August 15, 2013
IN THE MATTER OF SYLVESTER HENDERSON, DEPARTMENT OF HUMAN SERVICES.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 12, 2013
On appeal from the Civil Service Commission, Docket No. 2011-3409.
Sylvester Henderson, appellant, pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent Civil Service Commission (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Pamela N. Ullman, Deputy Attorney General, on the brief).
Before Judges Messano and Mantineo.
Sylvester Henderson appeals from the final decision of the Civil Service Commission (the Commission) regarding his requested review of appointments made to the positions of Medical Security Officer Recruit (Recruit) and Senior Medical Security Officer (Senior Officer) by the Department of Human Services (DHS). The following facts are discerned from the record.
Henderson took the open competitive exam for the Recruit position in March 2008. A list of eligibles was issued in April but Henderson's name was not on it. His name and others were added in May 2008, resulting in Henderson being ranked twenty-sixth on the resultant list certified in October 2008.
He was appointed to a part-time Recruit position on March 14, 2009. Henderson was subsequently charged with various offenses, including conduct unbecoming, and removed from his position. He appealed. At its meeting of July 21, 2010, the Commission acknowledged a settlement, pursuant to which DHS agreed to consider Henderson's separation from employment as "an approved leave of absence without pay." Henderson, in turn, agreed to serve "a new working test period upon his reinstatement."
Henderson returned to employment on September 25, 2010, and began a new twelve-month working test period effective that date. Henderson then lodged a number of objections to DHS's hiring practices that allegedly occurred over the course of several years. In its final decision, the Commission addressed each of Henderson's claims.
We need not review all the issues before the Commission because, on appeal, Henderson presents arguments only as to two specific claims. We deem any challenge to the balance of the Commission's decision to be waived. See, e.g., Sklodowsky v. Lushis, 417 N.J.Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived.") (citations omitted).
Our review of decisions by administrative agencies is limited. In re Stallworth, 208 N.J. 182, 194 (2011). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or  not supported by substantial credible evidence in the record as a whole.'" Ibid. (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). In our review, we only determine:
(1) whether the agency's action 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.
[In re Carter, 191 N.J. 474, 482-83 (2007) (quoting Mazza v. Bd. of Trustees, 143 N.J. 22, 25 (1995) (citation omitted)).]
"[I]f substantial evidence supports the agency's decision, a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Id. at 483 (citations omitted).
Moreover, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. New Jersey Div. of Motor Vehicles, 337 N.J.Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J.Super. 93, 102 (App. Div. 1997)) (second alteration in original).
Henderson argues that the April 2008 list of eligibles wrongly omitted the names of fourteen people, including his. He contends that DHS made appointments of people who ranked lower than him while his name was wrongfully omitted, and he should be accorded "a retroactive appointment date."
The Commission addressed this claim directly, noting that Henderson "did not provide any documentation in support of his contention that he was improperly bypassed in violation of the 'Rule of Three.'" The Commission noted that the list, when first promulgated, contained sixty names, and twenty-three permanent appointments were made from the list up to the eighty-third eligible. The individuals Henderson named in his complaint were on the list.
When the fourteen names (including Henderson's) were added, Henderson ranked twenty-sixth. Pursuant to N.J.A.C. 4A:4-3.6(b), "[w]hen the name of an eligible is added to an existing list to correct an error made by the Department of Personnel, the Department shall determine the retroactive certification and/or appointment rights." The Commission noted that there was no evidence that Henderson ever "appealed his rank or score . . . or that there was any error in not placing his name on the initial certification." The Commission determined that Henderson was provided an "equitable remedy" in May 2008 when his name was added to the list in time for the next certification in October.
Henderson also argues, as he did before the Commission, that DHS used a "'special promotional list, '" promoting "provisional appointees" to the title even though they had never taken any examination. Henderson notes that some of the provisional appointees remained in that status for more than twelve months, in violation of N.J.S.A. 11A:4-13(b). That statute provides:
Provisional appointments shall be made only in the competitive division of the career service and only in the absence of a complete certification, if the appointing authority certifies that in each individual case the appointee meets the minimum qualifications for the title at the time of appointment and that failure to make a provisional appointment will seriously impair the work of the appointing authority. In no case shall any provisional appointment exceed a period of 12 months . . . .
The Commission determined that "all applicants who were deemed eligible competed in an examination . . . and those who achieved passing scores were placed on the resultant eligible lists." The Commission acknowledged that "not all of the individuals were in fact permanently appointed as . . . Recruits from an eligible list." Some were "provisionally appointed . . . while others received interim appointments to the title." See N.J.A.C. 4A:4-1.5(a) and 4A:4-1.6. In some cases, these appointments exceeded twelve months.
Nevertheless, the Commission concluded that "[a]lthough provisional appointments were made, the record demonstrates that those individuals were in fact properly appointed and ultimately achieved permanency as Senior . . . Officers in accordance with Civil Service law and rules." The Commission determined that "the extensive provisional service was occasioned by the fact that there was no list in existence at the time of the provisional appointments." See N.J.A.C. 4A:4-1.5(a)(1) (permitting provisional appointments when, among other requirements, "[t]here is no complete list of eligibles, and no one remaining on an incomplete list will accept provisional appointment"). "[S]ince [Henderson] did not provide any evidence that he was entitled to displace any of the provisional employees no further action [was] necessary"
Having considered Henderson's arguments in light of the record and applicable legal standards set forth above the Commission's final decision of September 7 2011 "is supported by sufficient credible evidence on the record as a whole" and the arguments Henderson makes lack "sufficient merit" to warrant further discussion in this opinion R 2:11-3(e)(1)(D) and (E)