Before: Judges King, Kleiner and P.G. Levy
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the New Jersey Merit System Board.
The opinion of the court was delivered by P.G. LEVY, J.A.D.
Effective July 8, 1995, appellant, Matthias L. DiMattia, was one of 1665 employees effected by a layoff action conducted for Fiscal Year 1996 in the Department of Environmental Protection (DEP). Appellant's career service title as Administrative Analyst I remained the same but his 40-hour workweek position was eliminated and he exercised layoff rights to move to a 35-hour workweek position. His salary was adjusted to comport with the reduced work hours per week. Appellant filed a good-faith layoff appeal, contending that a 1987 settlement agreement insulated him from the layoff effect.
In 1985, the Department of Personnel (DOP) advertised a promotional examination for Chief, Bureau of Collections, Licensing and Management Services. That examination was open to permanent employees in the Bureau of Collections, Licensing, Management Services and the Bureau of General Services and Procurement Promotional Unit, who had completed their working test period in the titles of Administrative Analyst I or Supervising Accountant and who had served continuously in a permanent capacity for at least one year. The promotional position of the Chief of the Bureau of Collection and Licensing carried a salary range 31, which was an increase of two ranges above appellant's then current salary range 29. Appellant was eligible for this promotion. However, shortly after the filing date, Ronald Tuminski, who then served as the Department of Environmental Protection (DEP) Director of Personnel, reassigned appellant to the Office of the Director, "promotional unit scope." As a result, the DOP Director of Examinations determined that appellant was ineligible to participate in the exam.
Appellant unsuccessfully petitioned the Director of Examinations for review of this matter. He then petitioned the Merit System Board (MSB) for further review, contending that his reassignment was effected in bad faith to prohibit him from test eligibility and to secure permanency for another employee, in violation of civil service law. During the pendency of the appeal, the parties agreed to settle the dispute and entered into an agreement dated February 1987. The agreement provided that appellant's application for the promotional position would be accepted and graded, and that he would be appropriately ranked for record purposes on the promotions list. In addition, the agreement stated that if appellant were reassigned to a position within the "promotional unit scope" while the list was in effect, he would be eligible for appointment from the list at the rank on the list to which he was assigned. The appellant finished first on that Civil Service Promotional List.
On February 11, 1987, Tuminski forwarded that agreement to appellant's former attorney. In a letter enclosed with the agreement, Tuminski wrote:
This will confirm your conversation with Mr. William Russell of my staff regarding the settlement agreement in the matter of your client Mr. Matthias L. DiMattia. It is understood that you and your client will sign this agreement and forward the original to Mr. Peter Boone in the Department of Personnel and a signed copy will be returned to me.
Also enclosed is an internal personnel action request which reassigns Mr. DiMattia to the Division of Parks and Forestry effective December 8, 1986. Please note that in this reassignment the title has been converted to a 40 hour workweek. This change of workweek will result in a one range increase to salary range 30. A copy of the CS21 form will be sent to you upon processing to the Department of Personnel. [emphasis added].
On March 2, 1987, the MSB acknowledged the settlement and indicated:
The stipulation of the settlement provides, among other matters, for appellant's ranking for record purposes, on the Chief, Bureau of Collections, Licensing, and Management Services hiring roster and certification of his name for appointment opportunities upon notice to the Department of Personnel that appellant has been restored to this promotional unit scope.
The promotional list expired on or about July 10, 1989. Moreover, the promotional title of Chief, Bureau of Collections, Licensing, and Management Services, has not been used in DEP since on or about September 9, 1989.
Since the date of the 1987 settlement, appellant has been reassigned several times while employed with the DEP. As a consequence of a reduction in force in 1992, appellant was reassigned from Parks and Forestry to the Environmental Safety, Health and Analytical Program. Then on November 27, 1993, he was reassigned to the Office of Audit. Thereafter, on February 5, 1994 he was reassigned to Financial Management and ...