In the Matter of the Reallocation of the Probation Officer And , 441 N.J. Super. 434 ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0056-13T2
IN THE MATTER OF THE REALLOCATION
OF THE PROBATION OFFICER AND APPROVED FOR PUBLICATION
PROBATION OFFICER, BILINGUAL IN
July 22, 2015
SPANISH AND ENGLISH TITLES FROM
THE COMPETITIVE TO THE NON- APPELLATE DIVISION
COMPETITIVE DIVISION OF THE
CAREER SERVICE.
____________________________________
Argued April 22, 2015 – Decided July 22, 2015
Before Judges Alvarez, Waugh, and Carroll.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2013-3251.
Lynsey A. Stehling argued the cause for
appellant Probation Association of New
Jersey (Law Offices of Daniel J. Zirrith
LLC, attorneys; Daniel J. Zirrith, of
counsel; Ms. Stehling, on the brief).
Todd A. Wigder, Deputy Attorney General,
argued the cause for respondent New Jersey
Civil Service Commission (John J. Hoffman,
Acting Attorney General, attorney; Lewis A.
Scheindlin, Assistant Attorney General, of
counsel; Mr. Wigder, on the brief).
The opinion of the court was delivered by
WAUGH, J.A.D.
The Probation Association of New Jersey (Association)
appeals the final administrative agency decision of the New
Jersey Civil Service Commission (Commission) concerning the
manner in which the Administrative Office of the Courts (AOC)
selects and appoints candidates for the titles of Probation
Officer and Probation Officer, Bilingual in Spanish and English
(Bilingual Probation Officer). We reverse and remand for
further consideration consistent with this opinion.
I.
We discern the following facts and procedural history from
the record on appeal.
On December 5, 2011, pursuant to N.J.A.C. 4A:1-4.3, the AOC
requested the Commission to establish a one-year pilot program
to replace competitive testing for the Probation Officer and
Bilingual Probation Officer titles with an evaluation system.1
The AOC explained that the pilot program was necessary because
"at least four vicinages [had] exhausted [their] current pool
and several others [were] close to exhausting their pools" for
the Bilingual Probation Officer title. The AOC made no such
factual assertion with respect to the Probation Officer title.
The proposed program would replace the traditional system
of competitive testing that is generally used throughout the
State government with an evaluation program designed to focus on
1
The AOC also sought to replace the four-month working test
period provided by N.J.A.C. 4A:4-5.2(b)(2) with a Probation
Officer Trainee title that would provide a full year of training
and evaluation, but subsequently withdrew that request.
2 A-0056-13T2
a candidate's communication skills, personal motivation,
interpersonal skills, analytical skills, reasoning ability,
personal development, and time management skills. Candidates'
credentials would be reviewed and scored based on education and
work experience. The cover letters and resumes would be
evaluated and rated based on the number of errors in spelling,
grammar, and punctuation. Candidates with the highest scoring
resumes would be selected for a structured panel interview, be
required to complete a timed writing sample, and be evaluated
for promptness and neatness. Successful candidates would return
for a second structured interview, after which selected
finalists would receive offers of employment. The program would
be administered by vicinage or a regional group of vicinages, as
appropriate. The AOC's Division of Equal Employment
Opportunity/Affirmative Action would review the candidate pools
for diversity, and preference for veterans would be taken into
consideration.
The purpose of the proposed system was to allow for "a more
flexible process for recruitment and selection than the
traditional civil service testing process provides." The AOC
was particularly interested in oral examinations, which it
believed to be "a critical element of the selection process" and
which the Commission would not be able to administer because of
3 A-0056-13T2
the large number of candidates. In addition, the AOC explained
that "the flexibility of the proposed pilot program would allow
vicinages the opportunity to proactively recruit before their
candidate pool is empty," whereas the Commission only
administers its examinations at set intervals.
The proposal was opposed by the Association, which
submitted opposition to the Commission. The Association argued
that the proposal violated article VII, section 1, paragraph 2
of the New Jersey Constitution, which requires public employees
to be selected on the basis of "merit and fitness to be
ascertained, as far as practicable, by examination, which, as
far as practicable, shall be competitive." It further argued
that the AOC had not established sufficient need for the change
and that past instances of noncompetitive hiring had not been
successful. Finally, the Association called for a fact-finding
hearing in the Office of Administrative Law (OAL). The
Association subsequently argued that any problem caused when
hiring pools run low could be solved by interim, noncompetitive
appointments pursuant to N.J.A.C. 4A:3-1.2.
