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In re Asplen


July 8, 2008


On appeal from a final decision of the Merit System Board, DOP Docket Nos. 2006-2292 and 2007-1092.

Per curiam.


Argued March 4, 2008

Before Judges Parrillo and Gilroy.

Appellants Ralph Asplen and Edward Reardon appeal from the October 5, 2006 final decision of the Merit System Board (Board), which denied their: 1) appeal challenging the decision of the Department of Environmental Protection (DEP) to bypass them in selecting candidates eligible for appointment to the position of Hazardous Site Mitigation Specialist 1 (HSMS1); and 2) request for reconsideration of the Board's July 28, 2005 decision, granting a one-time rule relaxation of the one-year supervisory experience requirement to establish examination eligibility for the HSMS1 title. We affirm.

Appellants are employed with the DEP as Principal Environmental Specialists in the Division of Solid and Hazardous Waste (Division). Asplen has been employed with the DEP since September 1988, and possesses a Bachelor of Science Degree in Geography & Environmental Planning and a Master's Degree in Geography. Reardon has been employed with the DEP since 1985 and possesses a Bachelor of Science Degree in Environmental Engineering and a Master's Degree in Environmental Engineering, Water Resource Planning and Management.

In June 2004, the DEP issued a notice of vacancy for eight HSMS1 positions within the Division,*fn1 after which it provisionally appointed eight Division employees to the HSMS1 position, pending their passing a promotional examination. Because of complaints voiced by several other DEP employees who had not been provisionally appointed, the DEP's Review Panel conducted an investigation, which determined that the process utilized by the DEP in selecting its provisional appointees was "horribly flawed and that the DEP, as an institution, failed to have a credible, fair, and consistent promotional process."

In January 2005, the Department of Personnel (DOP) announced an examination for the HSMS1 position (PS4887G). Because no Division employees were permanent in the HSMS2 title, the examination was open to all Division employees, who had an aggregate of one year of continuous permanent service as of the announced closing date who possessed a Bachelor's degree from an accredited college or university in the physical sciences, environmental sciences, chemical sciences, biological sciences, or environmental planning or engineering and had four years of experience performing enforcement, field investigations, inspections, surveys, and/or interrelated environmental work, two years of which shall have been in the control of hazardous/non-hazardous substances or waste in environmental and/or solid waste management, or four years of experience involving case management, project management, administering contracts or interrelated environmental work for hazardous/non-hazardous waste clean-up activities. One of the four years of the indicated experience shall have been in a supervisory capacity.

[(Emphasis added).]

Eleven of the Division employees who applied for the examination, including four provisional appointees, were deemed ineligible because each lacked the one-year supervisory experience requirement. Because of a climate of "distrust of management in the unit," the DEP and the employees' local union representative requested that the DOP grant a one time rule relaxation of the one-year supervisory experience eligibility requirement for taking the HSMS1 examination. On July 28, 2005, the Board issued a seventeen-page written decision, granting the request, which, as a result, mooted appeals from fifteen employees who had challenged a determination of the Division of Selection Services, concluding they had not met the supervisory experience requirement for the promotional examination.

After the rule relaxation, twenty-nine Division employees applied to take the promotional examination, and twenty-eight were found eligible. The promotional examination was conducted in August and September 2005, which resulted in an employment roster of twenty-three eligibles. On September 29, 2005, the DOP promulgated a certification containing the names of the top twelve eligibles. Asplen and Reardon were ranked second and seventh, respectively. On October 17, 2005, the eligibles interviewed with the Selection Panel, consisting of four DEP employees, three of whom were not employed in the Division. The interview process consisted of a standard set of four questions, from which the candidates' responses were numerically rated by each panel member. "The numeric ratings were then compiled and a 'ranking' was developed based on the scores. The panel then used the formal promotional list and the interview scores as a means for making the final selection."

Eight individuals from the certified list of twelve eligibles were appointed to the HSMS1 position. Although appellants were ranked second and seventh following the written examination, they were bypassed for promotion. On December 14, 2005, appellants appealed their bypass for promotion and requested that the Board reconsider its July 28, 2005 decision relaxing the one-year supervisory experience eligibility requirement for the HSMS1 title.

