On appeal from Superior Court of New Jersey, Law Division, Passaic County, L-6571-98.
Before Judges Ciancia, Lesemann, and Parrillo.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant County of Passaic (County) appeals an order of the Law Division reinstating, with back pay, plaintiff Dina Melani to her former position as the County's Director of Information and Referral in its Department of Aging. Plaintiff had worked for the County for seven years, but had never taken a civil service examination, so the County treated her as a provisional employee and not a permanent employee in its 1998 layoff plan. On appeal, the County argues that the trial court should have granted its motion to transfer the matter to the Department of Personnel (DOP). We agree that plaintiff's job rights are a matter for determination by the DOP. We therefore vacate the judgment entered below and transfer the matter to the DOP, which has the authority to grant a retroactive competitive examination or waiver thereof, to declare her status as a permanent and protected employee, and to fashion an appropriate remedy.
Plaintiff brought this wrongful discharge action against defendant after her termination on May 1, 1998, alleging, in part, that the County should be equitably estopped from treating her as a provisional rather than a permanent employee due to its failure to call for a civil service examination during her seven- year tenure. The matter was tried without a jury after defendant's multiple motions to transfer the action to the DOP were denied. At the close of the proofs, the trial court found that "actual budgetary considerations did not underlay [plaintiff's] job termination." Accordingly, the court ordered that plaintiff be immediately restored to her former position "or to a comparable administrative position at the same salary she earned at the time of her termination," where she could remain "until a competitive examination for the position of Director of Information in the Office of Aging has been called and a certified list has been issued by the Department of Personnel and a person has been appointed from that list." Plaintiff would also receive back pay and re-enrollment in the pension system retroactive to the date of her termination. This order was stayed pending appeal.
Defendant appeals from the order of reinstatement, claiming that the determination of plaintiff's job rights lies within the primary jurisdiction of the DOP to which the matter should have been transferred and that, in any event, the trial court erred by allowing a provisional employee to retain her position merely because she was not offered a civil service examination. Defendant also claims that the trial judge erroneously shifted the burden to the County to prove the good faith basis of the layoff instead of placing it on plaintiff to show a reason for her termination other than economy and efficiency.
As in Kyer v. City of East Orange, 315 N.J. Super. 524, 527 (App. Div. 1998), we are persuaded that the facts here dictate the need for "a remedy or, at least, a remedial opportunity . . . [and] that the affording of a remedy appropriately lies within the [DOP], to which we transfer this dispute."
Our recitation of the relevant facts is based upon the proofs adduced at trial. Plaintiff was first employed by defendant in August 1991 as a secretarial assistant. Her appointment to that position was as a provisional employee in the classified service, N.J.S.A. 11A:4-13(b), pending open competitive examination. Although that statute prohibits maintaining provisional status for more than twelve months, plaintiff remained in provisional status for the next seven years and never sat for a civil service examination. After her first year of employment, plaintiff was transferred to the Passaic County Area Department of Aging – an agency that provided senior citizens in the county with, among other things, information about, and referrals for, services, benefits, and entitlements. On July 1, 1992, plaintiff was appointed as the agency's Director of Information and Referral.
The County is a civil service political subdivision whose hiring actions are subject to DOP review. N.J.A.C. 4A:4-1.10(a). The County was free, pursuant to N.J.S.A. 11A:4-13(b), to make a provisional appointment to the position in which it placed plaintiff upon its certification to the DOP "that . . . the appointee meets the minimum qualifications for the title at the time of appointment and that failure to make a provisional appointment will seriously impair the work of the appointing authority." It was also, of course, required to advise the DOP of the provisional appointment and to seek the DOP's approval thereof by filing the required "new-hire" forms, thereby permitting the DOP to fulfill its function of notifying the appointing authority whether its action was approved or disapproved. N.J.A.C. 4A:4-1.10(b). The filing of the "new- hire" forms also started the process for creating new job titles and arranging competitive examinations.
No proof was adduced that the DOP ever received either plaintiff's initial hiring forms or transfer forms effecting her change in title from secretarial assistant to unit director. It is also undisputed that the County had never received a communication from the DOP approving or disapproving of plaintiff's provisional employment or her transfer in July 1992 to the Department of Aging, a fact that should obviously have alerted it that plaintiff's papers had not been received by the DOP. Indeed, plaintiff never received notice from the DOP that a civil service examination would be scheduled for her job title.
In 1996, the County's governing body proposed a zero-growth budget that necessitated staff reductions to be implemented on March 1, 1997. On February 24, 1997, the County notified the DOP of thirty-three planned layoffs for 1997. This plan required the approval of the DOP, which would review and consider alternatives to layoffs and determine employees' seniority and displacement rights. The DOP approved the 1997 layoff plan that resulted in job terminations for, among others, four permanent employees.
Further layoffs were planned for 1998 including provisional employees to be laid off on May 1, 1998 and permanent employees on June 15, 1998. On April 27, 1998, the DOP approved the County's layoff plan that affected forty-four employees from fourteen departments of county government, including permanent employees and three employees in the Department of Aging, including plaintiff. Plaintiff was notified on April 15, 1998 of her termination effective May 1, 1998.
Thereafter, in April 1999, defendant approved the merger of the Department of Aging into the County's Human Services Department. Under the consolidation, the former agency's information and referral services work was incorporated into the existing Human Services information and referral services office, which served disabled and homeless individuals. There was an information and referral services supervisor for the whole office; no supervisor exclusively oversaw services provided for senior citizens. Federal grant monies that helped fund the Department of Aging's information and assistance functions were continued in 1999 and 2000, with the County and State providing "matching" funds of ...