On June 21, following further submissions by the parties
and the AOC's acceptance of modifications suggested by the
Commission's staff, the Commission issued a final administrative
4 A-0056-13T2
order approving the pilot program.2 The year-long pilot program
was originally to have been implemented on July 1, 2012, but the
Commission subsequently delayed the implementation date to
November 1 at the AOC's request.
In its decision, the Commission concluded that the program
was consistent with N.J.A.C. 4A:3-1.2(c)(2), which allows a job
title to be placed "in the noncompetitive division on an ongoing
or interim basis" if the Commission determines "that it is
appropriate to make permanent appointments to the title and . .
. [c]ertification procedures based on ranked eligible lists have
not or are not likely to meet the needs of appointing
authorities due to such factors as salary, geographic location,
recruitment problems, and working conditions." It explained:
In this regard, the AOC has indicated that
it has experienced problems maintaining a
sufficient pool of qualified and interested
candidates in all geographic locations
during the duration of eligible lists
resulting from competitive testing. Indeed,
one of the primary goals of the pilot
program is to address this difficulty by
providing the [AOC] with a way in which to
continuously recruit qualified applicants .
. . with announcements directed to
particular regions of the State on an as-
needed basis.
2
The Association appealed that decision. That appeal was
dismissed as moot after the Commission approved use of the
noncompetitive process on an ongoing basis.
5 A-0056-13T2
The Commission found that the program would involve
"structured recruitment and selection," which would focus on
"six broad-based competencies for successful performance in the
. . . titles," namely, communication, personal motivation,
interpersonal skills, analysis and reasoning, self-development,
and time management. "The competencies and assigned weights
[were] consistent with a job analysis performed by the Division
of Selection Services in 2009 for the affected titles."
The program's success was to be evaluated by comparing the
previous years' and the pilot program's appointment
demographics, termination demographics, and discipline
demographics. The timeliness of appointments would also be
compared, "considering average recruitment time, average time
prior to appointment, average turnaround time for bilingual test
results, and average turnaround time for appointments." Lastly,
managers and supervisors would be surveyed "regarding [the]
quality, success, and commitment of [the] employees hired."
The Commission explained that the major benefits of the
program would be
the provision of greater flexibility in the
recruitment and selection process for both
the applicants and the AOC. In this regard,
the process will allow a consistently
refreshed pool of applicants to be
considered for positions in specific
geographic locations. This will provide
more opportunities for individuals
6 A-0056-13T2
interested in pursuing a career in this
field as their application opportunities
will not be limited to the set time frames
within which the Commission announces and
administers open competitive examinations
for the titles, which may not necessarily
coincide with time period of peak interest,
such as college graduation. The AOC will
likewise benefit from a fresh pool of
applicants and less likelihood of the
exhaustion of the candidate pool with
interest in less populated or popular
geographic areas of the State.
On May 21, 2013, less than seven months into the pilot
program, the AOC applied for permanent reallocation of the
Probation Officer and Bilingual Probation Officer titles from
the Commission's competitive division to its noncompetitive
division. In support of its application, the AOC reported on
the implementation of the pilot program.
According to its report, the AOC developed, posted, and
distributed a statewide notice of vacancy permitting candidates
to apply for positions in up to four vicinages. Resumes were
assigned to appropriate vicinages for review and ranking under
the uniform scoring system developed by the AOC with assistance
from the Commission's staff. Candidate information was entered
into a centralized database.
The AOC then scheduled regional recruitment events.
Candidates scoring five or better on their resume and all
veterans were invited to attend. The candidates were scheduled
7 A-0056-13T2
in groups of ten at hourly intervals. After check-in and an
informational presentation, each candidate participated in a
structured interview, completed an essay, and was then free to
leave.