In support of their request for reconsideration of the Board's relaxation of the one-year supervisory experience eligibility requirement, appellants argued that their request was timely because an appeal of that ruling made prior to the examination would have been premature, that is, if appellants were to have been selected to fill one of the eight available positions, then their objections to the rule relaxation would have been moot. As to their bypass for promotion, appellants argued that the appointments made from the promotional list were arbitrary and unreasonable because the DEP failed to provide an adequate explanation as to why "the appointees were selected instead of a higher rank eligible or an eligible in the same rank." The appellants also contended that the DEP had violated the "Rule of Three" when making selections from the certified list of eligibles. Lastly, appellants asserted that the selection of all four female candidates was "discriminatory with respect to Asplen."

On October 5, 2006, the Board issued its final decision, denying appellants' request for reconsideration of the relaxation of the one-year supervisory experience eligibility requirement, determining that the request was time barred; and moreover, appellants had failed to present any new evidence that the Board had not already previously considered when it granted the rule relaxation on July 28, 2005. The Board denied appellants' appeal challenging their bypass for promotion, determining that: 1) the DEP had "in fact, substantiated that it utilized an impartial, valid, non-discriminatory methodology in making its selections"; and 2) appellants' contentions that the DEP had violated "'Rule of Three' and that the appointments of the four highest ranking females were discriminatory are baseless."

In denying appellants' request for reconsideration of the Board's rule relaxation of the eligibility requirements, the Board recognized that at the time of its decision "there was no jurisdictional statutory timeline within which a petitioner was required to request reconsideration."*fn2 Because the Board determined that its July 28, 2005 decision was a final decision for purpose of appeal and appellants had not sought an appeal to the Appellate Division within the time contained in Rule 2:4-1(b), it concluded that appellants' request for reconsideration was untimely. As to appellants' argument that any appeal made prior to the July 28, 2005 decision would have been premature, the Board reasoned:

The Board is not persuaded by the appellants' argument that an appeal of the rule relaxation would have been premature prior to the examination since their objection would have been moot had they been appointed from the resultant promotional list. The timeframes to petition the Board for a reconsideration of a decision, or the appeal of any action, is crucial not only to ensure the due process rights of all impacted parties but also so agencies can act in reliance on the Board's determinations. Indeed, there are reasonable and legitimate expectations by the appointing authority of the validity and finality in using the list to effect permanent appointments, especially given the background and notice provided to all parties prior to the Board relaxing the eligibility requirements in this matter. Further, the eligibles who had been permanently appointed now have vested property interests which may not ordinarily be forfeited except in the most compelling circumstances.

The appellants present no compelling circumstances to reopen this matter. At a minimum, had the appellants filed a timely petition for reconsideration of the Board's July 2[8], 2005 decision, the Board could have taken a[] number of actions, such as ordering a stay in certification procedures, or, by operation of N.J.A.C. 4A:4-6.3(c) and N.J.A.C. 4A:4-1.4, put[ting] the appointing authority and impacted eligibles on notice that any permanent appointments would have to be made on a conditional basis until the matter was adjudicated. This not only would have ensured that the otherwise innocent parties to this matter would not be adversely impacted without an opportunity to be made a party to the matter, but also could have halted the costly test administration and selection process until the matter was adjudicated. As indicated earlier, the Board issued its determination on July 28, 2005[,] and the promotional roster promulgated on September 29, 2005. The appellants had ample time to present their concerns to the Board prior to any of these actions. Indeed, as indicated in the rule relaxation determination, the Board reviewed a number of concerns from the eligibles who were initially admitted to the subject examination, including Reardon, and determined that the unique circumstances of the situation warranted relaxing the requirements. The appellants in this matter essentially reiterate the concerns already addressed by the Board and have not presented any new information that would warrant reconsideration of the matter.

