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In the Matter of Noah Formey


July 30, 2012


On appeal from New Jersey Civil Service Commission, Docket Nos. 2010-4062, 2010-4063, 2010-4064.

Per curiam.


Submitted July 17, 2012

Before Judges Sabatino and Kennedy.

Noah Formey, Robert Brunton and Brian Zengewald appeal from the January 21, 2011 final agency decision of the Civil Service Commission (CSC) denying reconsideration of an earlier decision of the CSC which, in turn, denied a challenge to their layoffs from employment with Union County. Appellants contend that the CSC erred when it rejected their claim that Union County was equitably estopped from laying them off from their positions as "Engineering Aide" because the county allegedly misled them into believing that they had been permanently appointed as "Traffic Maintenance Workers", a position for which appellants claim they had more favorable lateral and demotional displacement layoff rights under N.J.A.C. 4A:8-2.2.


Appellants were hired in 1996 by Union County as engineering aides within the Department of Engineering and Public Works. In 1999, all engineering aides were moved to a traffic maintenance facility while a new engineering facility was being constructed. During this period, appellants reported to the traffic maintenance "Supervisor" and performed mostly traffic maintenance duties. Both the Bureau of Traffic Safety and the Division of Engineering are within the Department of Engineering and Public Works, however.

By 2000, the new engineering facility had been completed, but appellants were advised they would continue working at the traffic maintenance facility and would perform traffic maintenance duties. They claimed they were advised in 2001 that Union County created a "new title" for them to be known as "Engineering Aide/Traffic" and adjusted their hours and salaries.

In October 2001, a "Request for Personnel Action/Interim Profile" was executed for each appellant designating their title as "Engineering Aide/Traffic", setting forth their salaries and a forty hour work week. The form, in the section for "Explanations" stated, "Changes made to title and hours as well as salary per Council 8 Agreement." Frank Dann, who signed as "Department Head" on Zengewald's form, stated the purpose of the form was to "solidify [appellants'] permanent transfer from the Bureau of Engineering to the Bureau of Traffic Maintenance to the position of Engineering Aide/Traffic." It was Dann's "belief" that after submission of the form, appellants were working under the title of "Traffic Maintenance Workers."

The Council 8 and Union County Collective Negotiations Agreement (CNA) specifically provided in Article 5, Section 4 that, "Engineering Aides assigned to the Traffic Bureau shall work 40 hours per week and shall receive a pro rata adjustment . . . . The Classification shall be Engineering Aide/Traffic 40 hours." The salary range memorialized in appellants' 2001 request for personnel action forms was the salary range for "Engineering Aide/Traffic" set forth in the CNA. This salary differed from the salary range set forth in the CNA for the title of "Traffic Maintenance Worker."

Appellants contend that they thereafter worked exclusively within the Traffic Bureau, were always included in meetings and notices for "Traffic Bureau Staff" and performed the services ordinarily undertaken by those with the title of "Traffic Maintenance Workers." They assert that their actual title was not changed, however, because Union County failed to submit to the CSC the 2001 request for personnel action forms.

In the spring of 2009, Union County announced it would implement a layoff of employees within three of its departments, including the Department of Engineering and Public Works. Those employed with the title of "Engineering Aide" were among those identified for layoffs. Appellants thereupon requested the CSC to undertake a position classification review of their jobs and title. In April 2009, the CSC determined that Formey and Bruton were performing the duties of the title "Traffic Enumerator/Traffic Maintenance Worker" and that Zengewald was performing the duties of the title "Traffic Maintenance Worker." Each was determined to "be serving provisionally in the title" noted, effective April 11, 2009, but the CSC found that such determination would not affect their layoffs from the title "Engineering Aide."

Appellants then appealed their layoffs to the CSC which denied their claims in a detailed decision dated April 30, 2010. In August 2010, appellants sought reconsideration of that decision and submitted additional materials. They argued, among other things, that Union County should be equitably estopped from laying them off as "Engineering Aides" because it failed to submit the personnel action forms in 2001, and for years thereafter appellants performed all the tasks pertinent to the title of "Traffic Maintenance Worker."

In a lengthy final agency decision dated January 21, 2011, the CSC rejected these arguments and determined that appellants had not presented a sufficient basis to justify a retroactive change in title. With respect to the estoppel argument, the CSC stated, in pertinent part:

Moreover, the petitioners argue that, pursuant to the Doctrine of Equitable Estoppel, they should not have been displaced in light of the appointing authority's failure to file the proper paperwork . . . regarding their title changes. The petitioners state that they "should not be forced to suffer the consequences of clerical and procedural errors when for the past nine years or more they were part of the Traffic Maintenance Bureau performing all the tasks and duties of the position." They contend that they completed Request for Personnel Action/Interim Profile forms, which indicated that their appointments were permanent. In this regard, the forms state that "changes made to Title and hours as well as salary per Council 8 Agreement," effective June 1, 2001 and indicate that the box for "Permanent Appointment" was marked. However, these forms and the other documentation that the petitioners submitted listed their titles as Engineering Aides/Traffic. Further, the petitioners assert that they were never notified that it was necessary for them take an examination for Traffic Maintenance Worker in order to obtain permanent status. Zengewald notes that despite not being advised of this requirement, he took the examination for Traffic Maintenance Worker (C6000E), Union County, and appeared on the eligible list. He indicates that he was not taken "off the list" since he "assumed this was because he was properly classified in the title of Traffic Maintenance Worker."

The CSC concluded:

[T]he mere appointment of an individual to a title does not entitle the individual to permanent status and layoff rights flow only from an employee's permanent title . . . .

