IN THE MATTER OF JOSEPH LANG(NEW JERSEY CIVIL SERVICE COMMISSION)

NOT FOR PUBLICATION WITHOUT THE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-2286-14T2
IN THE MATTER OF JOSEPH LANG.
______________________________
Submitted February 28, 2017 - Decided July 11, 2017
Before Judges Ostrer and Vernoia.
On appeal from the New Jersey Civil Service
Commission, CSC Docket Nos. 2015-342, 2015-
1335, 2015-1336, 2015-1337 and 2015-1338.
Fein, Such, Kahn & Shepard, P.C., attorneys
for appellant Joseph Lang (Brian W. Kincaid,
on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Civil Service
Commission (Melissa H. Raksa, Assistant
Attorney General, of counsel; Todd A. Wigder,
Deputy Attorney General, on the brief).
PER CURIAM
Appellant Joseph Lang appeals from a December 5, 2014 final
agency decision of the Civil Service Commission (Commission)
denying his request for retroactive permanent appointment to the
second-level supervisor title of Fire Captain with the Harrison
Fire Department. We affirm.
I.
Lang was employed by the Harrison Fire Department as a Fire
Captain, which at the time was a first-level supervisor title. In
2009, he passed a promotional examination for the second-level
supervisor title, which was then known as Battalion Fire Chief.
Lang and Henry Richard, Joseph Nichirco, John Dwyer and John
Crilley, who were also eligible for promotion to the Battalion
Fire Chief title, were placed on an eligible list that was
effective for a three-year period commencing on September 2, 2010.
Richard ranked first on the list, Nichiro was second, and Lang was
third. In 2011, Richard was promoted to Battalion Fire Chief.
Due to financial difficulties, Harrison implemented layoffs
in 2011, eliminating the Deputy Fire Chief and Battalion Fire
Chief titles and reducing the number of first-level supervisor
Fire Captains from ten to five. Under the plan, the fire department
consisted of a Fire Chief, five Fire Captains and twenty-four Fire
Fighters.
As a result of the layoffs, Richard was demoted from Battalion
Fire Chief to the second-level supervisor Fire Captain title. The
four Fire Captains with the greatest seniority, Nichirco, Dwyer,
John Mulrenan and Robert Gillen, retained their titles as Fire
Captains. Because they had less seniority, Lang and another Fire
Captain, Ronald Greenemeier, were demoted to Fire Fighters.
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Harrison subsequently negotiated an agreement with the
affected employees' collective negotiations representative. Under
the agreement, Harrison created a new first-level supervisor title
of Fire Lieutenant,1 and the Fire Captain title became a second-
level supervisor title.
In November 2011, Harrison informed the Commission about a
plan to reorganize the department. Harrison stated the department
would consist of a Fire Director,2 five second-level supervisor
Fire Captains, four first-level supervisor Fire Lieutenants, and
twenty Fire Fighters. To implement the reorganization, Harrison
sought the Commission's approval to promote Richard, Dwyer,
Nichirco, and Lang to the second-level supervisor Fire Captain
title. Harrison also proposed making a provisional appointment of
Mulrenan, Gillen, or Greenemeier to the fifth Fire Captain
position.
In a December 8, 2011 letter responding to Harrison's
proposal, the Commission advised that Richard, Nichirco, Mulrenan,
Dwyer and Gillen were already serving in the Fire Captain title.
The Commission further stated that Lang and Greenemeier were in
1
Harrison subsequently adopted an ordinance creating the first-
level supervisory title of Fire Lieutenant.
2
Following the implementation of the layoff plan, Harrison
eliminated the Fire Chief title and placed the supervision of the
fire department with a civilian Fire Director.
3 A-2286-14T2
the Fire Fighter's title and therefore would have to first be
appointed to the Fire Lieutenant title through certification of
the special reemployment list for a first-level supervisor title.
In June 2012, Lang and Greenemeier were appointed Fire
Lieutenants. Harrison did not take any action to appoint Richard,
Dwyer, Nichirco, Mulrenan, or Gillen to the second-level
supervisor Fire Captain title. Two years later, its failure to do
so provided the basis for the requests by Harrison and Lang for
the retroactive appointments to the second-level supervisor Fire
Captain title that are at issue here.
In 2014, the Commission announced a Fire Captain test.
Harrison requested to be included in the test but only for a
second-level supervisor Fire Captain title. The Commission advised
the test would be a second-level supervisor's test, which was open
to Fire Lieutenants.