In denying appellants' appeal from their bypass for promotion, the Board concluded:

With respect to the matter of the appellants' bypasses, the appointing authority is not obligated to provide a candidate with the reasons why the lower ranked candidates were appointed. See Local 518, New Jersey State Motor Vehicle Employee Union, S.E.I.U., AFL-CIO v. Division of Motor Vehicles, 262 N.J. Super. 598 (App. Div. 1993) and In the Matter of Brian McGowan (MSB, decided April 6, 2005). Nevertheless, in the context of this appeal, the appellants had an opportunity to learn the reasons for their bypass, and to dispute those reasons. In this regard, it is noted that the appellants indicated in their June 8, 2006 submission that the Government Records Council granted their request in part for information they requested in order to support this appeal, which they submitted for the Board's consideration.

The appointing authority presented that each candidate was asked a standard set of four questions that were rated by a panel of four interviewers, three of whom were not from the Division of Solid and Hazardous Waste, the announced unit scope, in order to ensure a fair selection process. The numeric ratings assigned by this panel were compiled and a ranking was based on each candidate's responses. The appointing authority presents that this was the methodology utilized to make the final selections for the positions. Other than arguing that they possess more experience and Master's degrees, the appellants have not demonstrated that they were improperly bypassed. The Board notes that it is within an appointing authority's discretion to choose its selection method. Appointing authorities are permitted to develop and utilize objective standards in order to determine how to use that discretion. The use of a panel of interviewers familiar with the position and the assignment of numerical scores in a number of categories related to the position is a permissible way for the appointing authority to make a hiring decision, so long as that hiring decision is in compliance with N.J.A.C. 4A:4-4.8(a)3. See In the Matter of Paul Mikolas, (MSB, decided August 11, 2004) (Structured interview utilized by appointing authority that resulted in the bypass of a higher ranked eligible was based on the objective assessment of candidates' qualifications and not in violation of the Rule of Three).

The appellants expressed concern regarding the appointing authority's notation on the certification that it appointed the "most qualified candidate." Although a conclusory statement that the appointed eligibles were the "most qualified" may be sufficient for purposes of a certification to be in compliance with N.J.A.C. 4A:4-4.8(b)4, in the context of an administrative appeal, more reasons are generally required in order to evaluate the propriety of the bypass. See In the Matter of Denise Cole, (MSB, decided August 14, 2001); In the Matter of Bernadette Valente, (MSB, decided June 11, 2003). As indicated earlier, the appointing authority has in fact substantiated that it utilized an impartial, valid, non-discriminatory methodology in making its selections. Further, given the history of this matter, the appointing authority went as far as to create a panel of four interviews, three of whom were from different programs, in order to ensure fairness in the selection process. It is also noted that the appellant[s'] reliance on [In the Matter of Hruska, 375 N.J. Super. 494 (App. Div. 2005)] is misplaced. In Hruska, the appointing authority's hiring committee for its paid fire department established a selection criterion that required eligibles on the open competitive employment roster for Fire Fighter to be active in the borough's volunteer fire department as a prerequisite to be considered for employment in the Borough's paid fire department. The court found that the DOP job specification for Fire Fighter did not require applicants to be active volunteer firefighters and determined that the unannounced threshold qualification of active volunteer firefighting service, as applied to Hruska, was unjust and in violation of the pertinent regulatory framework.

With respect to their argument that they possess Master's degrees and more education and experience than a number of the appointees, it is initially noted that the Hazardous Site Mitigation Specialist 1 title does not require possession of a Master's degree. Rather, a Master's degree in certain fields can be utilized to substitute for experience in order to establish examination eligibility. Regardless, as indicated above, the appointing authority demonstrated that it utilized an objective selection method for all of the candidates that it interviewed. Indeed, an appointing authority is not precluded from using education as one factor in making an appointment. See In the Matter of Mahasen Adra-Halwani (MSB, decided October 5, 2005). Moreover, the Board notes that three of the provisional appointees to the title, who the appellants argue were provisionally appointed based on the DEP's flawed internal selection procedures, also possess Master's degrees, but were displaced from their provisional appointments because they did not score high enough on the competitive examination.

