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In re Fasanella

October 5, 2009

IN THE MATTER OF JOHN FASANELLA


On appeal from the Merit System Board, Department of Personnel, Docket Nos. 2008-1414 and 2008-3053.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically May 26, 2009

Before Judges Axelrad, Messano and Kestin.

John Fasanella, a sheriff's officer in Mercer County, appeals from a decision of the Merit System Board (Board) upholding adverse administrative determinations regarding a promotional examination for lieutenant. Fasanella argues that the eligibles list resulting from the initial examination should have been conditional pending his return from active military service, that his name should have been added to the eligibles list as first-ranked following the result of a make-up examination in which he participated after his return from active military duty, and that he was entitled to veteran's status in that listing. We affirm in part, reverse in part, and remand.

In its ruling on a consolidated matter, the Board also upheld a determination by the Division of Selection Services that Fasanella was ineligible for a captain's examination because he did not hold a permanent position in the title to which that examination was open. In his brief in the instant matter, Fasanella notes his withdrawal of the appeal from the latter decision.

The promotional examination for lieutenant was announced with a closing date of December 21, 2004. Fasanella was one of nine individuals who applied for and were admitted to that examination. The examination was conducted in written form on June 9, 2005; however, Fasanella, who was on active military duty from May 12, 2004 to June 25, 2006, was unavailable to take the examination on the date it was given.

The June 9, 2005 examination resulted in a four-name eligibles list, promulgated on September 29, 2005, with an expiration date of September 28, 2008. The first-ranked person on that list, a non-veteran, was appointed effective December 1, 2005.

On July 24, 2006, shortly after Fasanella's return from active military duty, the Department of Military and Veterans Affairs granted his application for veteran's status. He made several requests of the Department of Personnel (DOP) to schedule his make-up examination for the lieutenant position. His examination for that position occurred in June 2007. A memorandum from DOP, dated September 10, 2007, noted an "employment list change" with Fasanella ranked first on the list for Sheriff's Officer--Lieutenant in Mercer County with veteran's status. An October 15, 2007 memorandum from the Sheriff's Office to Fasanella advised that the ranking had been modified as "for future certifications only." Fasanella promptly filed his internal appeal from the latter determination.

Subsequently, DOP notified Fasanella that his veteran's status designation had been incorrect and that the eligibles list had been corrected to reflect his rank on the then-existing list as "A1 non-veteran." Fasanella appealed that decision.

In considering the issues raised in the two appeals, the Board rejected Fasanella's contention that he was entitled to the lieutenant appointment because he was, ultimately, first on the eligibles list and had veteran's status. The Board determined that Fasanella did not qualify for veteran's status at the time the list was certified. The Board also decided that the latitude conferred on the appointing authority by operation of the "rule of three" validated the appointment of the person who had been designated, notwithstanding that he was second on the list after Fasanella's name had been added.

On this appeal, Fasanella contends the Board was mistaken and he is entitled to the lieutenant appointment. He argues, inter alia, that the Board erred in its interpretation and application of the rights conferred by statute protecting persons on leave for active military service, that "the eligible[s] list . . . should have been labeled as 'conditional' pending [his completion of] the examination" upon his return from active military duty, that such errors as occurred "may be corrected at any time and may result in a change in ranking," and that he "is entitled to veteran['s] status."

On oral argument of the appeal, counsel for Fasanella informed us that he had applied for retirement as of July 31, 2009. The issues before us, therefore, resolve themselves to questions of back-pay and benefits entitlement in the event Fasanella ultimately prevails.

In reviewing the decision of an administrative agency, we are bound to accord "substantial deference to the agency's expertise and superior knowledge of [its subject matter] field," In re Herrmann, 192 N.J. 19, 28 (2007), and its interpretation and implementation of the statute and regulations it is charged with enforcing, see In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). The usual deference is not required, however, where the agency, in rendering its decision, did not follow the law, failed to base its findings and conclusion on substantial evidence in the record, or otherwise acted arbitrarily, capriciously or unreasonably. See Herrmann, supra, 192 N.J. at 27-28; Atlantic City Med. Ctr. v. Squarrell, 349 N.J. Super. 16, 22 (App. Div. 2002). In conducting our ...


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