During the structured interview, candidates were asked the
same series of questions at each event. Panelists were provided
with a response guide to ensure uniform, statewide scoring. The
writing sample topic was the same at each event. There was also
a scoring guide for the essays.
Candidates were assigned a final score based on their
performance at the recruitment event. Seventy-five percent of
the score was based on the structured interview, ten percent on
the writing sample, five percent on promptness, and ten percent
on attention to detail. Candidates scoring 60 or below were no
longer considered for appointment. The remaining candidates
were then banded into five numerical categories3 for the purpose
of creating candidate pools of three or more candidates. If
there were fewer than three candidates in a band, candidates
from the next lower band could be included to bring the pool up
to three. Veterans scoring 61 or above received preference
regardless of score.
3
The categories were 91 to 100, 81 to 90, 71 to 80, 61 to 70,
and below 60.
8 A-0056-13T2
The AOC provided the Commission with the results of the
pilot program, based on the evaluation criteria established in
its June 21, 2012 decision. Of 2401 applicants, 523 were
selected to attend one of the recruitment events, which were
held in Burlington, Camden, Ocean, Passaic, and Somerset
counties. The process resulted in forty-six appointments over a
six-month period, in contrast to eighty-three, fifty, and forty-
six appointments in the previous three years respectively.
There was one termination of an appointee during the six-
month period. In the previous three years, there had been four,
one, and six terminations respectively. Appointees were
disciplined twenty-eight times during the six-month evaluation
period, while new appointees in the previous three years had
been disciplined seventy-two, fifty, and fifty times
respectively.
During the pilot program, the AOC averaged 123 days, or
approximately three months, from recruitment event to
appointment. Over two-thirds of the managers and supervisors
surveyed reported that the appointees were of high quality, with
highly satisfactory performance and demonstrated commitment to
succeed. No comparable surveys were provided for the prior
three years during which appointments were made through the
traditional competitive process.
9 A-0056-13T2
The Association continued to express opposition to the
program and requested the Commission to defer its decision
regarding the AOC's request that the program be made permanent
pending resolution of its July 2012 appeal of the pilot program.
Nevertheless, on July 18, the Commission issued a final
administrative decision granting the AOC's request and
implementing the noncompetitive program on a permanent basis.
In explaining its decision, the Commission summarized the
positions of the parties and noted that the Division of
Classification and Personnel Management (Division) had
recommended approval. The Division had concluded that adoption
of the program on a permanent basis would
provide the AOC with the flexibility needed
to more efficiently and quickly meet hiring
responsibilities. Further, it [found] that
the documentation presented by the AOC
demonstrates a well-planned, fair, and
equitable recruitment and selection process.
Additionally, as set forth in N.J.A.C. 4A:3-
1.2(c), certification procedures will not
likely meet the needs of the AOC. [The
Division] also note[d] that no eligible
lists exist for the subject titles.
Citing N.J.A.C. 4A:3-1.2, the Commission concluded that
ample reasons exist for the reallocation of
the proposed titles to the noncompetitive
division of the career service. It is clear
that reallocation will provide the AOC with
the flexibility needed to more efficiently
and quickly meet hiring responsibilities.
Certification procedures based on ranked
eligible lists will not meet the AOC's needs
10 A-0056-13T2
for immediate recruitment. Further, the AOC
submits sufficient documentation showing the
success of the pilot program, which
justifies its request to reallocate the
subject titles to the noncompetitive
division of the career service.
This appeal followed.
II.
