January 16, 2013
IN THE MATTER OF THAKUR PERSAUD, HEALTH OFFICER (M0991L), PATERSON.
On appeal from the State of New Jersey Civil Service Commission, Docket No. 2011-1628. John J. Segreto argued the cause for appellant Thakur Persaud (Segreto, Segreto & Segreto, attorneys; Mr. Segreto, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 24, 2012
Before Judges Koblitz and Accurso.
Dr. Thakur Persaud appeals from the June 1, 2011 decision of the Civil Service Commission (Commission), which denied his appeal of his non-appointment from the eligible list for the position of Health Officer (M0991L) in the City of Paterson (Paterson). Persaud argues that he was permanently appointed Health Officer prior to the change in administration in Paterson and therefore could not be denied the job by the new administration. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Paterson is classified as a distressed city pursuant to the Special Municipal Aid Act, N.J.S.A. 52:27D-118.24 to -118.31. Therefore, in order to receive Special Municipal Aid,*fn1 Paterson entered into a Memorandum of Understanding (MOU) with the Division of Local Government Services (DLGS) in January 2010. Under the MOU, DLGS required Paterson to impose a hiring freeze or obtain a DCA waiver to overcome the prohibition.
Specifically, the MOU provides in pertinent part:
1. The City shall impose a hiring freeze on new employees. Any request for new positions (request of waiver) shall be made to the Director [of DLGS] with justification for the need of the new positions and the funding source for the positions. Advertising or posting for new employees is not permitted without prior approval by the Director of a waiver. This freeze shall include not [sic] replacements for persons who have left the employment of the municipality, whose positions are deemed as an essential service by the City and who are being replaced with no addition[al] appropriation to the budget, whose position is not filled at the time of the award.
BE IT FURTHER AGREED that the City, for any requested creation of a new position, shall prepare and submit a waiver to the Director for the hiring of any new personnel and/or the transfer of any employee . . . .
On January 20, 2009, Paterson provisionally appointed Trevor Weigle as its Health Officer at a salary of $98,000 pursuant to an approved waiver. The provisional appointment triggered the civil service examination process. N.J.S.A. 11A:4-5.
Persaud took the exam and ranked first, followed by Jadwiga Warwas and then Weigle. At the time, Persaud was actively serving as Paterson's Program Manager for Disease Prevention and Control, a position he held since 2005. Persaud is a Paterson resident, has a medical degree from Cuba, a Masters Degree in Public Health from Columbia University, a Ph.D. in Public Health in Epidemiology from Walden University, and is a licensed Health Officer by the State of New Jersey.
Paterson initially discontinued Weigle's provisional service effective July 1, 2010. On June 15, 2010, Mayor Jose Torres' personnel director sent a letter to the Commission, with a copy to Persaud, "reflecting the permanent appointment of Thakur Persaud as Health Officer for the City of Paterson effective July 1, 2010[,]" attaching a certification indicating Persaud's salary as Health Officer of $80,000, as well as an unapproved Department of Community Affairs (DCA) waiver.*fn2 The Commission updated its County and Municipal Personnel System (CAMPS) to reflect Persaud's appointment as Health Officer.*fn3
Persaud then received two letters from Mayor-elect Jeffery Jones, both dated June 30, 2010. One letter indicated:
[a]s soon as possible after being sworn in as Mayor of the City of Paterson on July 1, 2010, it is my intention to make official appointments of Acting Directors in City Departments according to the Code of Paterson, Section 5-8. My appointee will assume the duties of the office you have held, effective July 1, 2010.
The other letter indicated the same "intention to make official appointments of Acting Directors" but also proposes, "[e]ffective July 1, 2010 an invitation is hereby extended for you to continue working in your current job position/title for a period of 60 days; until such time that a permanent appointment is selected."*fn4 Jones also extended Weigle's provisional position as Health Officer for an additional sixty days, ending on August 31, 2010.
On September 3, 2010, Paterson notified the Commission that it would not appoint a Health Officer from an incomplete list and instead sought to enter into a shared services agreement with the County of Passaic. Paterson deemed the list incomplete because the second-ranked individual, Warwas, failed to notify Paterson of her interest in the position and was removed from the list.*fn5
Ultimately, the shared services agreement failed to materialize. On December 28, 2010, Paterson posted another job announcement for the position of Health Officer. Despite this appeal, which was then pending before the Civil Service Commission, on December 30, 2010, Persaud applied for the position of Health Officer. On March 24, 2011, the Commission issued the May 2011 certification for the Health Officer position, in which Persaud ranked number one.*fn6
In its June 1, 2011 written decision, the Commission found that because no DCA waiver was issued for the appointment of Persaud, no funding was appropriated. Therefore, "[s]ince  [Persaud]'s proposed appointment was never approved by the DCA or this agency, it cannot be recognized." The Commission also found that the December 2009 certification was an incomplete list due to Warwas' removal.
Our role in reviewing the decision of an administrative agency is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We will affirm an agency decision so long as it is supported by the evidence, even if we may question the wisdom of the decision or would have reached a different result. Ibid.