Consistent with N.J.A.C. 4A:4-4.8(a)3, an appointing authority has selection discretion under the "Rule of Three" to appoint a lower ranked eligible absent any unlawful motive. See In the Matter of Michael Cervino (MSB, decided June 9, 2004). Compare, In re Crowley, 193 N.J. Super. 197 (App. Div. 1984) (Hearing granted for individual who alleged that bypass was due to anti-union animus); Kiss v. department of Community Affairs, 171 N.J. Super. 193 (App. Div. 1979) (Individual who alleged that bypass was due to sex discrimination afforded a hearing). The appellants' arguments that the appointing authority violated the "Rule of Three" and that the appointments of the four highest ranking females were discriminatory are baseless.

Regarding Billah's "unexplained promotion to Section Chief," it is noted that Billah was admitted to a promotional examination for Section Chief, Waste Management (PS5209G) and ranked 4A on the resultant list. Billah was properly appointed to this title from another certification and his name was removed from consideration from the subject certification. In this regard, Billah's admission to another examination and appointment to a different position from a separate certification have no bearing on the appellants' case. Since Billah's name was removed from the list based on his appointment, all of the individuals ranked ninth on the list (Disbrow, Edwards, Nader and Weinckoski) were reachable for appointment. A review of the record demonstrates that the appointing authority properly disposed of the certification in accordance with all regulatory guidelines and the appellants have not shown that their non-selection was based on an invidious reason.

Finally, it must be noted that the appellants did not have a vested right to the Hazardous Site Mitigation Specialist 1 positions. Individuals whose names merely appear on a list do not have a vested right to appointment. See In re Crowley, supra[;] Schroder v. Kiss, 74 N.J. Super. 229 (App. Div. 1962). The only interest that results from placement on an eligible list is that the candidate will be considered for an applicable position so long as the eligible list remains in force. See Nunan v. Department of Personnel, 244 N.J. Super. 494 (App. Div. 1990). Accordingly, the appellants have failed to meet their burdens of proof in these matters.

On appeal, appellants raised the same arguments they presented to the Board.

The "judicial capacity to review administrative agency decisions is limited." Karins v. City of Atl. City, 152 N.J. 532, 540 (1998). A decision by the Board should not be disturbed unless "the Board's action was arbitrary, capricious or unreasonable." Ibid. The Board's decision must be affirmed if "the findings made could reasonably have been reached on sufficient credible evidence presented in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Hammond v. Monmouth County Sheriff's Dep't, 317 N.J. Super. 199, 203 (App. Div. 1999) (internal quotation and citation omitted).

The New Jersey Constitution provides that "[a]ppointments and promotions in the civil service of the State, and of such political subdivisions as may be provided by law, shall be made according to merit and fitness to the ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive . . . ." N.J. Const, art. VII, § 1, ¶ 2. In furtherance of this mandate, the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6, delegates broad power over all aspects of a career service to the Commissioner of the DOP and to the Board. See N.J.S.A. 11A:2-6 and N.J.S.A. 11A:2-11.

The Commissioner is charged with the responsibility of "announc[ing] and administ[ering] . . . examinations . . . [to] test fairly the knowledge, skills and abilities required to satisfactorily perform the duties of a title . . . ." N.J.S.A. 11A:4-1. The DOP must not only establish jobs, but also set qualifications for those jobs, administer tests to fill those jobs, and then oversee and administer the selection process. To this end, the Board was granted the power to "[a]dopt and enforce rules to carry out this title and to effectively implement a comprehensive personnel management system." N.J.S.A. 11A:2-6d.

As part of the examination system, the Commissioner, through the DOP, establishes and applies uniform minimum standards for determining the eligibility of each applicant for competent and promotional examinations. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 392-93 (1983). Accordingly, the Board adopted N.J.A.C. 4A:4-2.6, which enumerates necessary requirements a candidate must meet to establish whether he or she is eligible for a promotion. Among other requirements, the regulation provides that candidates for a promotional examination have one year of continuous, permanent service in a title to which the examination is open. N.J.A.C. 4A:4-2.6(a)1. The Board, however, has the authority to relax the regulations for good cause in particular situations, on notice to the affected parties, to effectuate the purpose of the Civil Service Act. N.J.A.C. 4A:1.1.2(c).