[H]ad Zengewald truly believed that his title changed to Traffic Maintenance Worker in 2001 and he was permanent, then there would not have been a need for him to file for the examination (C6000E), which had a closing date of July 21, 2003. As for Formey and Brunton, while they claim that they were never advised that they needed to be tested, the fact remains that no Civil Service law or regulation provides that permanent status be afforded to employees for performing out-of-title duties.

This appeal followed.


Appellants assert the CSC's rejection of their estoppel argument was arbitrary, capricious and unreasonable and that its factual determinations are not supported by substantial credible evidence in the record. We have considered these arguments in light of the record and the applicable law and we affirm.

We begin by stating some firmly established principles that guide our analysis. Appellate review of an administrative agency decision is limited. In re Herrmann, 192 N.J. 19, 27 (2007); In re Carter, 191 N.J. 474, 482 (2007). "Where . . . the determination is founded upon sufficient credible evidence seen from the totality of the record and on that record findings have been made and conclusions reached involving agency expertise, the agency decision should be sustained." Gerba v. Bd. of Trs. of the Pub. Emps. Ret. Sys., 83 N.J. 174, 189 (1980). An administrative agency's determination is presumptively correct, and we will not substitute our own judgment of the facts for that of the agency if the agency's findings are supported by sufficient credible evidence and are not arbitrary, capricious or unreasonable. See Carter, supra, 191 N.J. at 482; Bd. of Educ. of Englewood Cliffs v. Bd. of Educ. of Englewood, 333 N.J. Super. 370, 380 (App. Div.), certif. granted, 166 N.J. 604 (2000); Gerba, supra, 83 N.J. at 189. The burden is on the party opposing the action to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).

Under the arbitrary and capricious standard, our scope of review is guided by three major inquiries: (l) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the agency clearly erred in reaching a result that was either arbitrary, capricious or unreasonable. In re Stallworth, 208 N.J. 182, 194 (2011); Carter, supra, 191 N.J. at 482-83. When an agency decision meets the above criteria, we accord substantial deference to the agency's fact-finding and legal conclusions, being mindful of the agency's "'expertise and superior knowledge of a particular field.'" Circus Liquors, Inc., v. Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). See also Herrmann, supra, 192 N.J. at 28. Consequently, we will not substitute our own judgment for the agency's even though we might have reached a different result. Stallworth, supra, 208 N.J. at 194; Herrmann, supra, 192 N.J. at 27-28.

Appellants claim that the CSC improperly rejected their claim for equitable estoppel and we briefly set forth the principles governing equitable estoppel claims.

"Estoppel is an equitable doctrine, founded in the fundamental duty of fair dealing imposed by law." Casamasino v. City of Jersey City, 158 N.J. 333, 354 (1999). The doctrine is designed to prevent injustice by not permitting a party to repudiate a course of action on which another party has relied to his detriment. Mattia v. Northern Ins. Co. of New York, 35 N.J. Super. 503, 510 (App. Div. 1955). The doctrine is invoked in "the interests of justice, morality and common fairness." Palatine I v. Planning Bd., 133 N.J. 546, 560 (1993) (quoting Gruber v. Mayor of Raritan Township, 39 N.J. 1, 13 (1962)) . . . . [T]o establish equitable estoppel, plaintiffs must show that defendant engaged in conduct, either intentionally or under circumstances that induced reliance, and that plaintiffs acted or changed their position to their detriment. Miller v. Miller, 97 N.J. 154, 163 (1984). [Knorr v. Smeal, 178 N.J. 169, 178 (2003).]

"Equitable estoppel is rarely invoked against a governmental entity, Cipriano v. Department of Civil Service, 151 N.J. Super. 86, 91 (App. Div. 1977), particularly when estoppel would 'interfere with essential governmental functions.'" O'Malley v. Dep't of Energy, 109 N.J. 309, 316 (1987) (quoting Vogt v. Borough of Belmar, 14 N.J. 195, 205 (1954)). Equitable principles of estoppel may be applied against a public entity only "where the interests of justice, morality and common fairness clearly dictate that course." Ranchlands, Inc. v. Twp. of Stafford, 305 N.J. Super. 528, 538 (App. Div. 1997), aff'd, 156 N.J. 443 (1998) (internal citations and quotation marks omitted).

Guided by these principles, we discern no error in the CSC's final agency decision that warrants appellate intervention. The CSC thoroughly considered the facts and arguments of law raised by the appellants and its decision was neither arbitrary, capricious or unreasonable, nor was it unsupported by the evidence in the record. We affirm essentially for the reasons set forth by the CSC in its final agency decision and we determine that the arguments raised by appellants do not require another written decision. R. 2:11-3(e)(1)(D),(E). We add only the following brief comments.

It is clear that appellants were first appointed as "Engineering Aides" and that the permanent title each held at the time of the layoffs was "Engineering Aide," as well. The 2001 personnel actions forms did not indicate appellants were being appointed to the title of "Traffic Maintenance Worker," but clearly specified their classification as "Engineering Aide/Traffic," a classification required by the CNA for union members serving in the title of "Engineering Aide" while assigned to the traffic bureau.

It is immaterial that appellants were included as "Traffic Bureau staff" in meetings and notices, because they were assigned, as "Engineering Aides," to serve within that bureau. Further, the personnel evaluation forms provided by appellants did not list them as holding any title other than "Engineering Aide/Traffic."

Additionally, it is telling that appellants first sought performance classification reviews only after being notified of the upcoming layoffs. While they claimed they thought they had been permanently appointed in the title of "Traffic Maintenance Worker" up to that point, there is an almost complete dearth of evidence in the record which would objectively support that supposed belief. Also, appellants have no cause to complain that Union County did not submit the personnel action forms to the CSC since those forms, on their face, did not request a change in title.



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