LIONELL MILLER VS. NEW JERSEY DEPARTMENT OF CORRECTIONSÂ (NEW JERSEY DEPARTMENT OF CORRECTIONS)

NOT FOR PUBLICATION WITHOUT THE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-5138-13T3
IN THE MATTER OF
JOSEPH INVERSO,
STATE PAROLE BOARD
___________________________
Argued December 20, 2016 – Decided April 11, 2017
Before Judges Ostrer and Leone.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2014-1210.
Melvin M. Wright, Jr., argued the cause for
appellant Joseph Inverso.
Pamela N. Ullman, Deputy Attorney General,
argued the cause for respondent New Jersey
Civil Service Commission (Christopher S.
Porrino, Attorney General, attorney; Melissa
H. Raksa, Assistant Attorney General, of
counsel; Todd A. Wigder, Deputy Attorney
General, on the brief).
PER CURIAM
Joseph Inverso appeals from the Civil Service Commission's
April 29, 2014 final decision, denying his request for relief from
the September 26, 2013 decision terminating him from a provisional
appointment with the New Jersey State Parole Board. We affirm.
After holding other positions with the Board, Inverso was
promoted to the Hearing Officer II title in February 2000. Three
years later, he was demoted and provisionally appointed to the
position of Senior Management Assistant. The demotion followed
the Personnel Department's1 determination that Inverso did not
satisfy the Hearing Officer II position's college degree
educational requirement.2 Two other hearing officers were demoted
for the same reason at that time, but five similarly unqualified
officers were allowed to retain their title because they held the
job over ten years. In a memorandum dated August 18, 2003, the
Board's executive director informed Inverso that he qualified for
the Senior Management Assistant title, but his appointment would
be "pending open competitive examination."
Inverso's union filed a grievance with the Board on behalf
of the three demoted officers, contending it acted arbitrarily in
1 Effective June 30, 2008, the Commission assumed the
responsibilities of the former Department of Personnel. See
Silviera-Francisco v. Bd. of Educ. of Elizabeth, 224 N.J. 126, 138
n.5 (2016).
2 The "college graduate" box was checked off on the form the Board
originally submitted to the Personnel Department in 2000, which
sought approval of Inverso's appointment to the Hearing Officer
II position. In an August 23, 2013 letter to the Commission,
which we discuss below, the Board's chairman at the time, James
T. Plousis, stated that Inverso had earned a county college
associate's degree, but he did not say when it was earned. In any
event, apparently a bachelor's degree was required.
2 A-5138-13T3
demoting some, but grandfathering other hearing officers. On July
19, 2004, the union, the Board and the three former hearing
officers — including Inverso — entered into a settlement
agreement.3 It stated that Inverso, "who has the necessary
experience to hold the title of Hearing Officer II[,] will remain
in the classified service title of Senior Management Assistant.
This action will be backdated to September 6, 2003."
In an apparent reference to the educational requirements of
the Hearing Officer II title, the agreement stated, "Upon
completion of the degree requirement the grievants shall be
considered for promotion to the title of Hearing Officer II at the
New Jersey State Parole Board."
Another paragraph pertaining to education was stricken by
line-throughs and accompanied by a handwritten annotation, "Not
Required." The modification was also initialed in the margin.
Inverso argues the initials were inscribed by a Commission
representative, Arthur Finkel.4 The stricken paragraph states,
"The grievants shall be given five (5) years to complete the
educational requirement of a bachelor's degree from an accredited
3 The parties signed the agreement on various dates, the latest
being July 19, 2004.
4 The initials are difficult to discern and could easily be read
as "AJC." Inverso's argument that Finkel initialed the document
is unsupported by a certification or any other competent evidence.
3 A-5138-13T3
college or university. The five (5) year window shall commence
on the date that this agreement is signed by all parties."
The agreement added that if the grievants were reinstated to
the Hearing Officer II title, all their prior service in the title
would be "bridged" in calculating seniority for layoff purposes.