In light of the Board's authority and expertise, a reviewing court will not interfere with the DOP's exercise of authority unless its determination "'is patently incompatible with the language and spirit of the law.'" In re Hudson County Prob. Dep't, 178 N.J. Super. 362, 371 (App. Div. 1981) (quoting Walsh v. Dep't of Civil Serv., 32 N.J. Super. 39, 44 (App. Div. 1954), certif. granted, 17 N.J. 182 (1955) (subsequently dismissed)). Moreover, "a 'strong presumption of reasonableness attaches'" to a decision of a board. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)), certif. denied, 170 N.J. 85 (2001). Accordingly, we will uphold a board's decision if the evidence supports the decision, even if we may question the wisdom of the decision or would have reached a different result. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001). Courts "have a strong inclination to defer to agency action provided it is consistent with the legislative grant of power." Lewis v. Catastrophic Illness In Children Relief Fund, 336 N.J. Super. 361, 370 (App. Div.), certif. denied, 168 N.J. 290 (2001).

We have considered each of appellants' arguments in light of the record, the applicable law, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated by the Board in its written decision of October 5, 2006. R. 2:11-3(e)(1)(D). Governed by the above standards, we are satisfied that the Board's decision, denying appellants' appeal challenging the decision of the DEP to bypass them in selecting among candidates eligible for appointment to the position of HSMS1 was neither arbitrary, capricious, or unreasonable. Appellants have presented no "good cause" reason warranting this court to interfere with the Board's decision. Nevertheless, we add the following comments.

Appellants argue that their request for reconsideration of the Board's one-time rule relaxation of the one-year supervisory experience eligibility requirement for the HSMS1 title was not untimely. Appellants contend that had they been selected to fill one of the eight positions, their objections to the rule relaxation would have been moot. Appellants assert that because they were not legally wronged until they were bypassed for promotion, that had they appealed to the Appellate Division from the July 28, 2005 Board decision as a final administrative action, that this court "most likely would have dismissed the appeal as moot since the appellants at that time would not have been able to demonstrate any legally cognizable harm." We disagree.

The Board issued its decision, granting the DEP's request for the one-time relaxation of the one-year supervisory experience eligibility requirement on July 28, 2005, 139 days before appellants submitted their request for reconsideration of that decision. In its July 28, 2005 decision, the Board concluded, in part, that it would be "appropriate to waive the supervisory requirement for the subject examination," in light of the contradiction between the open competitive requirements in the job specifications definitions section, particularly as it pertained to supervisory experience. Moreover, the Board determined that the request for the rule relaxation should be granted because the HSMS1 title series was not previously utilized in the Division, and therefore, no employees within the Division were permanent in the lower level in-series HSMS2 title.

The July 28, 2005 decision of the Board was not an advisory decision, but rather one which "ordered that [the request for the one-time rule relaxation of the one-year supervisory experience eligibility requirement] be granted." Because some administrative decisions are not "as in the case of formally entered judgments, facially identifiable as final actions," case law requires that an administrative final decision contain other indicia to inform interested parties that it is a final decision for purpose of appeal. Pressler, Current N.J. Court Rules, comment 3.3 on R. 2:2-3 (2008); In re Cafra Permit No. 87-0959-5, 152 N.J. 287, 299 (1997) (holding that "[t]he decision also should give unmistakable notice of its finality").

Here, the Board's decision of July 28, 2005, contains adequate factual findings and legal conclusions to satisfy the finality requirements of Rule 2:2-3(a)(2). In addition, the decision is captioned "Final Administrative Action of the Merit System Board" and states on the last page thereof, that "[t]his is the Final Administrative determination in this matter. Any further review should be pursued in a judicial forum." Accordingly, appellants were on notice that the Board's decision was final and any disagreement with that decision should have been challenged within forty-five days of its entry by either the filing of an appeal to this court, R. 2:4-1(b), or by the filing of an application for reconsideration to the Board. R. 2:4-3(b). Having not filed their request for reconsideration within forty-five days of the date of the Board's July 28, 2005 decision, the Board properly denied the same. Moreover, on the merits of the July 28, 2005 decision, we conclude that the Board correctly granted the rule relaxation for the reasons expressed in its decision. R. 2:11-3(e)(1)(D).


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