On appeal, the Association makes the following substantive
arguments:
POINT II: THE COMMISSION'S RULING APPROVING
THE PILOT PROGRAM WAS ARBITRARY, CAPRICIOUS,
AND UNREASONABLE BECAUSE IT ALLOWS THE
VIOLATION OF THE NEW JERSEY CONSTITUTION AND
TITLE 4A AND 11A
POINT III: THE COMMISSION'S RULING APPROVING
THE PILOT PROGRAM WAS ARBITRARY, CAPRICIOUS,
AND UNREASONABLE BECAUSE IT ALLOWS THE
REPLACEMENT OF THE CURRENT TESTING PROCESS
FOR PROBATION OFFICERS THROUGH OPEN
COMPETITIVE PROCESS, WHICH HAS BEEN ENTIRELY
SUCCESSFUL, WITHOUT PROPER GROUNDS FOR DOING
SO
POINT IV: THE COMMISSION'S RULING APPROVING
THE PILOT PROGRAM WAS ARBITRARY, CAPRICIOUS,
AND UNREASONABLE BECAUSE IT IGNORES THE FACT
THAT PRIOR INSTANCES OF NON-COMPETITIVE
TESTING, SUCH AS SELECTION FOR MENTAL HEALTH
PROBATION OFFICERS, HAVE RESULTED IN A HIGH
PERCENTAGE OF SELECTED CANDIDATES WHO WERE
DISCIPLINED OR TERMINATE[D]
POINT V: THE COMMISSION'S RULING APPROVING
THE PILOT PROGRAM WAS ARBITRARY, CAPRICIOUS,
AND UNREASONABLE BECAUSE THIS MATTER SHOULD
HAVE BEEN PROPERLY HEARD BEFORE THE OFFICE
OF ADMINISTRATIVE LAW DUE TO THE SIGNIFICANT
CONSTITUTIONAL AND STATUTORY VIOLATIONS, AS
WELL AS TO ENSURE THAT THE COMPETITIVE CIVIL
11 A-0056-13T2
SERVICE TESTING IS NOT ABOLISHED FOR ALL
TITLES
Our scope of review of an administrative agency's final
determination is limited. In re Carter, 191 N.J. 474, 482
(2007). We accord a "strong presumption of reasonableness" to
the agency's exercise of its statutorily delegated
responsibilities. City of Newark v. Natural Res. Council, 82
N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L.
Ed. 2d 245 (1980). The burden of showing that the agency's
action was arbitrary, unreasonable, or capricious rests upon the
appellant. Barone v. Dep't of Human Servs., 210 N.J. Super.
276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
The reviewing court "should not disturb an administrative
agency's determinations or findings unless there is a clear
showing that (1) the agency did not follow the law; (2) the
decision was arbitrary, capricious, or unreasonable; or (3) the
decision was not supported by substantial evidence." In re
Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194
N.J. 413, 422 (2008); see also Circus Liquors, Inc. v. Governing
Body of Middletown Twp., 199 N.J. 1, 9-10 (2009).
Absent arbitrary, unreasonable, or capricious action, or a
lack of support in the record, "[a]n administrative agency's
final quasi-judicial decision will be sustained." In re
Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of
12 A-0056-13T2
Civil Serv., 39 N.J. 556, 562 (1963)). The court "may not
vacate an agency determination because of doubts as to its
wisdom or because the record may support more than one result,"
but is "obliged to give due deference to the view of those
charged with the responsibility of implementing legislative
programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89,
356 N.J. Super. 363, 372 (App. Div.) (citing Brady v. Bd. of
Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281(2003). Nevertheless, we may not simply rubber-stamp an
agency's decision. In re Taylor, 158 N.J. 644, 657 (1999).
Although an appellate court is "in no way bound by the
agency's interpretation of a statute or its determination of a
strictly legal issue," Mayflower Sec. Co. v. Bureau of Sec., 64
N.J. 85, 93 (1973), if 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," Greenwood v. State Police Training Ctr., 127
N.J. 500, 513 (1992) (citing Clowes v. Terminix Int'l, 109 N.J.
575, 587 (1988)).
In 1986, the Legislature passed the current Civil Service
Act, repealing Title 11 and establishing Title 11A of the New
Jersey Statutes. L. 1986, c. 112; Senate Revenue, Finance and
Appropriations Committee, Statement to S. 1567, A. 2194, and S.
13 A-0056-13T2
1829, (Sept. 8, 1986). In doing so, the Legislature made the
following findings and declarations:
a. It is the public policy of this State to
select and advance employees on the basis of
their relative knowledge, skills and
abilities;
b. It is the public policy of this State to
provide public officials with appropriate
appointment, supervisory and other personnel
authority to execute properly their
constitutional and statutory
responsibilities;
c. It is the public policy of this State to
encourage and reward meritorious performance
by employees in the public service and to
retain and separate employees on the basis
of the adequacy of their performance;
d. It is the public policy of this State to
ensure equal employment opportunity at all
levels of the public service; and
e. It is the public policy of this State to
protect career public employees from
political coercion and to ensure the
recognition of such bargaining and other
rights as are secured pursuant to other
statutes and the collective negotiations
law.
