In the Matter of social/family Service Worker Trainee, Etc.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2141-23

IN THE MATTER OF SOCIAL/

FAMILY SERVICE WORKER

TRAINEE, ESSEX COUNTY.

____________________________

Submitted April 8, 2025 – Decided May 7, 2025

Before Judges Chase and Vanek.

On appeal from the New Jersey Civil Service

Commission, Docket No. 2024-1424.

Weissman & Mintz LLC, attorneys for appellant

Communications Workers of America, AFL-CIO,

District 1 (Patricia A. Villanueva, on the brief).

Jerome M. St. John, Essex County Counsel, attorney for

respondent Essex County (Gary J. Cucchiara, Assistant

County Counsel, on the brief).

Matthew J. Platkin, Attorney General, attorney for

respondent New Jersey Civil Service Commission

(Charles A. Shadle, Deputy Attorney General, on the

statement in lieu of brief).

PER CURIAM

The Communications Workers of America, AFL-CIO, District 1 (CWA)

appeals from the Civil Service Commission's (the Commission) final agency

decision (FAD) affirming the Division of Agency Services' (Agency Services)

determination that certain Family Service Worker (FSW) appointments made by

Essex County, Division of Family Assistance and Benefits (the County) do not

violate the Civil Service Act (the Act), N.J.S.A. 11A:1-1 to -2-6, or

constitutional law. We affirm, concluding the CWA has not shown the

Commission's FAD was arbitrary, capricious, or unreasonable.

I.

We discern the material facts from the record. In 2014, the Commission

established the non-competitive title of "Trainee" under N.J.A.C. 4A:3-3.7(a) to

facilitate the recruitment and hiring of employees with no experience into entry

level titles. Since then, various county welfare agencies and social service

agencies throughout New Jersey have made appointments under the Trainee

title.

Trainee job duties include office and field work related to continuing

preventive and rehabilitative social services for clients and their families, aiding

individuals and families with problems that adversely affect their families or

personal lives, and other related duties. The Trainee job specification requires

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eligible candidates to be bilingual in Spanish and English and have a bachelor's

degree from an accredited college or university, or four years of professional

experience relevant to the position that is "analytical, evaluative and

interpretive." The professional experience must encompass basic knowledge of

concepts and practices, performed with the authority to act and make accurate

and informed decisions. Only those appointees who successfully complete a

twelve-month training period will be eligible for advancement to other specified

titles, including the primary title of FSW.

The FSW job specification likewise requires four years of professional

experience, a bachelor's degree, or a combination of both experience and

education. The FSW duties are similar to those performed by the Trainee, except

they are undertaken in a primary capacity.

In 2022, the Commission administered an open competitive examination

for the FSW title, resulting in an eligible list of 128 individuals , which expires

on October 26, 2025. The County made seventy-seven total appointments to the

FSW title—sixty-five from the eligible list and twelve from the pool of qualified

FSW Trainees.

The CWA objected to the County's appointment of Trainees to the FSW

position, contending they were improperly permitted to advance to the related

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primary title without open competitive testing. The CWA posited the County

was classifying employees in the non-competitive Trainee title to circumvent

the competitive examination process. The CWA's request for Agency Services

to disapprove further appointments was denied, as was its further appeal to the

Commissioner.

The Commission affirmed Agency Services in a FAD, finding the County

made most appointments from the open competitive list and is not attempting to

circumvent the Act and civil service rules by promoting some Trainees to the

FSW positions. The Commission found the County is using all available options

to efficiently fill its needs with qualified individuals, since the eligibility

requirements for the Trainee position are similar to those of the FSW title.

The Commission found there was no authority to support CWA's

contention that the County was prohibited from appointing candidates from both

the eligible list and from the pool of qualified non-competitive Trainees. The

Commission also found the County had discretion to determine its

organizational structure using existing Trainees who had the experience and

demonstrated ability to perform the services required of an FSW.

The Commission rejected CWA's arguments that the County's actions

were tantamount to infringement on special reemployment rights, finding a

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candidate does not have any vested rights to a promotion. The Commission did

not find CWA's arguments that the County's appointment of Trainees constitutes

job banding persuasive, since the qualified candidates had been fully trained and

were experienced.

This appeal follows.

II.

Under our limited scope of review, we conclude the Commission's

determination was not arbitrary, capricious, or unreasonable, substantially for

the reasons set forth in its FAD. See Allstars Auto Grp., Inc. v. N.J. Motor

Vehicle Comm'n, 234 N.J. 150, 157 (2018) (citing Russo v. Bd. of Trs., Police

& Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)). The Commission found the

County had discretion to determine its organizational structure using existing

Trainees who had the experience and demonstrated the ability to perform the

services required of an FSW.

