On appeal from the New Jersey Department of Personnel.
Before Judges Petrella, Landau and Kimmelman. The opinion of the court was delivered by Landau, J.A.D.
The opinion of the court was delivered by: Landau
The opinion of the court was delivered by
Plaintiff-appellant Communications Workers of America, AFL-CIO (CWA) appeals from a determination by the Commissioner of the Department of Personnel (Commissioner) to adopt two "pilot" programs: the "Rule of Ten" and the "Extension of Working Test Period", under authority assertedly provided by N.J.S.A. 11A:2-11i. The one-year programs are applicable to local government civil service employers. CWA asserts that the programs violate N.J.S.A. 11A:2-11i, itself, as well as N.J.S.A. 11A:4-8 and N.J.S.A. 11A:4-15.
We hold that the pilot programs exceed the scope of powers which may lawfully be delegated under N.J.S.A. 11A:2-11i; violate its plain language by administratively controverting and altering the express provisions of existing statutes; and that they should not have been adopted without complying with the rule-making requirements of N.J.S.A. 52:14B-4.
Initially, we note that plaintiff has not appealed either from a rule or regulation adopted pursuant to N.J.S.A. 52:14B-4 or from an adjudicative ruling. The appeal contests a January 23, 1996 letter from the Commissioner dismissing CWA's objections to the implementation of the two pilot programs. The parties raise no jurisdictional questions.
Essentially, the appeal seeks declaratory relief, challenging the breadth, legality and constitutionality of the powers delegated to the Commissioner by N.J.S.A. 11A:2-11i and, implicitly, the amplification of that delegation by N.J.A.C. 4A:1-4.3. As adopted, that rule enables the Commissioner unilaterally to establish pilot programs not only "outside of Title 11A" but also "outside of" the duly adopted rules of the Department. *fn1
Pursuant to R. 2:2-3(a)(3) appeals may be taken to the Appellate Division as of right "to review final decisions or actions of any state administrative agency." We treat the Commissioner's letter of January 23, 1996, as the final step before departmental implementation of the pilot-programs considered herein. Compare Shapiro v. Albanese, 194 N.J. Super. 418, 428-429, 477 A.2d 352 (App. Div. 1984).
The Statute and the Pilot Programs
N.J.S.A. 11A:2-11 provides, in pertinent part:
In addition to other powers and duties vested in the commissioner by this title or any other law, the commissioner:
i. May establish pilot programs and other projects for a maximum of one year outside of the ...