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In the Matter of Janice Guy

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 1, 2011

IN THE MATTER OF JANICE GUY, ESSEX COUNTY CORRECTION OFFICER.

On appeal from a Final Agency Decision of the Civil Service Commission, Docket Nos. 2008-4634 and 2008-3152.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: February 16, 2011

Before Judges Fisher, Sapp-Peterson and Fasciale.

Janice Guy appeals from an order and final administrative decision of the Civil Service Commission (Commission) that barred her from sitting for the promotional examination for County Correction Sergeant (promotional exam) because she did not possess the required three years of continuous permanent service.*fn1 We affirm.

Guy was permanently appointed as a County Correction Officer in October 2002. On March 29, 2004, she was transferred to the Department of Corrections in lieu of a layoff from her position. Three months later, Essex County rehired her as a provisional employee. Guy was rehired provisionally because by June 2004 she had not completed her three-year working test period when she was transferred and therefore could not be placed on a special reemployment list. Guy was not classified as a permanent employee again until August 11, 2005.

The promotional exam is open to employees who have an aggregate of three years of continuous permanent service.

N.J.A.C. 4A:4-2.6(b) provides "applicants for promotion from entry level law enforcement . . . shall have three years of continuous permanent service in a title to which the examination is open . . . ." Guy was not eligible to take the promotional exam because she failed to meet this requirement as of November 21, 2007, the closing date. Guy appealed to the Merit System Board (the Board), arguing that she was permanently appointed in 2002 and that she was never listed as a provisional employee.

The Board determined that Guy was classified properly as a provisional employee in 2004 because she had not completed the three-year working test period when she was transferred. The Commission adopted the Board's initial decision on the merits and also found that Guy's request for reconsideration was untimely. Guy appealed to the Commission three years after the Board's decision.*fn2 N.J.A.C. 4A:2-1.6 provides that a request for reconsideration must be filed within forty-five days. Therefore, the Commission denied Guy the opportunity to sit for the promotional exam.

On appeal, Guy argues that she should have been classified as a permanent employee when she was rehired in June 2004.

The role of this court in reviewing an administrative agency's final determination is exceedingly limited. In re Taylor, 158 N.J. 644, 656 (1999).

The scope of review of an administrative decision is the same as that for an appeal in any non[-]jury case, i.e., whether the findings made could reasonably have been reached on sufficient credible evidence present 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.

[Ibid. (internal quotations and citations omitted).]

An appellate court is not permitted to "engage in an independent assessment of the evidence as if it were the court of first instance." Ibid. (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). If, in reviewing the agency's decision, this court finds sufficient credible evidence in the record and the inferences to be drawn therefrom, it must uphold the agency's decision even if the court would have reached a different result. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001); In re Taylor, supra, 158 N.J. at 657.

Therefore, this court will only disturb a final agency determination if it concludes that the decision was arbitrary and capricious. In re Holy Name Hosp., 301 N.J. Super. 282, 295 (App. Div. 1997) (citing Worthington v. Fauver, 88 N.J. 183, 204 (1982)). The arbitrary and capricious standard is essentially a rational-basis analysis. Worthington, supra, 88 N.J. at 204. "'Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of circumstances.'" Ibid. (quoting Bayshore Sewerage Co. v. Dep't Envtl. Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973), aff'd, 131 N.J. Super. 37 (App. Div. 1974)). A "determination predicated on unsupported findings is the essence of arbitrary and capricious action." In re Boardwalk Regency Corp., 180 N.J. Super. 324, 334 (App. Div. 1981), modified by 90 N.J. 361, appeal dismissed sub nom. Perlman v. Att'y Gen. of N.J., 459 U.S. 1081, 103 S. Ct. 562, 74 L. Ed. 2d 927 (1982). There is a strong presumption of an agency's reasonableness. In re Holy Name Hosp., supra, 301 N.J. Super. at 295. The burden of showing that an agency determination was arbitrary and capricious is on the party challenging it. Ibid.

We affirm substantially for the reasons expressed by the Commission in its thoughtful and detailed written opinion dated June 24, 2009. We add the following brief comments.

The Commission found correctly, by substantial, credible evidence, that Guy was ineligible to sit for the promotional examination. First, Guy's appeal to the Commission was untimely. N.J.A.C. 4A:2-1.6. Second, Guy had less than three years of continuous permanent service by November 21, 2007.

N.J.A.C. 4A:4-2.6(b). Thus, Guy could not be classified as a permanent employee when she was rehired because she had not completed her working test period. See N.J.A.C. 4A:1-1.3. Therefore, the Commission did not act arbitrarily or capriciously, but rather found by substantial, credible evidence that Guy failed to satisfy N.J.A.C. 4A:4-2.6(b) and correctly classified her as a provisional employee when she was rehired.

After a thorough review of the record and consideration of the controlling legal principles, we conclude that Guy's remaining arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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