A.

The standard of review applicable to the determination of an

administrative agency, including the Commission, is whether there has been "a

showing [the action was] arbitrary, capricious[,] or unreasonable, or that it

lacked fair support in the evidence, or that it violated legislative policies

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expressed or implicit in the civil service act." In re Hendrickson, 235 N.J. 145,

160 (2018) (quoting State v. Roth, 95 N.J. 334, 364 (1984)). The judicial role

in reviewing administrative action is generally limited to three inquiries:

(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.

[Allstars, 234 N.J. at 157 (quoting In re Stallworth, 208

N.J. 182, 194 (2011)).]

This well-known standard has engrained within it a degree of deference

prohibiting us from substituting our judgment for the agency's "merely because

we might have come to a different outcome." Hendrickson, 235 N.J. at 150.

Additionally, a "'strong presumption of reasonableness attaches to the actions of

the administrative agencies.'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div.

2001) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135

N.J. 306 (1994)).

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However, "'we are in no way bound by the agency's interpretation of a

statute or its determination of a strictly legal issue'" since our review of those

issues is de novo. In re Langan Eng'g. & Env't Servs., Inc., 425 N.J. Super. 577,

581 (App. Div. 2012) (quoting Utley v. Bd. of Rev., 194 N.J. 534, 551 (2008)).

The burden of proof in a non-disciplinary Commission appeal resides with the

appellant. N.J.A.C. 4A:2-1.4(c); In re Foglio, 207 N.J. 38, 47 (2011).

B.

Enacted in 1986, the Act "governs civil service employment in New

Jersey, which includes all positions within state government and those within

the political subdivisions that choose to adopt and be governed by [its terms]."

Commc'ns Workers of Am., AFL-CIO v. N.J. Civ. Serv. Comm'n, 234 N.J. 483,

522 (2018). See Foglio, 207 N.J. at 51, 54. The Act grants the Commission

authority to:

a. Establish, administer, amend and continuously

review a State classification plan governing all

positions in State service and similar plans for political

subdivisions;

b. Establish, consolidate and abolish titles;

c. Ensure the grouping in a single title of positions

with similar qualifications, authority and

responsibility;

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d. Assign and reassign titles to appropriate positions;

and

e. Provide a specification for each title.

[N.J.S.A. 11A:3-1.]

The Act also "directs the Commission to 'promulgate, pursuant to the

"Administrative Procedure Act," [N.J.S.A. 52:14B-1 to -31], rules and

regulations to effectuate the purposes of' [the] Act." Commc'ns Workers of Am.,

AFL-CIO, 234 N.J. at 522 (alteration in original) (quoting N.J.S.A. 11A:4-1.2).

"Those 'purposes' are defined by the statute to include the selection and

advancement of employees 'on the basis of their relative knowledge, skills and

abilities'; the encouragement and rewarding of 'meritorious performance '; and

the retention and separation of employees 'on the basis of the adequacy of their

performance.'" Ibid. (quoting N.J.S.A. 11A:1-2).

The Act emphasizes competitive examinations in appointments and

promotions pursuant to Article VII, Section I, Paragraph 2 of the New Jersey

Constitution, which states:

Appointments and promotions in the civil service of the

State, and of such political subdivisions as may be

provided by law, shall be made according to merit and

fitness to be ascertained, as far as practicable, by

examination, which, as far as practicable, shall be

competitive; except that preference in appointments by

reasons of active service in any branch of the military

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or naval forces of the United States in time of war may

be provided by law.

This constitutional provision, however, "does not require that merit and

fitness be determined by competitive examination in every case, but only 'as far

as practicable.'" Commc'ns Workers of Am., AFL-CIO, 234 N.J. at 523 (quoting

Newark Superior Officers Ass'n v. City of Newark, 98 N.J. 212, 232 (1985)).

As the Court has observed, "[t]he framers of the Constitution recognized that

although competitive examinations would be the general rule in Civil Service

appointments and promotions, there would be situations where such examination

would not be practicable . . . ." Ibid. (alteration in original) (quoting Falcey v.

Civ. Serv. Comm'n, 16 N.J. 117, 122-23 (1954)). The Act permits the

Commission to "waive competitive examination on grounds of impracticability

. . . [which] will not be upset on judicial review unless it is shown to have been

arbitrary, capricious[,] or unreasonable." Falcey, 16 N.J. at 123.

