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In re Johnson

Supreme Court of New Jersey

September 10, 2013

IN THE MATTER OF JOHN C. JOHNSON, CAPE MAY COUNTY.

Argued November 28, 2012

On certification to the Superior Court, Appellate Division.

James B. Arsenault, Jr., Assistant County Counsel, argued the cause for appellant Cape May County (Barbara L. Bakley-Marino, County Counsel, attorney).

Todd A. Wigder, Deputy Attorney General, argued the cause for respondent Civil Service Commission (Jeffrey S. Chiesa, Attorney General of New Jersey, attorney).

J. Vincent Molitor, Assistant Prosecutor argued the cause for amicus curiae Cape May County Prosecutor (Robert L. Taylor, Prosecutor, attorney).

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

At issue in this appeal is the propriety of the reclassification of John C. Johnson's unclassified title of prosecutor's agent to the classified title of property clerk.

In 1984, the Cape May County Prosecutor appointed Johnson to the unclassified position of prosecutor's agent. At that time, N.J.S.A. 11:4-4(s) permitted the Cape May County Prosecutor to employ two unclassified agents. Following the 1986 adoption of the Civil Service Act (the Act), N.J.S.A. 11A:1-1 to 11-6, the historical treatment and classification of prosecutor's agents remained unchanged. In 1989, the Merit System Board (the Board) recognized that the title of prosecutor's agent should remain in the unclassified service pursuant to N.J.S.A. 11:3-4(l). In re Cnty. Prosecutor's Agents, DOP, final decision (May 26, 1989). The 1989 order also determined the number of prosecutor's agents permitted by each county pursuant to N.J.S.A. 11:4-4(s). Cape May was entitled to two prosecutor's agents. In 2004, the Board concluded that counties could hire additional prosecutor's agents beyond those limits. In re Prosecutor's Agents, Gloucester Cnty. Prosecutor's Office, DOP 2004-532, final decision (July 16, 2004). Recognizing that the duties assigned to the newly-hired personnel may impact on career service employees, however, the agency ordered a review of the duties being performed by prosecutor's agents hired in excess of the limitations prescribed in the 1989 order. The Cape May County Prosecutor's Office did not fall into that category.

On October 19, 2006, the Department of Personnel (DOP) issued a memorandum to all county prosecutors stating that the DOP would be reviewing the duties performed by incumbent prosecutor's agents to avoid impingement on career service titles. The memorandum included a "title specification" for the position that would apply to new appointments. The memorandum expressly stated that the newly-adopted specification would not apply to current employees. The unclassified position of prosecutor's agent was defined as "perform[ing] non-law enforcement duties to assist the Prosecutor in one or more of the following areas: trial preparation; administration; media/community relations; research and data analysis; [and] other related duties as required." The classified position of property clerk was "responsible for the collection, recording, and safe storage of property and other valuables, consigned or confiscated by the police department or other law enforcement agency; does other related duties as required." In 2008, the DOP conducted an audit of the Cape May County Prosecutor's Office. Johnson filled out a questionnaire in which he reported his various job duties and responsibilities, including that he spent seventy percent of his time as the "primary property and evidence custodian." On April 17, 2009, determining that Johnson's job responsibilities did not meet the newly-devised specifications for the unclassified prosecutor's agent title but matched that of the classified property clerk title, the Civil Service Commission (Commission) reclassified Johnson's position. (Effective June 30, 2008, the Commission was reconstituted and assumed the duties of the DOP and the Board.)

Cape May County appealed the reclassification. The Commission upheld the reclassification, finding that the job specification for property clerk best met the duties actually performed by Johnson. The Appellate Division affirmed. The panel recognized the authority of the Commission to review and reclassify positions and concluded that the Commission properly reclassified Johnson's position from an unclassified to a classified title. The panel also rejected the contention that equitable estoppel barred reclassification of Johnson's position. The Court granted the County's petition for certification. 208 N.J. 599 (2011).

HELD: The reclassification of Johnson's position was an arbitrary and capricious agency action that was manifestly unjust. Johnson is entitled to restoration to his prior unclassified title of prosecutor's agent.

