July 6, 2007
IN THE MATTER OF CHRISTINE VELIZ
On appeal from a Final Administrative Decision of the Merit System Board, 2006-1762.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2007
Before Judges Seltzer and C.L. Miniman.
Christine Veliz appeals the final agency decision of the Merit System Board dated April 6, 2006, insofar as it refused to disturb a Department of Personnel Notice of Eligibility assigning to her a rank of 11 and a score of 70.000 on an unassembled examination for Attendance Counselor, Bilingual in Spanish and English, Newark School District and refused to render another candidate ineligible. We affirm.
Veliz was a candidate for an examination for Attendance Counselor, Bilingual in Spanish and English, Newark School District which was opened on August 1, 2005, with a closing date of August 22, 2005. The examination was "unassembled" and rankings were assigned based on an evaluation of the education and experience as set out in the candidates' applications. The final decision of the Merit System Board described the examination:
It is noted that the unassembled examination standard on which the scoring process for this examination was based gave credit for possession of a Bachelor's degree and up to ten years of experience in teaching, guidance counseling, or social work, or experience in the collection and investigation of information regarding school absences. Only three scores were assigned, 70.000, 80.000, and 90.000. All applicants who met the minimum requirement, a Bachelor's degree or four years of applicable experience, received a base score of 70.000. Applicants who possessed a Bachelor's degree and one month to two years of experience (or four years, one month to six years of experience per the substitution clause) received a score of 80.000. Applicants who possessed a Bachelor's degree and two years, one month of experience and over (or six years, one month and over of experience per the substitution clause) received a score of 90.000.
Appellant indicated that she did not possess a Bachelor's degree. She listed three positions on her application: 1) provisional Attendance Counselor, Bilingual in Spanish and English for the school years 2001-2002 to 2005-2005 [sic] (4.5 school years); 2) School Clerk for the school years 1996-1997 to 2000-2001 (five school years); and 3) Title 1 School Clerk for the school years 1985-1986 to 1995-1996 (eleven school years). Appellant received credit for four years of experience in the first position from September 2001 to August 2005. Departmental records reveal that appellant was a provisional Attendance Counselor, Bilingual in Spanish and English from October 2001 to the closing date, a School Clerk from April 2001 to October 2001, a Clerk Typist from April 1986 to April 2001, and a School Clerk from September 1985 to April 1986.
The Merit System Board concluded that Veliz was properly assigned a score of 70.000:
A review of the record indicates that appellant received credit for four years of experience as a provisional Attendance Counselor, Bilingual in Spanish and English. Her experience as a School Clerk in either position was inapplicable. It is noted that that applicable experience has the announced experience requirement as the primary focus of position. Ms. Veliz did not possess a Bachelor's degree, and therefore was required to possess four years of applicable experience. Departmental records indicate that she was a provisional in the subject title for three years, eleven months. She did not properly complete her application by providing months and years of service, but used school years instead. She also did not use the proper titles of her positions. Nonetheless, she was admitted to the examination and given a score of 70.000.
Although she falls one month short for eligibility, the Board declines to declare her ineligible.
On appeal, Veliz asserts that she should have been credited with the work she performed as a school clerk which "required her to gather information and prepare reports on the subject of absenteeism, maintain records and files, utilize various types of electronic and/or manual recording and information systems used in the agency, and read, write, speak, understand, and communicate in both Spanish and English." The Merit System Board determined this was unrelated to the job description of the Attendance Counselor, which was concerned primarily with investigating reasons for absences, securing information to improve attendance, including the preparation of social case histories, the collection of data for legal actions, and counseling students.
The Merit System Board's determination is entitled to a presumption of correctness. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). Our review is limited. We may interfere only if the decision "was arbitrarily, capricious or unreasonable." Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998) (citing In re Warren, 117 N.J. 295, 296 (1989)). Said another way, so long as the decision of the agency could have been reached on the credible evidence in the record, no judicial modification is warranted. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The burden of proving the action arbitrary, capricious or unreasonable is on the party challenging that action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). Our independent review of the record convinces us that Veliz has failed to shoulder that burden. To the contrary, the record adequately supports the Board's determination that Veliz's duties as school clerk were not applicable to the position for which she applied. A comparison of the duties required of Veliz in her position as school clerk and those required by the position for which she was a candidate demonstrate the non-congruent requirements of the two positions. Veliz's claims to the contrary lack sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(1)(D), (E). We also reject Veliz's contention that another candidate should have been declared ineligible because she was unable to communicate effectively in both English and Spanish. The announcement for the examination provided that the bilingual skills "will be tested at time of certification." Any challenge to a candidate's eligibility before certification is premature.
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