Harrison was subsequently advised by the Commission that
three of Harrison's Fire Captains, Nichirco, Dwyer and Gillen,3
were required to take the test. Harrison objected and asserted
that Nichirco, Dwyer and Gillen were in their Fire Captain titles
3
Richard was not required to take the test because he had been
appointed to a second-level supervisor position from the 2010
Battalion Fire Chief promotional list prior to his 2011 demotion
to Fire Captain. Mulrenan had applied for retirement and was not
required to take the test.
4 A-2286-14T2
pursuant to the Commission's December 8, 2011 letter. Harrison
also asserted it did not request certification for its 2011
appointments of Richard, Nichirco and Dwyer to the Fire Captain
title from the Battalion Fire Chief eligible list because it
implemented the Commission's directive in the letter. Harrison
noted it never intended to require that Dwyer and Nichirco take
the Fire Captain test because they performed the second-level
supervisor's duties for two years and were on the 2010 Battalion
Fire Chief promotional list, which expired in 2013.
Harrison also argued that had it known the Commission would
require that Dwyer and Nichirco take a Fire Captain's test in
2014, it would have requested in 2011 that the Commission certify
the list for appointments to the second-level supervisor Fire
Chief title, and would have promoted Dwyer and Nichirco from the
list. Harrison also argued that, for the same reason, it would
have appointed Lang in 2011 to Fire Chief because he was also on
the Battalion Fire Chief eligible list.
Harrison requested that the Commission revive the expired
Battalion Fire Chief eligible list to permit the appointment of
Nichirco, Dwyer and Lang to the second-level supervisor Fire Chief
title. Harrison further requested that the Commission waive the
requirement that Gillen take the test because he performed the
duties of a Fire Captain since 2011, and passed a second-level
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supervisor exam in 2000, and therefore did not need any further
testing.
In its December 5, 2014 final decision, the Commission found
that when Harrison reorganized the fire department in 2011, it
failed to follow required certification procedures for the second-
level supervisors, and "simply left . . . Richard, Nichirco,
Mulrenan, Dwyer and Gillen unchanged in their position of Fire
Captain." The Commission also stated that Harrison "failed to
follow certification procedures and timely appoint" Richard,
Dwyer, and Nichirco as "second-level supervisors from" the
Battalion Fire Chief eligible list, and failed to make "provisional
appointments pending promotional examinations for . . . Gillen and
Mulrenan." Harrison erred by failing to make changes to the
official records after the 2011 reorganization. The Commission
determined Harrison's failure "to take [the] steps to effectuate
appointments from the Battalion Fire Chief . . . list is a clear
administrative error on its part."
The Commission determined Richard was unaffected by
Harrison's errors because he had been appointed to the second-
level supervisor Battalion Fire Chief title, and his regular
appointment to Fire Chief could be made from the special
reemployment list during the 2011 reorganization. Based on
equitable considerations, the Commission concluded it was
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appropriate to revive the Battalion Fire Chief eligible list and
retroactively appoint Dwyer and Nichirco from it because they were
otherwise eligible for appointment from the list in 2011, and
performed the duties of a second-level supervisor Fire Captain
since that time. The Commission rejected Harrison's request for a
waiver from the test requirement for Gillen because he was not on
the Battalion Fire Chief eligible list and therefore was not
entitled to a retroactive appointment based on the requested
revival of the list.
The Commission also denied Lang's request for a retroactive
permanent appointment to Fire Captain from the Battalion Fire
Chief eligible list. The Commission determined Lang did not have
a vested property interest in the Fire Chief position because the
list expired in 2013. The Commission found Lang did not commence
or complete a working test period in the second-level supervisor
Fire Captain title, hold a provisional second-level supervisor
title, or perform the duties of a second-level supervisor. The
Commission noted that in November 2012, it made a classification
determination that Lang was performing first-level supervisor Fire
Lieutenant duties, and Lang did not appeal the Commission's
decision.