In acknowledging "appointments to certain types of employment are not

readily made through a competitive examination process," N.J.S.A. 11A:3-

2.1(b), the Act authorizes the creation of both a competitive division and a non-

competitive division, N.J.S.A. 11A:3-2. Unlike the competitive division, where

"examination and certification" are required for advancement, the Act provides

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for "appointment" to titles in the non-competitive division. N.J.S.A. 11A:4-13;

see also Commc'ns Workers of Am., AFL-CIO, 234 N.J. at 523.

N.J.A.C. 4A:3-3.7(a) provides trainee, apprentice, recruit, and intern titles

may be established by state and local government for entry level employment.

Additionally, N.J.A.C. 4A:3-3.7(j) specifically allows for "[t]he advancement of

a successful, permanent trainee . . . to the appropriate primary title" by regular

appointment without the promotional examination process. This appointment

structure is consistent with the goal of the Act—to secure the appointment and

advancement of civil service employees based on their merit and abilities.

N.J.S.A. 11A:1-2; Commc'ns Workers of Am., AFL-CIO v. N.J. Dep't of Pers.,

154 N.J. 121, 128 (1998) (explaining the underlying purpose of the Act's

appointment structure).

The CWA now appears to have coupled its objection to the appointment

of Trainees to the FSW position without a competitive exam with a belated

argument that the Trainee position was improperly classified as non-competitive

in 2014. Although CWA criticizes the lack of record before the Commission as

to the 2014 non-competitive classification, that permanent classification

occurred in accordance with N.J.A.C. 4A:3-1.2(c) more than ten years ago. The

undisputed evidence in the record before the Commission on this matter was that

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the classification occurred to facilitate the recruitment and hiring of employees

with no experience into entry level titles. We decline to substantively review

this over ten-year-old classification, based on the dilatory nature of the argument

and lack of a further record.

Our review of the County's appointment of twelve Trainees to the FSW

title leads us to conclude the County did not violate the legislative policies

underpinning the Act where the advancement was based on the Trainees'

knowledge, skills, and experience performing the specified services related to

the primary position. The appointees were selected based upon their satisfactory

performance of FSW duties as Trainees for an extended period of time, allowing

them to advance to the FSW position without competitive testing.

The CWA failed to show the County was attempting to circumvent the

Act where only twelve Trainees were promoted to the FSW title pursuant to

N.J.A.C. 4A:3-3.7(j), out of the total seventy-seven candidates appointed. The

remaining sixty-five appointments were from the eligible list. In a similar vein,

CWA has not proffered any authority establishing the County's appointment

from both the pool of qualified Trainees and the eligible list of candidates who

took the promotional examination violated the Act.

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We are unconvinced that the Commission's FAD violates N.J.S.A. 11A:4-

8 (the "Rule of Three"), predicated on Commc'ns Workers of Am., AFL-CIO.

CWA's reliance is misplaced, as the Court in that case addressed "'job banding,'

the aggregation of certain public employment job titles in a 'band' that permits

employees to advance to higher titles within a band without competitive

examinations." 234 N.J. at 493. The facts here are more akin to N.J. Dep't of

Pers., where promotions from a non-competitive trainee title to a related,

primary competitive title were found permissible based on merit, without an

examination. 154 N.J. at 129-30.

We are not persuaded that the County's limited promotion of twelve

Trainees out of seventy-seven appointments constituted job banding, since there

was no grouping of titles or a title series onto a single broad band of titles with

similar responsibilities, duties, and qualifications without a competitive exam.

See Commc'ns Workers of Am., AFL-CIO, 234 N.J. at 497. Here, there was no

general practice of promoting non-entry level positions without competitive

testing. Instead, a limited number of Trainee promotions were accomplished,

based on authority embodied in an express administrative code provision.

CWA has not sustained its burden of establishing the limited Trainee

appointments to their primary FSW positions are unconstitutional. N.J.A.C.

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4A:3-3.7(j) specifically contemplates allowing trainees to achieve their primary

title without a promotional exam, consistent with the constitutional requirement

that appointments be made according to merit and fitness, by examination, as

far as practicable. CWA has failed to show any specific appointment was made

without evaluating the FSW Trainees' merit and fitness. Nor has CWA

presented any binding authority supporting its constitutional arguments. Thus,

we are unpersuaded the CWA met its burden of establishing the merit-based

Trainee-to-FSW appointments were not accomplished in accordance with

prevailing law and constitutional principles.

To the extent we have not addressed any of plaintiff's remaining

arguments, we conclude they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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