IN THE MATTER OF MARITZA AVILLEIRA, ETC. (2018-2144, NEW JERSEY CIVIL SERVICE COMMISSION) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4766-17T4
IN THE MATTER OF MARITZA
AVILLEIRA, MARIA FEBLES,
MIGUEL RIVERA, JUDICIARY
CLERK 2 BILINGUAL IN
SPANISH AND ENGLISH,
MONMOUTH VICINAGE.
_____________________________
Argued November 4, 2020 – Decided December 11, 2020
Before Judges Yannotti and Natali.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2018-2144.
Mark J. Molz argued the cause for appellants Maritza
Avilleira and Maria Febles.
Pamela N. Ullman, Deputy Attorney General, argued
the cause for respondent New Jersey Civil Service
Commission (Gurbir S. Grewal, Attorney General,
attorney; Donna Arons, Assistant Attorney General, of
counsel; Pamela N. Ullman, on the brief).
PER CURIAM
Maritza Avilleira and Maria Febles appeal from a final determination of
the Civil Service Commission (Commission), dated May 7, 2018, which denied
a request by the Monmouth Vicinage of the Superior Court of New Jersey
(Monmouth) to appoint them retroactively to the positions of Judiciary Clerk 2,
Bilingual in Spanish and English. 1 We affirm.
This appeal arises from the following facts. On December 26, 2012,
Monmouth posted a career opportunity for the position of "Judiciary Clerk 2
Bilingual (Provisional), Support Staff Band, Level 1-2 Basic, Classified." On
June 3, 2013, Monmouth appointed appellants to the positions provisionally. On
the same day, appellants each received a "Report on Progress of Probationer"
indicating that their four-month working test period began as of their
appointment dates. Appellants did not, however, take the civil service open
competitive examination after their provisional appointments, as required by
N.J.A.C. 4A:4-1.5(b).
At some point, Monmouth asked appellants to take the Bilingual
Communicative Ability Test (BICAT) for the position of Judiciary Clerk 2,
Bilingual in Spanish and English (S00633P). The BICAT tests an applicant's
language proficiency and ranks the applicant in three levels of competence, with
level 1 the lowest and level 3 being the highest rank. In July 2013, appellants
1
We note that the Commission also denied Monmouth's request for the
retroactive appointment of Miguel Rivera. Monmouth and Rivera have not
appealed the Commission's decision.
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both took and passed the BICAT. Avilleira was ranked at level 1 and Febles
was ranked at level 3.
In August 2015, Monmouth posted a career opportunity announcement for
"Judiciary Clerk 3[,] Support Staff Band[,] Level 3 – Journey (Career Service)"
with a closing date of August 17, 2015. This position requires an employee to
"have an aggregate of one year of permanent service as of the announced closing
date . . ." in one of four titles, including Judiciary Clerk 2 or Judiciary Clerk 2
Bilingual. Appellants applied for the position of Judiciary Clerk 3, and on
February 8, 2016, both were appointed to that title.
After one pay period, Monmouth's Human Resources Department (HR)
determined that appellants were ineligible for promotion to Judiciary Clerk 3
because they had never held "permanent status in [their] Judiciary Clerk 2
title[s]." Terry Mapson-Steed, the division manager of HR, informed appellants
they had never been appointed on a permanent basis after their provisional
appointments.
Mapson-Steed told appellants that following their provisional
appointments in 2013, they were required to "apply for and pass the
[Commission's] open competitive exam for the title." Appellants were returned
to their provisional appointments in the title of Judiciary Clerk 2 and were
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instructed to apply for the Judiciary Clerk 2, Bilingual in Spanish and English
examination, "which closed on February 26, 2016."
Appellants took and passed the exam, and on April 30, 2016, they received
provisional appointments to the title of Judiciary Clerk 2, Bilingual in Spanish
and English. Avilleira received a permanent appointment on May 13, 2016, and
Febles received a permanent appointment on December 7, 2016.
In September 2017, Monmouth requested that the Commission's Division
of Agency Services (AS) grant appellants retroactive permanent appointments
to the title of Judiciary Clerk 2, Bilingual in Spanish and English, with an
effective date of January 2, 2014. Monmouth stated that in 2013, it erroneously
generated working test period forms for appellants as if they had received
regular appointment. Monmouth also asserted that, despite this error, appellants
had successfully completed their respective working test periods and passed the
BICAT.
