,*fn8 and states:

The Commissioner of the Department of Personnel and the Director, Division of Budget and Accounting, shall implement the following salary regulations for the Executive Branch of State Government for Fiscal Year 1988, which shall be applicable to employees whose class titles are assigned to Employee Relations Groupings D, M, V, W, X, Y, and Z and whose annual salaries are at or exceed $50,000 during Fiscal Year 1988.

I. Increases

A. Covered employees may receive performance-based merit increases only. Employees whose annual salary on the day immediately preceding their anniversary date or last increase was at or over $50,000, may receive up to $4,000 for performance. Over $4,000, not to exceed a total increase of $6,000, for the fiscal year requires extraordinary justification. Any increase will be effective no earlier than 12 months from appointment or last increase. Those whose salaries on September 12 are at or exceed $50,000 as a result of application of general increases will fall within the provisions of this section.

SAC says that the salary regulations limit raises of executive branch employees whose salaries exceed $50,000, to performance-based increases of up to $6,000, and even as to this an increase above $4,000 requires extraordinary justification. See, e.g., Salary Regulation # 1-89 (adopted June 21, 1988), applicable to Fiscal Year 1989; adopted by the Merit System Board as an amendment to the State Compensation Plan. Employees earning below $50,000 also obtain cost-of-living increases which are provided for by adjustments in the salary ranges. Thus, for example, the first step of appellants' range 39, which was $56,639.34 effective September 12, 1987, was $53,942.23 a year earlier -- a 5% difference. SAC argues that strict application of the range 39 steps would provide appellants with cost-of-living increases as well as performance increases, and in some cases this would violate the $6,000 limit and the $4,000 limit to which higher paid employees of the executive branch are limited, absent extraordinary justification. SAC points out that N.J.S.A. 34:15-49, provides by its terms that "no subsequent annual increment for a judge of compensation shall be made unless the judge of compensation is evaluated favorably by the director of the division [of Workers' Compensation]. . . ." It argues that this demonstrates legislative direction for performance-based increase methodology in its regulations.

Appellants note that N.J.A.C. 4:2-20.3(a), repealed and recodified January 4, 1988 as N.J.A.C. 4A:6-5.3, provided that state employees shall receive increments (that is, move from one salary to the next) on their "anniversary" dates, if they receive satisfactory evaluations. However, the corresponding language

is not found in N.J.A.C. 4A:6-5.3. N.J.A.C. 4:2-20.3(a) states:

As provided in the State Compensation Plan and Salary Procedures, an employee shall receive an anniversary date increment unless his or her final rating was the lowest PAR [Performance Assessment Review] rating. An employee who receives the lowest PAR rating shall be denied an anniversary review.

The recodified section, N.J.A.C. 4A:6-5.3(b) provides:

An employee receiving an annual PAR rating at the lowest level shall be denied an anniversary date increment.

It thus appears that the recodified regulations have removed reference to salary increments. Nevertheless, by referring to employees being "denied an anniversary date increment," the recodified section still supports appellants' claim.

Moreover, appellants argue that the New Jersey Administrative Code only provides for salaries on step, and not in between. They maintain that this is evident from N.J.A.C. 4:1-7.1, repealed and recodified on September 6, 1988 as N.J.A.C. 4A:3-4.1. N.J.A.C. 4:1-7.1(a)(2) provided that for employment in state service:

The compensation schedule shall establish pay rates and a series of pay ranges containing minimum, maximum and intermediate salary steps. Each full-time employee in the classified service shall be paid at one of the rates in the compensation schedule for the class in which he is employed.

N.J.A.C. 4:1-7.3(a)(2) stated that for employees in state service:

The Civil Service Commission [now the Department of Personnel] shall establish regulations for normal increments. These shall be regular periodic increases within the salary range, subject to available appropriations based on a period of service and performance rating.

N.J.A.C. 4A:3-4.1(d) now provides for state service employees:

1. The compensation plan shall establish pay rates and a series of salary ranges.

2. Each employee in the career and unclassified services shall be paid within the salary range or at the pay rate assigned to the employee's job title and pay shall be adjusted in accordance with this subchapter, except as otherwise provided by law, rule or action of the Commissioner.

Appellants assert that based on N.J.A.C. 4:1-7.3, repealed and recodified as N.J.A.C. 4A:3-4.1, an "employee is entitled to

progress as a matter of right, if he has served an additional year and he has received a 'satisfactory' performance rating." The former N.J.A.C. 4:1-7.1 applied to the classified service, and did not state that it applied to unclassified positions such as judges of compensation. The recodified N.J.A.C. 4A:3-4.1(d) specifically states that unclassified positions shall be paid within the salary range "except as otherwise provided by law, rule or action of the Commissioner [of the Department of Personnel]."

Appellants argue that the following language in SAC's regulations, promulgated each year, is contrary to the statutory provisions of N.J.S.A. 34:15-49: "covered employees may receive performance-based merit increases only." Appellants thus argue that once a compensation judge is evaluated favorably by the Director of the Division of Workers' Compensation, that compensation judge must be moved to the next higher step in range 39.*fn9

Respondents contend that the Legislature has not only consistently directed that the three officers, who comprise what is referred to as SAC, determine salary adjustments for state employees, but has also provided that no salary shall be increased or salary adjustment paid to any state employee without the prior approval of these officers. For this proposition they refer us to appropriation laws adopted in 1990 and 1978 (see e.g., L. 1990, c. 43; L. 1978, c. 60). However, the language in those acts would not affect the years at issue in this appeal. In any event, there is also no indication that the general language in any Appropriations Act was ever intended to overrule or repeal the specific language of N.J.S.A. 34:15-49.

There is no other applicable legislation which presently refers to those three state employees. Prior to September 25, 1986

(when the Civil Service Act, L. 1986, c. 112, replaced Title 11 with Title 11A), N.J.S.A. 11:14-17 had given specific duties by titles to three officials in the executive department (essentially the same as the present members of SAC). However, N.J.S.A. 11:14-17 dealt solely with lump sum payments of accumulated sick leave*fn10 to state employees upon retirement and provided with respect thereto:

The President of the Civil Service Commission, the State Treasurer and the Director of the Division of Budget and Accounting shall jointly prepare and promulgate rules and regulations to implement this act, including but not limited to the procedure for application for, and payment of, such supplemental compensation and reasonable standards for determining which State employees are eligible for the supplemental compensation payment provided herein.

Title 11, chapter 8 (referred to in N.J.S.A. 34:15-49) was repealed effective September 25, 1986, and replaced by N.J.S.A. 11A:3-7 and N.J.S.A. 11A:6-24. The Commissioner of the Department of Personnel was substituted for the Civil Service Commission. Adoption of Title 11A by L. 1986, c. 112, effective September 25, 1986, omitted those three officials named in its Title 11 predecessor. The successor section, N.J.S.A. 11A:6-23 merely said:

The board [the Merit System Board] shall adopt rules for the implementation of supplemental compensation, which shall include but need not be limited to application and eligibility procedures.

The reference to "the board" in N.J.S.A. 11A:6-23 refers to the Merit System Board, which consists of five members, one of whom is the Commissioner of Personnel, with four other members appointed by the Governor. N.J.S.A. 11A:2-1 and 11A:2-3. Thus, the three officials previously named, in now repealed N.J.S.A. 11:14-17, were omitted in the revision of the Civil Service Act, and the ...


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