IN THE MATTER OF VINCENT ANTENUCCI, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2165-19
IN THE MATTER OF
VINCENT ANTENUCCI,
DIVISION OF STATE POLICE,
DEPARTMENT OF LAW AND
PUBLIC SAFETY.
____________________________
Argued October 12, 2021 – Decided October 27, 2021
Before Judges Rothstadt and Mayer.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2019-3633.
Michael A. Bukosky argued the cause for appellants
Vincent Antenucci and the State Trooper's Non-
Commissioned Officers Association (Loccke, Correia,
& Bukosky, attorneys; Michael A. Bukosky and Corey
M. Sargeant, of counsel and on the briefs).
Eric A. Reid, Deputy Attorney General, argued the
cause for respondent New Jersey Civil Service
Commission (Andrew J. Bruck, Acting Attorney
General, attorney; Sookie Bae-Park, Assistant Attorney
General, of counsel; Eric A. Reid, on the brief).
PER CURIAM
Vincent Antenucci and the State Trooper's Non-Commissioned Officers
Association (Association) appeal from a December 23, 2019 final decision of
the Civil Service Commission (Commission) denying Antenucci's request for
waiver of a repayment of salary overpayment under N.J.A.C. 4A:3-4.21. We
affirm.
We briefly recount the relevant facts. Antenucci is employed by the New
Jersey State Police. In 2012, he received a job promotion. Due to a purported
administrative error, the New Jersey State Police inadvertently placed Antenucci
on the wrong salary level. Instead of a modest raise, Antenucci's salary
increased to $87,913.02 instead of $81,840.18.
Over the years, Antenucci received three more promotions and the alleged
salary error compounded. In May 2019, the New Jersey State Police informed
Antenucci of a salary overpayment in the amount of $29,000 and advised he
would have to return the money.
Antenucci applied to the Commission for a repayment waiver under
N.J.A.C. 4A:3-4.21. He argued the overpayment resulted from an
administrative error by the New Jersey State Police, he was unaware of the
overpayment because he was due for a salary increase at the time of initial
overpayment, and repayment would cause his family to suffer an economic
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hardship. The Commission rejected the waiver because Antenucci failed to
show he was reasonably unaware of the error and repayment would cause him
economic hardship.
In support of his contention that repayment of the $29,000 amount would
cause economic hardship, Antenucci provided the Commission with his monthly
household budget. The budget showed credit card debts, an unpaid home equity
line of credit debt, an outstanding personal loan, and other monthly expenses,
including cable service, which exceeded his family's monthly net income.
The Commission rejected Antenucci's request for a waiver of salary
overpayment request. To be entitled to a waiver under the regulation, Antenucci
needed to demonstrate: (1) the overpayment was such that the employee could
reasonably have been unaware of the error; (2) the overpayment resulted from a
specific administrative error and was not due to mere delay in processing a
change in pay status; and (3) the terms of the repayment schedule resulted in an
economic hardship to the employee. See N.J.A.C. 4A:3-4.21.
The Commission found "the record clearly shows that an administrative
error resulted in the salary overpayment," thereby satisfying one of the
requirements under N.J.A.C. 4A:3-4.21. However, the Commission concluded
Antenucci failed to satisfy the regulation's other requirements for entitlement to
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a waiver. The Commission determined the nearly $10,000 salary increase was
substantial enough that Antenucci should have been on notice a salary error
occurred. The Commission also rejected Antenucci's argument that repayment
would cause economic hardship because the "the appointing authority ha[d] not
set any repayment schedule."
Following issuance of the Commission's decision, the Association became
involved in the matter. In January 2020, the Association filed a grievance with
the Public Employment Relations Commission (PERC) against the New Jersey
State Troopers. The issues raised in the Association's brief in this appeal have
been submitted to PERC for resolution. During oral argument, we were advised
an arbitration hearing before PERC is scheduled for December 2021.
The sole issue for our review is whether the Commission's denial of
Antenucci's request for a waiver of the repayment of his salary overpayment was
arbitrary, capricious, unreasonable, or lacked support in the record. Antenucci
presented no other issues to the Commission. Appeals to this court involve
"review[ing] final decisions or actions of any state administrative agency or
officer." R. 2:2-3.
