On appeal from the Civil Service Commission, Docket No. 2010-853.
The opinion of the court was delivered by: Messano, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Espinosa and Kennedy.
The opinion of the court was delivered by MESSANO, P.J.A.D.
On July 27, 2009, the Civil Service Commission (the CSC) issued its final administrative action: 1) denying the enforcement request of the Division of State Human Resource Management (SHRM); and 2) denying Martin Carluccio's appeal from the Motor Vehicle Commission's (the MVC) decision to remove his name from a list of eligible candidates based upon an unsatisfactory background investigation.*fn1 Carluccio subsequently sought reconsideration, and, on June 1, 2010, the CSC denied the request. This appeal followed.
The facts and procedural history are not in dispute. On October 30,
1996, when he was thirty-years old, Carluccio was arrested and charged
with aggravated assault and possession of a weapon for an unlawful
purpose. On or about August 2, 1998, after pleading guilty to
third-degree attempted aggravated assault, he was sentenced to a
five-year term of probation. His probation was revoked on March 24,
2000, and Carluccio was sentenced to three years in prison.*fn2
He remained incarcerated from March 24, 2000 to January 25,
2001, and was on parole supervision from that date until June 10,
2002. The record contains a letter from a senior parole officer, dated
November 3, 2004, indicating that Carluccio complied with all
conditions of parole, remained arrest-, drug- and alcohol-free, and
his overall evaluation was "very good."
Carluccio was among 334 eligible candidates for the position of "Safety Specialist Trainee, DMV" on a civil service list promulgated on November 15, 2007.*fn3 Carluccio's name appeared on three certifications, one each for Morris, Monmouth and Camden counties. Carluccio was offered the position contingent upon a criminal background check.
On February 13, 2008, the MVC advised Carluccio that he was disqualified based upon information revealed "from th[e] record check." On February 14, the MVC further advised Carluccio that it would "defer any further processing" because of the "criminal conviction that ha[d] not been expunged by a Court," but explained that Carluccio was "not automatically disqualif[ied] . . . if [he could] affirmatively demonstrate clear and convincing evidence of . . . rehabilitation." The MVC indicated it would consider the eight factors contained in N.J.S.A. 39:2A-32(f), and invited Carluccio to respond and submit "any information or evidence of rehabilitation."
In his written response, Carluccio stated that his 1998 conviction resulted from "a domestic incident that [he] allowed to get out of control due to alcohol and immaturity." Carluccio offered as proof of his rehabilitation: a Certificate of Good Conduct issued by the Parole Board in December 2007, recognizing that his employment as a Code Enforcement Official "would not be incompatible with the welfare of society," and a letter from the Parole Board indicating the certificate "may be applied to your proposed employment as a Safety Specialist"; a commercial driver's license with a Hazardous Material Endorsement, along with letters from the federal Transportation Security Administration approving Carluccio's application for the endorsement and its renewal after finding he posed no security threat; a certificate of membership in the Italian-American Police Society of New Jersey; a diploma from the Chubb Institute issued in April 2002; an Inspector's License issued by the MVC for employment by a private contractor, Parsons, that operated motor vehicle inspection stations from 2002 to 2005, and letters of recommendation from a supervisor who worked for the MVC and Carluccio's sister, who was also employed by the MVC; and several letters of recommendation from friends in the law enforcement community. Carluccio cited provisions of the Rehabilitated Convicted Offenders Act, N.J.S.A. 2A:168A-1 to -16 (the RCOA), in further support.
The MVC responded by disqualifying Carluccio from employment "based upon the nature and responsibility of the position of Safety Specialist Trainee . . . as its role is to provide direct customer service to the citizens and businesses of the State of New Jersey." The MVC advised it would request Carluccio's name be removed from the certified list "due to the results of [his] criminal history background check."
The MVC submitted its request to SHRM, indicating Carluccio was disqualified "pursuant to [N.J.S.A. 39:2A-32(c)]" based upon his prior criminal history. The MVC further explained, "[h]ad Mr. Carluccio been employed with the MVC at the time of this conviction, he would have had to forfeit his employment pursuant to [N.J.S.A.] 2C:51-2a(1). That being the case, [his] history renders Mr. Carluccio unemployable at the MVC."
Carluccio appealed, and, on May 13, 2008, SHRM notified Carluccio that it denied the MVC's request, his "name remain[ed] active on the eligible list" and his "appeal [wa]s moot." SHRM also notified the MVC that it "ha[d] failed to provide justification as to how [Carluccio's] criminal record adversely relate[d] to a position that involves the inspection of motor vehicles and the administration of the driver's examination." SHRM instructed the MVC to include Carluccio on the three certifications, but the MVC refused. SHRM referred the matter to the CSC for enforcement, and Carluccio filed a direct appeal with the CSC.