[L. 1986, c. 112, § 11A:1-2.]
Title 11A gives the Commission the power to "[a]dopt and enforce
rules to carry out [the Act] and to effectively implement a
comprehensive personnel management system." N.J.S.A. 11A:2-
6(d).
14 A-0056-13T2
It is important to note for the purposes of this appeal
that any waiver of traditional competitive examinations must, as
a constitutional matter, be based on their impracticality. In
In re Foglio, 207 N.J. 38, 40 (2011), the Supreme Court observed
that
[t]he New Jersey Constitution prescribes
that Civil Service appointments "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." N.J. Const. art.
VII, § 1, ¶ 2. The Civil Service Act,
N.J.S.A. 11A:1-1 to 12.6, and the
regulations promulgated thereunder, N.J.A.C.
4:4-1.1 to 7.12, in turn, implement those
merit and fitness principles.
As we explained in Bayonne v. Dougherty, 59 N.J. Super. 288,
295-96 (App. Div. 1960) (citations omitted), appeal dismissed,
34 N.J. 240 (1961),
[t]he Constitutional Convention of 1947
merely wrote into the state charter what had
for years been the keystone of New Jersey's
personnel system. The Legislature has
through the years, by the careful process of
amendment and supplementation of the Civil
Service Act, adopted such provisions as
policy and experience indicated were
necessary, all to the end of strengthening
the merit system. We will not read the
cited section of the Constitution to mean
any more than it says, nor carry the
legislative intention beyond what is
expressly or by clear implication called for
by the statutes.
15 A-0056-13T2
N.J.S.A. 11A:3-2 provides that "[t]he career service shall
have two divisions, the competitive division and the
noncompetitive division." In establishing the noncompetitive
division, the Legislature made the following findings:
a. the importance of fairness and
impartiality in State employment is
recognized in Article VII, Section I,
paragraph 2 of the New Jersey Constitution
which provides that, "Appointments and
promotions in the civil service of the State
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";
b. nevertheless, the framers recognized
that appointments to certain types of
employment are not readily made through a
competitive examination process;
c. accordingly, in implementing the
constitutional provision, the Legislature
has provided in N.J.S. 11A:3-2 that the
career service shall have a competitive
division and a noncompetitive division;
d. it was the purpose of the Legislature,
in making this distinction, to provide for
positions which cannot properly be tested
for, such as lower-level jobs which do not
require significant education or experience,
to be filled without the need of competitive
examination but with civil service
protection for the employee;
e. however, recent published reports
suggest that the purpose of the
noncompetitive division has been subverted
by the transfer into that division of titles
which properly belong in the unclassified
service or in the competitive division of
16 A-0056-13T2
the career service, and the making of
appointments thereto;
f. the apparent reason for this misuse of
the noncompetitive division is to protect
political appointees prior to the beginning
of a new administration; and
g. in order to prevent this abuse of the
civil service system, there is need for a
statutory prohibition on the movement of job
titles and political appointees to the
noncompetitive division of the career
service during the final six months of the
Governor's term in office.
[N.J.S.A. 11A:3-2.1 (emphasis added).]
See also Senate State Government Committee, Statement to S. 2234
(Dec. 6, 1993) ("The purpose of the noncompetitive division is
to enable the State to fill lower-level jobs which do not
require significant education or training and for which a
competitive examination cannot easily be designed.").
We do not hold that only low-level positions may be
assigned to the noncompetitive division, but it is instructive
to note the purpose for which the noncompetitive division was
created and the Legislature's concern that it not be abused.
There may well be positions that require knowledge that is not
readily evaluated through competitive testing. See Benson v.
McCaul, 702 N.Y.S.2d 164, 166-67 (App. Div. 2000) (finding
competitive examination for Risk Management positions to be
impracticable "due to the dynamic nature of the [financial]
17 A-0056-13T2
industry which rendered an examination virtually obsolete before
completion of the competitive process"). And we can envision
other circumstances, not involving low-level positions, in which
a transfer to the noncompetitive division could be appropriate.