Here, the arguments on appeal, other than the Commission's denial of
Antenucci's request for waiver of any repayment of his salary overpayment, have
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been presented to PERC as part of a grievance filed by the Association and are
not properly before this court for review. See Nieder v. Royal Indem. Ins. Co.,
62 N.J. 229, 234 (1973). The Association's newly raised arguments on appeal
will be adjudicated by a PERC arbitrator, including the disputed salary
overpayment. We further note PERC's adjudication of the Association's
grievance does not bar Antenucci's filing a new waiver application pending
PERC's determination on the issue of any salary overpayment.
Our scope of review of an administrative agency's final determination is
limited. In re Herrmann, 192 N.J. 19, 27 (2007). "An administrative agency's
final quasi-judicial decision will be sustained unless there is a clear showing that
it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the
record." Id. at 27-28. The burden of proving a decision was arbitrary,
capricious, or unreasonable is on the party challenging the agency action.
Lavezzi v. State, 219 N.J. 163, 171 (2014) (citing In re J.S., 431 N.J. Super. 321,
329 (App. Div. 2013)).
When reviewing an agency decision, we examine (1) whether the agency
action violated "express or implied legislative policies," (2) whether there is
substantial evidence in the record to support the agency's decision, and (3)
whether in applying the law to the facts, the agency reached a conclusion that
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"could not reasonably have been made on a showing of the relevant factors."
Allstars Auto. Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157
(2018). Where an agency's decision satisfies these criteria, we accord
substantial deference to the agency's fact-finding and legal conclusions,
recognizing "the agency's 'expertise and superior knowledge of a particular
field.'" Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J.
1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500,
513 (1992)).
N.J.A.C. 4A:3-4.21 sets forth the standards for a waiver of repayment of
a salary overpayment. The regulation requires an applicant to show the
following:
1) the circumstances and amount of the overpayment
were such that an employee could reasonably have been
unaware of the error; 2) the overpayment resulted from
a specific administrative error, and was not due to mere
delay in processing a change in pay status; 3) the terms
of the repayment schedule would result in economic
hardship to the employee.
[N.J.A.C. 4A:3- 4.21.]
Here, the Commission agreed Antenucci's purported salary overpayment
occurred because of an administrative error. While Antenucci met one of the
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requirements of N.J.A.C. 4A:3- 4.21, he was required to satisfy all three
components of the regulation to be entitled to a waiver.
The Commission reviewed Antenucci's circumstances to determine
whether he was reasonably aware of the salary error and if repayment would
cause him economic hardship. Antenucci argued it was unreasonable for him to
be aware or question the increase he received. Since he expected a pay raise,
Antenucci presumed the extra money in his paycheck was part of his planned
raise. Antenucci further claimed an employee in his position, someone who is
not an accountant or other financial professional, could reasonably have been
unaware of the salary error.
The Commission rejected these arguments. The Commission explained
compensation for New Jersey State Troopers is public information and there
were several other sources of information Antenucci could and should have
consulted to conclude the salary amount was incorrect. Additionally, the
Commission concluded the substantial salary increase itself should have caused
Antenucci to investigate.
Antenucci also argued repayment would cause his family to suffer
economic hardship. According to Antenucci, the family's monthly budget
demonstrated an inability to incur an additional monthly expense.
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The Commission determined Antenucci failed to demonstrate economic
hardship because the New Jersey State Police had not set a repayment schedule.
Because no repayment schedule had been established, Antenucci failed to satisfy
his burden of showing an inability to repay his salary overpayment for
entitlement to a waiver.1 Further, the Commission concluded certain monthly
expenses incurred by Antenucci and his family were non-essential and therefore
repayment would not result in economic hardship because Antenucci could
adjust his monthly expenses when a repayment schedule is established.
Having reviewed the record, we discern no basis for disturbing the
Commission's decision on Antenucci's waiver request. The Commission's
determination, based on the undisputed evidence in the record, was not arbitrary,
capricious, or unreasonable. Antenucci's remaining arguments are presently
pending a scheduled hearing before a PERC arbitrator. Our affirmance of the
Commission's December 23, 2019 decision is based on the record before the
agency on that date. Nothing precludes Antenucci's filing of a new waiver
1
During oral argument, counsel confirmed the New Jersey State Troopers have
yet to establish a repayment schedule to collect Antenucci's purported salary
overpayment.
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application after the PERC arbitrator renders a decision on the Association's
grievance claims.
Affirmed.
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