Monmouth claimed that it had no record of appellants' provisional status,
and that during their employment, they had always been treated as permanent
employees. Based on its own "administrative error," Monmouth asked AS to
grant appellants retroactive appointments to January 2, 2014, which was "when
the [appellants'] certification was promulgated."
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On December 20, 2017, AS denied the request. AS noted that appellants
had received regular appointments from the eligible list for the title of Judiciary
Clerk 2, Bilingual in Spanish and English (S0110U), which was promulgated in
May 2016. AS found that as of the requested retroactive appointment date of
January 2, 2014, there were complete eligible lists for the positions of Judiciary
Clerk 2 (S0811R) and for Judiciary Clerk 2, Bilingual in Spanish and English
(S0812R). Because appellants were not on either eligible list, Monmouth could
not have appointed them to either position on the requested date.
On January 19, 2018, Monmouth appealed the decision of AS to the
Commission. Monmouth asserted that when appellants were first appointed,
they were erroneously informed they only needed to pass the BICAT and
successfully complete the working test period to gain permanent status.
Monmouth also asserted that appellants had always been treated as
permanent employees and had met all related "career progression competencies"
to be eligible for appointment to the Judiciary Clerk 3 positions. Monmouth
contended that it would be unfair for appellants to continue to bear the "negative
impact" of its "administrative error."
Appellants supplemented Monmouth's appeal with letters describing the
"administrative error" the appointing authority made when they were first
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appointed, as well as their respective work histories in the vicinage. They also
stated that they suffered mental anguish, humiliation, and financial hardship
because of Monmouth's error and their resulting "demotions."
On May 7, 2018, the Commission issued a final administrative decision
on the appeal. The Commission found that AS had correctly denied Monmouth's
request for the retroactive appointments. The Commission noted that on January
2, 2014, the requested retroactive appointment date, there were complete eligible
lists for the titles of Judiciary Clerk 2 (S0811R) and Judicial Clerk 2, Bilingual
in Spanish and English (S0812R).
Because appellants were not on the eligible lists, they could not have been
appointed to the position of Judiciary Clerk 2, Bilingual in Spanish and English,
on that date. The Commission acknowledged that Monmouth had provided
appellants with incorrect information regarding their initial appointments. The
Commission concluded, however, that granting appellants retroactive
appointments would be inconsistent with the applicable civil service rules . This
appeal followed.
On appeal, appellants argue that the Commission's decision to deny them
retroactive appointments is arbitrary, capricious, and unreasonable. They
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further argue that the Commission erroneously found there was no
administrative error that warranted the retroactive appointments.
This court has "a limited role" in reviewing final decisions of a state
administrative agency. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry
v. Rahway State Prison, 81 N.J. 571, 579 (1980)). In reviewing such decisions,
we consider:
(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)).]
Furthermore, when an agency renders a decision in the exercise of its
delegated powers, we accord "substantial deference to the agency's expertise and
superior knowledge of a particular field." In re Herrmann, 192 N.J. 19, 28
(2007); In re Taylor, 158 N.J. 644, 657 (1999). We will not reverse an agency's
decision unless it is "arbitrary, capricious, or unreasonable or it is not supported
by substantial credible evidence in the record as a whole." Henry, 81 N.J. at
579-80.
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As noted, appellants argue that the Commission erred by denying
Monmouth's request to retroactively appoint them to the title of Judiciary Clerk
2, Bilingual in Spanish and English, effective January 2, 2014. They contend
that the Commission has authority under N.J.A.C. 4A:4-1.10(c), to order a
retroactive appointment date for a regular appointee to correct an administrative
error, administrative delay, or when other good cause is shown. They argue that
the Commission erred by refusing to exercise its authority under this rule.
The Commission found, however, that granting appellants the retroactive
appointments would be inconsistent with the applicable civil service rules. As
the Commission noted, when there is a vacancy in the competitive division of
the career service, an appointing authority must request the issuance of a
certification of names on the eligible list for regular appointment. N.J.A.C.