N.J.S.A. 11A:3-2 authorizes the Commission to "assign and
reassign such titles to each division and [to] provide for
movement, including promotion, of employees from one division to
the other." N.J.S.A. 11A:3-1 authorizes the Commission to
"assign and reassign titles among the career service." The
Commission's regulations outline the parameters of how it
exercises that authority.
N.J.A.C. 4A:3-1.2, the regulation at issue in this case,
provides as follows:
(a) The Civil Service Commission shall
allocate and reallocate career service
titles between the competitive and
noncompetitive divisions.
(b) A career service job title in the
competitive division is subject to the
competitive examination procedures of
N.J.A.C. 4A:4-2, except as provided in
N.J.A.C. 4A:3-3.2A.
(c) A job title may be placed in the
noncompetitive division on an ongoing or
interim basis when it is determined by the
Civil Service Commission that it is
appropriate to make permanent appointments
to the title and one or more of the
following criteria are met.
18 A-0056-13T2
1. Competitive testing is not
practicable due to the nature of the
knowledge, skills, and abilities
associated with the job;
2. Certification procedures based on
ranked eligible lists have not or are
not likely to meet the needs of
appointing authorities due to such
factors as salary, geographic location,
recruitment problems, and working
conditions; or
3. There is a need for immediate
appointments arising from a new
legislative program or major agency
reorganization.
(d) All appointees to noncompetitive titles
shall meet the minimum requirements set
forth in the job specification and
satisfactorily complete a working test
period.
(e) Prior to any reallocation from the
competitive to noncompetitive divisions,
whether on an ongoing or interim basis, an
administrative review shall be conducted and
notice of the proposed reallocation shall be
sent to affected appointing authorities and
negotiations representatives. The notice
shall designate the period of time, which in
no event shall be less than 20 days, during
which written comment may be submitted, and
may provide for a public hearing.
1. Data, reports, analyses, and other
information utilized in the
determination shall constitute the
administrative record, and shall be
available for review by affected
employees, appointing authorities, and
negotiations representatives.
2. After the comment period and the
public hearing, if any, the Civil
19 A-0056-13T2
Service Commission shall issue a final
administrative decision containing
findings and conclusions with respect
to the proposed reallocation, based
upon the administrative record and any
comment received, and implementation
procedures.
(f) When a job title is reallocated from
the competitive to noncompetitive divisions,
the Commission's decision shall specify an
effective date for reallocation.
1. Permanent employees in that title
as of the effective date shall retain
their permanent status in the
noncompetitive division.
2. Probationary employees in that
title as of the effective date shall
continue serving their working test
periods and, upon successful
completion, attain permanent status in
the noncompetitive division.
3. Provisional employees who remain in
that title as of the effective date
shall receive regular appointments and
begin serving their working test
periods on the effective date.
(g) If a title is designated noncompetitive
on an interim basis, at the end of the
interim noncompetitive period, which shall
be no greater than one year, the job title
shall be redesignated as competitive.
Individuals appointed during the interim
noncompetitive period shall, upon successful
completion of their working test periods,
attain permanent status in the competitive
division.
That regulation was adopted in July 1988. 20 N.J.R. 2255(b)
(Sept. 6, 1988). We note that, in response to concerns about
20 A-0056-13T2
the nature of the administrative process preceding a
reallocation from the competitive to the noncompetitive
division, the agency responded that N.J.A.C. 4A:3-1.2(e) is
supposed to "provide[] for a thorough administrative review
process." 20 N.J.R. 2256(b) (Sept. 6, 1988).