"A 'strong presumption of reasonableness attaches'" to an agency decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) (citation omitted), certif. denied, 170 N.J. 85 (2001). With respect to factual findings, agency findings "'are considered binding on appeal when supported by adequate, substantial and credible evidence[.]'" In re Taylor, 158 N.J. 644, 656-57 (1999) (quoting Rova Farms Resort Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) and citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).
We will reverse an agency's judgment if we find that the agency's decision is "'arbitrary, capricious, or unreasonable, or  not supported by substantial credible evidence in the record as a whole.'" Stallworth, supra, 208 N.J. at 194 (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
In determining whether an agency's action is arbitrary, capricious or unreasonable, we must examine:
"(1) whether [it] violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." [Ibid. (quoting In re Carter, 191 N.J. 474, 482-83 (2007)).]
The burden of proving that an agency action is arbitrary, capricious, or unreasonable is on the challenger. Bueno v. Bd. of Trs., 422 N.J. Super. 227, 234 (App. Div. 2011) (citing McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002)).
Further, we "should give considerable weight to an agency's interpretation of a statute the agency is charged with enforcing." G.S. v. Dep't of Human Servs., 157 N.J. 161, 170 (1999). "[H]owever, [we] are not bound by an agency interpretation of a strictly legal issue . . . when that interpretation is inaccurate or contrary to legislative objectives." Ibid. (citation omitted).
Persaud first argues that the Commission erroneously concluded that, "this position, even if vacant, was not funded." Relying on Local Budget Law, N.J.S.A. 40A:4-57, Persaud asserts that Paterson was required to appropriate money for the position in order to appoint Weigle as the provisional Health Officer. Under the statute, [n]o officer, board, body or commission shall, during any fiscal year, expend any money . . ., incur any liability, or enter into any contract which by its terms involves the expenditure of money for any purpose for which no appropriation is provided, or in excess of the amount appropriated for such purpose. [N.J.S.A. 40A:4-57.]
Persaud argues that because Paterson appointed Weigle as the provisional Health Officer at an annual salary of $98,000, and Persaud was to replace Weigle at an annual salary of $80,000, sufficient money was appropriated for the permanent position.
Pursuant to N.J.S.A. 26:3A2-14, "[e]very local health agency shall be administered by a full-time health officer[,]" and appointed in accordance with the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6.
In its June 1, 2011 decision, the Commission concluded there is no dispute that Paterson, pursuant to the MOU . . ., must receive DCA approval prior to the funding of vacant positions.
In this case, there is no indication that [Paterson] ever received DCA approval to fill the position at issue. Therefore, this position, even if vacant, was not funded.
In order to constitute a genuine vacancy, [Paterson] must have the current ability, including the fiscal ability, to fill the position. [(citation omitted).]
The Commission also cited N.J.A.C. 4A:4-1.10(a), which requires the Commission's approval for "[a]ll initial and subsequent appointments, promotions, and related personnel actions in the career, unclassified, or senior executive service[.]" A career service appointment is "subject to an examination process and successful completion of a working test period." N.J.A.C. 4A:4-1.1(a). The Commission concluded that because an approved DCA waiver did not accompany the December 2009 certification, the DCA never recognized Persaud's appointment.
Persaud concedes that a waiver was not obtained from DCA for his appointment, but argues that a waiver was not necessary because a Health Officer is an essential employee pursuant to N.J.S.A. 26:3A2-14, and he was willing to work for $18,000 less than Weigle, thus no additional budget appropriation was necessary. He asserts that under section one of the MOU, no DCA waiver was required for his appointment as Health Officer. Through their actions, however, Paterson and the DCA clearly interpreted the somewhat unclear language of the MOU to require a waiver for the appointment or transfer of any employee. A waiver was sought and obtained by the Torres administration to appoint Weigle as Health Officer. That waiver was particular to Weigle and did not serve as a waiver for Persaud. Only an unapproved DCA waiver for Persaud was submitted.
The Commission's acceptance of DCA's interpretation of the MOU, specifically that a DCA waiver was required before permanently appointing Persaud as Paterson's Health Officer, was not "'arbitrary, capricious, or unreasonable'" and it was sufficiently "'supported by substantial credible evidence in the record as a whole.'" Stallworth, supra, 208 N.J. at 194 (quoting Henry, supra, 81 N.J. at 579-80). DCA has the authority to impose efficiency and oversight measures, as well as management and fiscal audits, as conditions of receipt of special municipal aid. N.J.S.A. 52:27D-118.29(a). An appointment is not final until formally approved by the Department of Civil Service. See Thomas v. Mc Grath, 145 N.J. Super. 288, 296-300 (App. Div. 1976) (Morgan, J.A.D., dissenting), rev'd on dissent, 75 N.J. 372 (1978). In spite of the mistaken entry into the CAMPS system, Persaud was not formally appointed because no approved DCA waiver was supplied by Paterson. Also, Persaud never served in the position of Health Officer.
Because we find the lack of an approved DCA waiver sufficient reason for the Commission's determination that Persaud was never appointed as Paterson's Health Officer, we need not address the validity of the other reasons expressed by the Commission.