The only signatories of the agreement were the three grievants,
their union representative, and the Board's employee relations and
training administrator, Hank Fichter. The agreement stated that
"[a]uthorization has been given by the New Jersey State Parole
Board to agree to this settlement." Notwithstanding the initials
attributed to Finkel, the Commission was not a stated party to the
agreement, nor did a Commission representative sign the agreement.5
Inverso still held the Senior Management Assistant title in
September 2007, when the Commission informed the Board that Inverso
was required to test for the Senior Management Assistant title and
5 In his August 23, 2013 letter, Plousis contended, based on Board
records, that Fichter, the Board's representative, had sent a
draft of the agreement to the Personnel Department. Based on
Plousis's interpretation of a post-it note in Fichter's
handwriting — which is not in the record — Plousis alleged that
Finkel provided "verbal input" into the agreement. Plousis also
noted that the fax routing slip to the Commission stated that one
Bill Johnson, who worked at the Office of Employee Relations within
the Governor's Office, "finalized" the agreement. We may take
notice that Plousis was the U.S. Marshal of New Jersey when the
agreement was negotiated and therefore had no personal involvement
in it. See History of District of New Jersey (March 28, 2017),
https://www.usmarshals.gov/district/nj/general/history.htm.
4 A-5138-13T3
meet its college degree requirement.6 Inverso apparently failed
to do so. Accordingly, when the Commission certified an open
competitive list for the position in September 2010, it omitted
Inverso. As a result, the Commissioner then instructed the Board
to lay off Inverso.
According to Plousis, Inverso "[was] unaware that [he] had
to monitor the CSC's website to apply for the examination . . . ."7
Inverso appealed the Commission's instruction and was permitted
to file for and take the next test. But he did not pass, and his
name did not appear on the next eligible list promulgated on April
18, 2013, expiring April 17, 2016.8 The Board was again instructed
to lay off Inverso.
In his August 2013 letter, Plousis asked the Commission to
permit the Board either to retain Inverso in his position as Senior
Management Assistant or place him in an unclassified position.
6 The Commission's directive is not included in the record. We
rely in part on Plousis's recitation of the background of the case
in his August 2013 letter.
7 Plousis's statement is unsupported by a certification from
Inverso.
8 Initially, Inverso was not permitted to take a make-up
examination because he was found by the Division of State and
Local Operations (SLO) to be performing the duties of a Technical
Assistant 3 instead of Senior Management Assistant. Approximately
six weeks later, SLO reversed its conclusion and found he did
perform Senior Management Assistant duties.
5 A-5138-13T3
Plousis referred to Inverso's experience and demonstrated fitness,
his almost fifteen years of valuable and unblemished service, his
attainment of a county college associate's degree, and notions of
fundamental fairness.
The Commission reportedly responded to Plousis's request on
September 25, 2013.9 As described in the Commission's 2014
decision, the letter rejected the Board's request to grandfather
Inverso in the Senior Management Assistant title. But the
Commission permitted the Board to move him into an unclassified
position if the Board had one available and Inverso were "assigned
duties commensurate with the unclassified title." The Commission
rejected grandfathering Inverso because the Board itself had
previously requested permission to eliminate the title as it was
"no longer needed due to a restructuring of job duties and workflow
9 Neither party included the letter in the record. Furthermore,
although the Commission refers to it at length in the decision on
appeal, the Commission inexplicably omitted it from its Statement
of Items Comprising the Record. See R. 2:5-4 ("Within 30 days of
the service upon it of the notice of appeal the agency or officer
from which the appeal is taken shall file in the appellate court
a statement of the items comprising the record on appeal and shall
serve a copy thereof on each party to the appeal."). We remind
agencies of the importance of complying with the Rule, which is
designed "[t]o ensure that the parties and the appellate court
have a complete understanding of the record at the administrative
level." Jeffrey S. Mandel, New Jersey Appellate Practice, § 22:1-
2(e) at 445 (2016).
6 A-5138-13T3
procedures."10 Also, the Board had requested reclassification of
the Senior Management Assistant title, representing to the
Commission that, once reclassified, incumbents in the Senior
Management Assistant title would be terminated.
On September 26, 2013, the Board informed Inverso that the
Commission had rejected Plousis's "request to grandfather [him]
into [his] current provisional title of Senior Management
Assistant," because "it would not be appropriate." It advised
Inverso that his "position with the NJ State Parole Board [would]
be terminated effective October 11, 2013." The Board's letter to
Inverso did not address Plousis's alternative request for
permission to place Inverso in another unclassified position in
the agency, which the Commission conditionally approved.11
In October 2013, Inverso's union representative appealed to
the Commission the termination and refusal to grandfather him in
the Senior Management Assistant position. The representative
contended the termination violated the July 19, 2004 settlement
10 The Commission stated that it issued a decision November 7,
2013, approving the Board's request, entitled In the Matter of
Senior Management Assistant (S0562P), Statewide, CSC 2014-445,
Final Decision (November 7, 2013).