Before the CSC, the MVC alleged SHRM "did not address the disqualification of Mr. Carluccio's employment based on N.J.S.A. 39:2A-32." The MVC maintained:
[D]isqualification and rejection of Mr. Carluccio under the provisions of Title 39 [was] justified . . . . N.J.S.A. 2A:168A-1 and N.J.S.A. 2A:168-2 allow for the disqualification of an individual based on a prior criminal conviction, provided that the disqualification is based upon a law or rule or regulation or a prior conviction that adversely affects the individual[']s employment. Clearly, Title 39 is the statute that allows the [MVC] to disqualify Mr. Carluccio from employment, based on his serious prior criminal conviction that the [MVC] reasonably believes adversely affects his employment.
The MVC asserted that Carluccio's conviction was "'serious,'" occurred when he "was 30 years old," "not young and easily influenced," and, as a Safety Specialist Trainee, Carluccio "w[ould] have constant, daily contact with the customers the [MVC] is charged to serve." The MVC claimed that "Safety Specialists perform road tests for all New Jersey citizens seeking a driver license [and] . . . engage in the inspection of school buses and commercial buses." The MVC further noted that it had "gone to great lengths to improve its image, customer service and its security" and "c[ould not] take the chance to have its new found reputation discredited with an employee who was convicted of and served time for a crime that has a foundation in an 'assault and/or threat' to another person."
Carluccio filed a response contending that the MVC's "interpretation and application of [T]itle 39 [was] in error." He alleged that "the position . . . was in Inspection Services and not in Driver Testing," and he would "not give driving tests" nor be "involved in any way with the driving test process and therefore [would not be] 'directly or indirectly involved in the issuance or processing of driver's licenses, identification cards, driving records, or vehicle registrations and titles.'" Carluccio further alleged that "while [he] was employed at Parsons" pursuant to a license issued by the MVC that was "renewed in 2004, 2006, and 2008," he "worked on State property and had constant, extensive contact with customers." Carluccio also argued that the MVC failed to consider the impact of the RCOA.
In its July 27, 2009, decision, the CSC rejected Carluccio's argument that N.J.S.A. 2A:168A-3 "preclude[d]" the MVC from "disqualifying or discriminating" against him in light of his Certificate of Good Conduct and MVC-issued inspector license. The CSC concluded that N.J.S.A. 2A:168A-3 was "normally applied in situations where the agency issues a license or certification so that an individual may engage in a particular type of employment"; thus, the statute did not apply because the MVC "[wa]s acting as a public employer," and "not . . . as a licensing agency." The CSC further found that, while pardon or expungement prohibits an appointing authority from rejecting an eligible person based upon a conviction, Carluccio was neither pardoned nor was his conviction expunged.
The CSC additionally found that N.J.S.A. 2A:168A-9 applied, which states that "[a] certificate . . . shall be presumptive evidence of . . . rehabilitation when considered in regard to public employment . . . ." However, pursuant to N.J.S.A. 2A:168A-7(c), the title of Safety Specialist Trainee was "exempt from being considered 'public employment' . . . since it is a position that has access to sensitive information that could threaten the public health, welfare, and safety."
The CSC cited the MVC's public responsibilities, including "fraud detection, training and monitoring" that required "[p]roper identification . . . at all phases of the licensing and driver testing process" and comparison of "DMV records . . . with Social Security Administration records in order to verify the validity of Social Security numbers in [MVC] databases." The CSC specifically noted that "the ability to have access to personal information of customers, including social security numbers, and the responsibility of ensuring the identity of the customers of the MVC, by an individual who ha[d] a conviction and . . . spent time in prison [was] particularly troubling." The CSC further determined that "other then [sic] the Certificate of Good Conduct, [Carluccio] failed to provide any information as to his rehabilitation," and hiring Carluccio "would violate the public trust."
Carluccio sought reconsideration and argued that the CSC "relied on incorrect information in determining what the duties of a Safety Specialist Trainee . . . were." In support, Carluccio submitted letters from his sister and an MVC supervisor which disputed the actual duties of a Safety Specialist Trainee and claimed that such employees "do not have access to personal data." Carluccio also submitted a certificate issued by the Parole Board in June 2009 (the 2009 certificate) pursuant to N.J.S.A. 2A:168A-8, stating that the Parole Board "[had] been responsible for [his] supervision . . . [and had] determined that [Carluccio] ha[d] achieved a degree of rehabilitation to indicate that his engaging . . . as a . . . Safety Specialist would not pose a substantial risk to public safety, would assist in his successful reintegration and [was] consistent with the public interest." The MVC countered by arguing that "it ...