4A:4-4.1(a). The Commission or its designee then issues a certification
"containing the names and addresses of the eligibles with the highest rankings
on the appropriate list." N.J.A.C. 4A:4-4.2(a).
After the appointing authority receives the certification, it is required to
"appoint one of the top three interested eligibles (rule of three) from an open
competitive or promotional list . . . ." N.J.A.C. 4A:4-4.8(a)(3). Regular
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appointees in the competitive division of the career service must then complete
a working test period. N.J.A.C. 4A:4-1.1(a).
Here, the Commission found that while Avilleira and Febles had received
regular appointments to the title of Judiciary Clerk 2, Bilingual in Spanish and
English, in 2016, retroactive regular appointments to the positions were not
warranted under the circumstances. As the Commission noted, on the requested
retroactive appointment date of January 2, 2014, there were complete eligible
lists for Judiciary Clerk 2 and Judiciary Clerk 2, Bilingual in Spanish and
English.
Appellants were not on the list of eligibles for either position. Because
N.J.A.C. 4A:4-4.8(a)(3) requires an appointing authority to appoint one of the
top three interested eligibles on the list, Monmouth could not have appointed
appellants to the position of Judiciary Clerk 2 on January 2, 2014.
Appellants argue that the Commission erred by finding there was no
administrative error warranting relief under N.J.A.C. 4:4-1.10(c). The record
does not support this argument. In its decision, the Commission noted that
Monmouth had acknowledged it made what appeared to be an administrative
error. The Commission pointed out that Monmouth had provided appellants
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with incorrect information regarding the requirements for their initial
appointments in June 2013.
The Commission found, however, that the applicable civil service rules
did not authorize those initial appointments. Provisional appointments in the
competitive division of the career service may only be made when:
1. [t]here is no complete list of eligibles, and no one
remaining on an incomplete list will accept provisional
appointment;
2. [t]he appointing authority certifies that the
appointee meets the minimum qualifications for the
title at the time of the appointment; and
3. [t]he appointing authority certifies that failure to
make the provisional appointment will seriously impair
its work.
[N.J.A.C. 4A:4-1.5(a).]
Furthermore, a provisional appointee is required to apply for an
examination that has been announced for the title. N.J.A.C. 4A:4-1.5(b). If an
employee serving in provisional status fails to apply for or fails the examination,
the employee shall be removed from their provisional title, in the absence of
good cause for an extension. Ibid.
Here, the record shows that in June 2013, when Monmouth granted
appellants the provisional appointments, there were complete eligible lists for
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the positions of Judiciary Clerk 2 and Judiciary Clerk 2, Bilingual in Spanish
and English. Appellants were not on either list. The Commission correctly
determined that Monmouth could not have validly appointed appellants
provisionally or to permanent regular status at that time.
The Commission also noted that Monmouth claimed it had no record of
appellants' provisional status. The Commission found, however, that as a State
appointing authority, Monmouth "has access to employee records in the
Personnel Management Information System[,] which tracks personnel activities,
position activities, mass system changes, and payroll activity."
The Commission stated that "Monmouth must have initiated personnel
records to record provisional appointments as new hires. Therefore, it is
incredulous that this appointing authority, responsible for certification activity
for many positions, would not recognize newly-hired provisional appointees."
The Commission added that in June 2013, Monmouth had requested a
certification from a prior examination and "indicated three provisional
appointments." The certification was issued and later extended to October 2013.
Appellants took the BICAT although they had not filed applications for that
exam. Thereafter, Monmouth requested cancellation of the certification "on the
basis that it was not going to fill its vacant positions."
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The Commission emphasized that in 2013, Monmouth did not have
authority under the rules to appoint appellants to fill its vacancies. The
Commission found that Monmouth had nevertheless provided appellants
provisional appointments. This was a violation of N.J.A.C. 4A:4-1.5(a). The
Commission noted that Monmouth "is now arguing that those appointments
should be recognized as regular [appointments] effective January 2, 2014." The
Commission found that Monmouth's position was "untenable."
We are convinced there is sufficient credible evidence in the record to
support the Commission's findings of fact. The Commission's final decision is
consistent with the applicable law and not arbitrary, capricious, or unreasonable.
Affirmed.
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