On appeal from the Civil Service Commission, Docket No. 2011-2389.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2012
Before Judges Yannotti, Harris, and Hoffman.
Appellant Luis Pastoriza is the municipal clerk of the City of Camden (the City). He appeals from the April 8, 2011 final administrative determination of the Civil Service Commission (the Commission), which rejected his claim that the City's temporary layoff plan violated his rights under N.J.S.A. 40A:9-165. We reverse.
Pastoriza is the City's tenured municipal clerk.*fn1 He was appointed by the City's Council pursuant to N.J.S.A. 40:69A-38 and performs the powers and duties outlined in Section 5-12 of the Code of the City of Camden.
On March 26, 2010, the City's Mayor formally proposed a temporary layoff plan for "non-uniformed employees" in its Departments of Administration, Finance, Law Department, Development and Planning, Code Enforcement, Public Works, Municipal Court, The Mayor's Office, City Clerk, and City Council. The Mayor expressed the City's intention "to institute temporary layoffs in the form of mandatory furloughs for economic, efficiency and other related reasons." Twenty-six dates were proposed, beginning on June 4, 2010, and continuing through November 24, 2010. Pastoriza was one of twelve employees in the City Clerk department to be included in the plan. The plan was approved by the Commission on April 9, 2010.
On April 15, 2010, Pastoriza, together with the City's tax assessor and tax collector, delivered a letter to the Mayor, entitled "Notice of Objection," protesting "the reduction in salary that would result from the temporary layoffs (furloughs) for [their tenured] positions." The three signatories specifically identified N.J.S.A. 40A:9-165 as authority to demand being excluded from the layoff plan. The next day, formal furlough notices were sent to all affected employees by Camden's business administrator.
On April 28, 2010, the City Council adopted a "Resolution Designating Furlough Days," which approved the City's temporary layoff plan insofar as it applied to "members of City Council as well as the Municipal Clerk and officers and employees of the Municipal Clerk's Office." On May 26, 2010, Pastoriza filed an action in lieu of prerogative writs in the Law Division against the City challenging his mandatory layoff.
As the City and the Commission both acknowledge, the employees affected by the plan were subjected to only a temporary layoff. None of them were permanently dismissed. Thus, the temporary layoff functioned as leave without pay. The arithmetic result was a tangible reduction of Pastoriza's income for the 2010 calendar year.
After the matter was consensually transferred by the Law Division to the Commission, the parties presented their written arguments. On April 8, 2011, the Commission issued its determination, stating that "there is nothing in N.J.S.A. 40A:9-165 which prohibits a [municipal clerk] from being laid off." The Commission went on to declare that "N.J.S.A. 40A:9-165 does not provide any special protections to the Municipal Clerk, who is considered an unclassified employee pursuant to Title 11A." Thus, the Commission denied Pastoriza's appeal because the statute "does not specifically prohibit the ability of an appointing authority from laying off its employees or officers . ., which would include the Municipal Clerk." This appeal ensued.
Our role in reviewing agency decisions is quite limited. In re Stallworth, 208 N.J. 182, 194 (2011). "We accord a strong presumption of reasonableness to such decisions and do not substitute our judgment for the wisdom of agency action if that action is statutorily authorized and not arbitrary and unreasonable." A.M.S. ex rel A.D.S. v. Bd. of Educ. of Margate, 409 N.J. Super. 149, 159 (App. Div. 2009). As long as an agency decision is contemplated under its enabling legislation, the action ...