The Commission also reasoned that if in 2011 Harrison had
properly requested certification of the Battalion Fire Chief
7 A-2286-14T2
eligible list and the special reemployment list, Richard, Nichirco
and Dwyer would have been removed from the eligible list based on
their appointments to the Fire Captain title. Their appointments
would have left only Lang and Crilley on the list, thereby
rendering the list incomplete. The Commission stated that because
Lang had never performed second-level supervisor duties following
the 2011 reorganization, it could not be assumed Harrison would
have appointed Lang a Fire Captain from the Batallion Fire Chief
list if Harrison had not erred in failing to properly make the
2011 Fire Captain appointments. The Commission concluded that Lang
was not entitled to a retroactive permanent appointment to the
Fire Captain title because in 2011, Harrison knew it could have
only five Fire Captains, five persons were performing Fire Captain
duties, and "Lang was not one of them." Lang appealed the
Commission's final decision.4
II.
Our review of an agency's decision is limited. In re
Stallworth, 208 N.J. 182, 194 (2011). We "afford[] a 'strong
presumption of reasonableness' to an administrative agency's
exercise of its statutorily delegated responsibilities." Lavezzi
v. State, 219 N.J. 163, 171 (2014) (quoting City of Newark v. Nat.
4
Harrison did not appeal.
8 A-2286-14T2
Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539, cert.
denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980)). A
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).
The party challenging the agency's action has the burden of proving
that the action was arbitrary, capricious, or unreasonable.
Lavezzi, supra, 219 N.J. at 171.
Lang argues the Commission's decision was made without a
rational basis and is arbitrary, capricious and unreasonable. He
contends the Commission erred in finding that he never performed
second-level supervisor duties because he performed such duties
prior to the 2011 reorganization. He asserts he was entitled to
the requested retroactive appointment because he was on the
Battalion Fire Chief eligible list, and he is similarly situated
to Nichirco and Dwyer and the Commission granted retroactive
appointments to them.
The Commission has the authority to revive an expired eligible
list "to correct an administrative error." N.J.S.A. 11A:4-6;
N.J.A.C. 4A:4-3.4. The Commission exercised its authority here to
9 A-2286-14T2
permit Harrison to retroactively appoint Nichirco and Dwyer to the
Fire Captain title because Harrison's failure to properly appoint
them in 2011 was based on the erroneous belief the Commission's
December 8, 2011 letter rendered the appointments unnecessary. The
Commission reasoned that but for Harrison's administrative errors,
Harrison would have properly appointed Nichirco and Dwyer in 2011
from the Battalion Fire Chief eligible list which was then in
effect. The Commission's decision that Harrison would have
otherwise appointed Nichirco and Dwyer in 2011 is supported by the
evidence showing that Nichirco and Dwyer were promoted to the
second-level supervisor Fire Captain title during the
reorganization based on the Battalion Fire Chief eligible list,
and performed the duties of the title thereafter.
Lang's arguments are based on the premise that he is
identically situated to Nichirco and Dwyer, and the Commission
therefore arbitrarily denied his request for the retroactive
appointment. The evidence presented to the Commission demonstrated
otherwise. Unlike Nichirco and Dwyer, Harrison could not have
appointed Lang to the second-level supervisor Fire Captain title
in 2011 because he had been demoted to Fire Fighter as part of the
2011 layoffs and therefore was not eligible for a second-level
supervisor position. Moreover, in 2011 Harrison did not take any
action to appoint Lang to the second-level supervisor title as it
10 A-2286-14T2
did for Nichirco and Dwyer. Instead, Harrison appointed Lang to a
first-level supervisor title, Fire Lieutenant. In addition, the
evidence showed Nichirco and Dwyer performed second-level
supervisor duties at all times following the 2011 reorganization,
and that Lang performed only first-level supervisor duties as a
Fire Lieutenant.
The evidence supports the Commission's determination that
Harrison's 2011 administrative errors in failing to properly
appoint Nichirco and Dwyer warranted their retroactive
appointments. The evidence also showed Harrison's errors had no
impact on Lang because even without them, he would not have been
appointed to the second-level supervisor Fire Captain title. Thus,
Lang stood in shoes very different from those of Nichirco and
Dwyer. Left unremedied, Harrison's 2011 errors adversely affected
Nichirco and Dwyer. The errors, however, were irrelevant to Lang's
appointment in 2011, and the Commission therefore reasonably
determined there was no basis to retroactively appoint Lang to
Fire Captain.
The Commission's determination that Lang was not entitled to
a retroactive appointment based on Harrison's 2011 administrative
errors is well-reasoned and supported by the evidence. We do not
discern anything arbitrary, capricious, or unreasonable in the
11 A-2286-14T2
Commission's decision, and Lang has not established it was contrary
to law. See Virtua-West Jersey Hosp., supra, 194 N.J. at 422.
Lang's remaining arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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