1. The Commission is charged with the assignment of titles among the career service, the senior executive service, and the unclassified service for positions in State service and political subdivisions. The Commission has broad powers to ensure accurate classification and to reclassify existing positions. Courts will not interfere with the Commission's reclassification decisions absent an affirmative showing of arbitrariness. Deference to the administrative agency, however, does not extend to a reclassification decision that does not demonstrate a thorough understanding of the duties of the position or consultation with relevant employees. The Court also need not defer to an administrative decision that expressly contradicts prior assurances provided to prosecutors and their incumbent prosecutor's agents. Finally, although equitable estoppel is rarely invoked against a government entity, equitable considerations are relevant to assessing governmental conduct and may be invoked to prevent manifest injustice. O'Malley v. Department of Energy, 109 N.J. 309 (1987). (pp. 9-17)

2. The prosecutor in each county has been granted the authority to appoint a limited number of individuals to the unclassified position of prosecutor's agent to meet his or her investigational and prosecutorial needs. It is a sensitive position because of the broad range of tasks that have been and may be assigned to the individual in that position. As a prosecutor's agent, Johnson assured the preservation of evidence and the maintenance of the chain of custody, assisted in the preparation of cases for trial, gathered information and other data requested by the prosecutor, testified in grand jury and trial proceedings, researched and verified information, trained members of other law enforcement agencies, prepared and reviewed official correspondence, maintained essential records and files, and was available to perform any number of critical tasks required by the prosecutor. Although the property clerk position includes some of the tasks performed by Johnson, it does not include a significant portion of his day-to-day responsibilities. Considered as a whole, Johnson performed many functions beyond simply cataloging and organizing for safe-keeping property and valuables consigned or confiscated by a law enforcement agency. Accordingly, the Commission's analysis of Johnson's job duties was flawed and is not entitled to deference. When the Commission picks and chooses some of the tasks performed by the employee but ignores or mischaracterizes others, the classification decision takes on attributes of an arbitrary and unreasonable action. (pp. 17-22)

3. The Commission's historical treatment of prosecutor's agents support that its action was arbitrary and unreasonable. In 1989, the DOP acknowledged that the prosecutor's agent position should be preserved and should remain in the unclassified service. It also ordered that Cape May County is entitled to two prosecutor's agents, one of which was Johnson. In 2004, the DOP ordered a review of the duties being performed by prosecutor's agents who had been hired in excess of the limitations prescribed in the 1989 order, which did not include Cape May County or Johnson. Finally, in 2006, the DOP informed all prosecutors that the newly-developed title specification for prosecutor's agents would be applied only to new appointments and would not impact current employees. Based on those communications, the prosecutor and Johnson reasonably relied on the agency's representations that incumbent prosecutor's agents could continue to occupy their unclassified positions, that they were not subject to the newly-developed title specification, and that they would not be subject to an audit. Paired with an audit that failed to acknowledge Johnson's non-property clerk duties, the reclassification of Johnson's position was an arbitrary and capricious agency action that was manifestly unjust. (pp. 22-27)

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Commission for administrative action consistent with the holding of this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, HOENS, and PATTERSON; and JUDGE RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF's opinion.

OPINION

CUFF JUDGE

At issue in this appeal is the reclassification of the tasks performed by a prosecutor's agent. The prosecutor's agent title is in the unclassified service. A person appointed to that position performs tasks assigned by the prosecutor and serves at the pleasure of the prosecutor. Responding to complaints about the proliferation of prosecutor's agent appointments in various counties, the Civil Service Commission (Commission) commenced an examination of the job responsibilities of recent appointees. In spite of assurances that it was concerned only with recent appointees, the Commission conducted an audit of the position occupied by John C. Johnson, a long-time prosecutor's agent in Cape May County (Cape May County or County), determining that his job responsibilities did not meet the newly-devised specifications for that position but matched that of the classified position of property clerk. As a result, the Commission provisionally appointed Johnson to that classified position.

Cape May County and the Cape May County Prosecutor contend that the Commission's action is manifestly unjust under the circumstances, which include repeated recognition of the sensitive nature of the position of prosecutor's agent and implicit and explicit assurances that incumbent prosecutor's agents would not be subject to the newly-developed specification for that title. For the reasons set forth herein, we hold that the reclassification that occurred here is manifestly unjust.

I.

The action challenged in this appeal is the reclassification of Johnson's position as prosecutor's agent in the Cape May County Prosecutor's Office. The Cape May County Prosecutor appointed Johnson to the position of prosecutor's agent on September 24, 1984. At the time of his appointment, N.J.S.A. 11:4-4(s)[1] permitted the Cape May County Prosecutor to employ two unclassified "agents, investigators, or special officers." Johnson was continuously employed as a prosecutor's agent until April 17, 2009, when he received a letter from the Commission informing him that his position should be in the classified service and that he should carry the title of property clerk. The background to that April 17, 2009 letter is at the center of this appeal.

A.

Following adoption of the Civil Service Act (the Act), N.J.S.A. 11A:1-1 to 11-6, the historical treatment and classification of prosecutor's agents remained unchanged. In 1989, the Merit System Board (the Board)[2] recognized that the title of prosecutor's agent should remain in the unclassified service pursuant to N.J.S.A. 11:3-4(l). In re Cnty. Prosecutor's Agents, DOP, final decision (May 26, 1989). Additionally, the Board found that "such appointments . . . shall not exceed 12 in counties [with a population of over 300, 000]; 6 in counties [with a population between 160, ...


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