In reaching its decision in this case, the Commission
relied on N.J.A.C. 4A:3-1.2(c)(2), which allows transfers to the
noncompetitive division when "[c]ertification procedures based
on ranked eligible lists [would] not or are not likely to meet
the needs of appointing authorities." Having reviewed the
record before us, we conclude that it contains very few pieces
of objective evidence, such as the "[d]ata, reports, analyses,
and other information" contemplated by N.J.A.C. 4A:3-1.2(e)(1),
demonstrating that the AOC was experiencing significant
recruitment problems for the Probation Officer and Bilingual
Probation Officer titles at the time it appealed. In support of
its application, the AOC cited only one, not overly specific
problem, which was that "at least four vicinages [had] exhausted
[their] current pool and several others [were] close to
exhausting their pools for the Probation Officer Bilingual
title." The record does not contain more specific factual
information concerning the parameters of that problem, such as
how often it occurs and whether court operations had been
21 A-0056-13T2
adversely affected. In addition, a shortage in the pool for the
Bilingual Probation Officers would not, by itself, necessitate a
reallocation of the Probation Officer title to the
noncompetitive division, even if it were to justify the
reallocation of Bilingual Probation Officers.
The Commission's decision quotes the Division's comment
that there were "no eligible lists for the subject titles" at
the time the decision to make the program permanent was made.
It is silent, however, as to whether the lack of lists was
related to an operational problem at the Commission, or merely
the cessation of developing such lists while the pilot program
was taking place and in anticipation that it would be made
permanent. Certainly, the AOC was able to identify many
candidates for the positions during the pilot project. We find
it unlikely that the competitive process suddenly failed to
produce eligible lists, inasmuch as the AOC has been relying on
it for more than fifty years. The fact that the Commission was
simply not ready to resume the usual procedure at the end of the
pilot program is not an acceptable reason for making the program
permanent.
The Commission points to the fact that the reallocation
"[would] provide the AOC with the flexibility needed to more
efficiently and quickly meet hiring responsibilities." However,
22 A-0056-13T2
the need for flexibility in hiring is not listed as one of the
circumstances that would permit the Commission to place a job
title in the noncompetitive division. N.J.A.C. 4A:3-1.2(c)(1)
to -(3). Instead, N.J.A.C. 4A:3-1.2 allows for limited, interim
noncompetitive appointments in the event that there is an
immediate need for additional personnel.
The Association argues that the Commission should have held
a hearing. N.J.S.A. 11A:3-6 only requires the Commission to
hold a public hearing prior to transferring a title from the
career service to the unclassified service. N.J.A.C. 4A:3-
1.2(e), however, vests the Commission with the discretion to
conduct a public hearing "[p]rior to any reallocation from the
competitive to noncompetitive divisions." Because it does not
mandate such a hearing, we cannot conclude that one is required.
Nevertheless, in a fact-sensitive case such as this one appears
to be, the Commission should seriously consider a transfer to
the OAL for a hearing. See Commc'ns Workers of Am. v. N.J.
Dep't of Pers., 154 N.J. 121, 131-32 (1998).
Finally, we return to the constitutional dimension of this
case, which governs its outcome over and above the statutory and
regulatory requirements discussed above. Because our
Constitution requires that public service appointments be made
by competitive examination "as far as practicable," Foglio,
23 A-0056-13T2
supra, 207 N.J. at 40, consideration must be given to whether
the AOC has demonstrated that it is impracticable for it to
continue filling Probation Officer and Bilingual Probation
Officer positions through open, competitive examinations. That
is a question that must be considered separately as to each
title. That the noncompetitive process is more flexible does
not, in our view, mean that the competitive process is not
practicable within the meaning of the constitutional
requirement. We see nothing in the Commission's decision to
suggest that it considered the constitutional issue, which was
raised by the Association in its opposition.
Because the factual record underlying the Commission's
decision is overly sparse, we conclude that there are
insufficient facts to support the decision to grant the transfer
of the Probation Officer and Bilingual Probation Officer titles
to the noncompetitive division, rendering it arbitrary and
capricious. In addition, and more importantly, the Commission's
failure even to consider the issue of whether it is
impracticable for the AOC to continue filling Probation Officer
and Bilingual Probation Officer positions through open,
competitive examinations renders the decision legally defective.
Consequently, we reverse the order on appeal and remand for
further consideration by the Commission, consistent with this
24 A-0056-13T2
opinion. The Commission's reconsideration must include the
development of the type of factual record required for a
meaningful evaluation of the AOC's proposal under the applicable
statutory and regulatory provisions and, again most importantly,
the provisions of article VII, section 1, paragraph 2 of the New
Jersey Constitution.
Reversed and remanded.
25 A-0056-13T2