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In re Donohue

April 04, 2000


Before Judges Baime and Brochin.

The opinion of the court was delivered by: Baime, P.J.A.D.


Argued March 22, 2000

On appeal from the New Jersey Department of Personnel.

This appeal is from a decision of the Commissioner of Personnel sustaining the termination of appellants' employment as rate analysts with the Department of Environmental Protection (DEP). Appellants contend that the Commissioner erroneously denied their application to expand the layoff unit to include the Board of Public Utilities (BPU) and to allow them to exercise their lateral and demotional rights with respect to rate analyst positions in that agency. We remand the matter to the Commissioner for reconsideration of her decision.


Prior to August 1991, appellants were employed by the BPU as rate analysts. In that year, the BPU was merged into the DEP pursuant to a governmental reorganization plan. Appellants were informed that they retained accumulated seniority, sick leave and vacation entitlements as well as their layoff or demotional rights See N.J.A.C. 4A:4-7.4 (transferred employees retain their demotional rights and sick leave, vacation and accumulated seniority).

In July 1994, the BPU returned to its former status as an autonomous agency pursuant to another governmental reorganization. However, the DEP retained a small number of rate analysts to serve in its Division of Solid and Hazardous Waste. The only DEP employees who held the rate analyst position were those who previously worked for the BPU. Most of the rate analysts returned to the BPU. Appellants were among the few who were retained by the DEP.

Although the work performed by the DEP's rate analysts was essentually the same as that performed by the BPU's rate analysts, the DEP's retention of appellants was to have a profound effect upon their careers. In July 1994, the DEP laid off employees who held a job title directly below that of appellants. Under Civil Service regulations, workers who are separated from service in a reduction in force have demotional rights to lower job titles and thus may "bump" or displace persons holding such positions. They also have lateral rights and may "bump" or displace workers having less seniority within the same job title. Following the reduction in force by the DEP, appellants could not exercise their demotional rights in that agency because the job titles directly below their position had been eliminated. After the DEP's 1994 layoffs, the only state employees who held the title rate analyst were those who worked for the BPU. Appellants could not exercise their demotional rights and "bump" BPU rate analysts because N.J.A.C. 4A:8-1.5(a) limits a layoff unit to the worker's department or autonomous agency. State employees may not exercise demotional or lateral rights to positions in other agencies even when the job titles are identical and the work performed is the same. Ibid.

With the looming prospect of additional layoffs, appellants petitioned the Merit System Board on March 20, 1995. They sought a more flexible interpretation of the applicable layoff unit. In its response, which was published in the New Jersey Register, the Board replied that "the layoff unit in State service should remain the department or autonomous agency" in which the worker is employed, but that a petition to relax the rule may be submitted if N.J.A.C. 4A:8-1.5(a) "causes a problem in a particular situation."

On September 15, 1995, appellants filed a petition with the Commissioner seeking relaxation of N.J.A.C. 4A:8-1.5(a). Noting the peculiar circumstances in which they were "stranded" in the DEP by reason of the second governmental reorganization, appellants asked the Commissioner to "approve a layoff unit consisting of more than one department." Specifically, they requested that the layoff unit be expanded to include the BPU. Alternatively, appellants suggested that the "appointing authority[]" reassign or transfer them to other positions in the DEP "to lessen the possibility . . . of future layoffs."

The Commissioner responded on November 27, 1995. While recognizing her power to relax a rule for good cause, the Commissioner declined appellants' request to expand the layoff unit to include the BPU. The only reason given for the Commissioner's denial of appellants' application was that the BPU appointing authority and BPU employees "who could be adversely affected would not support" the proposed action. As to appellants' alternative request for a reassignment, the Commissioner observed that their "legitimate concerns" could be addressed "through mechanisms such as reclassification to an alternate job title." The Commissioner thus ordered the Director of the Division of Personnel Management to "conduct a classification review of [r]ate [a]nalyst titles."

On November 29, 1995, appellants were directed to complete a "Job Analysis Questionnaire." Appellants expeditiously complied. The matter remained dormant, however, causing appellants to inquire into the status of the classification review in February 1996. In response, appellants were advised that Arthur Brown, the Director, was in the process of "reviewing the results of [the] analysis and [was] considering the options available."

On May 15, 1996, the Director denied appellants' request for reclassification. While observing "some degree of similarity between the job duties being performed [by appellants] and the job duties of other titles within the DEP," the Director concluded that "[t]he existing rate analysts ...

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