11Notably, by this time, Plousis had been succeeded by Yolette C.
Ross as the Board's chair.
7 A-5138-13T3
agreement. He also asked that Inverso be placed in another
position with the Board.
In its April 29, 2014 final decision, the Commission denied
Inverso's appeal. The Commission found that Inverso's reliance
on the settlement agreement was misplaced, stating the agreement
was neither "presented to nor acknowledged by the Commission."
Further, the Commission held that it had "no role" in the
agreement's creation, notwithstanding "the claim that agency staff
members were involved." Consequently, the Commission was not
bound by it.
The Commission determined that since Inverso undisputedly and
knowingly held a provisional title, he lacked a property interest
in the title and could be removed at will. The Commission found
insufficient grounds to waive the testing requirement and
"grandfather" him into the Senior Management Assistant title
because the testing requirement was an integral aspect of the
"process of selection and appointment." Also, the Commission
noted he failed to pass the exam yet held the position for many
years.
This appeal followed. Inverso contends the Commission should
be "equitably estopped from reclassifying" his Senior Management
Assistant position because he detrimentally relied on the July 19,
2004 settlement agreement. He also contends the decision not to
8 A-5138-13T3
grandfather him as a hearing officer, while grandfathering five
others in 2003, was arbitrary and capricious and violated his
rights to equal protection. As a result, he argues he should be
placed in the hearing officer position. We reject these arguments.
We exercise a limited scope of review. In re Williams, 443
N.J. Super. 532, 540 (App. Div. 2016). "[A] strong presumption
of reasonableness attaches to the Commission's decision," and
appellant bears the burden to justify reversal. Id. at 540-41
(internal quotation marks and citations omitted). "To that end,
we will '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.'" Id. at 541 (quoting In re Application of
Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194
N.J. 413, 422 (2008)). On the other hand, we are not bound by the
agency's legal determinations, including its statutory
interpretation, Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85,
93 (1973), and we will not merely "rubber stamp an agency's
decision." Williams, supra, 443 N.J. Super. at 541 (internal
quotation marks and citation omitted).
We are also guided by a fundamental principle: "The Civil
Service Act . . . carries out the New Jersey constitutional purpose
9 A-5138-13T3
that public service positions be filled according to individual
merit and fitness, demonstrated as far as practicable through a
competitive examination process." In re Tavani, 264 N.J. Super.
154, 159-60 (App. Div. 1993) (citing N.J. Const. art. VII, § I, ¶
2). The Act itself and its implementing regulations expressly
promote this aim. See N.J.S.A. 11A:1-2(a) (noting the Act is
intended to "select and advance employees on the basis of their
relative knowledge, skills and abilities"); N.J.S.A. 11A:4-1
(authorizing development of competitive examinations); N.J.A.C.
4A:4-2.2(a) (directing Commissioner to administer examinations for
certain positions). Statutory provisions that grandfather
employees and exempt them from examinations are at odds with this
fundamental goal, and should be "construed restrictively."
Tavani, supra, 264 N.J. Super. at 160. The same strict
construction should apply to an agreement that poses a similar
threat to statutory and constitutional goals of a competitive
civil service.
A civil service employer makes regular appointments from
lists of eligible candidates that the Commission establishes after
examinations. See In re Foglio, 207 N.J. 38, 44 (2011). By
contrast, provisional appointments may be made when there is no
certified list from which to fill a vacancy. In re Chief Clerk,
282 N.J. Super. 530, 533-34 (App. Div.) (stating "a provisional
10 A-5138-13T3
appointee holds his or her 'employment in the competitive division
of the career service pending the appointment of a person from an
eligible list'" (quoting N.J.S.A. 4A:1-1.3)), certif. denied, 142
N.J. 573 (1995). A provisional appointee may be terminated at any
time and has no right to appeal to the Commission. O'Malley v.
Dep't of Energy, 109 N.J. 309, 314 (1987).
Inverso contends the 2004 agreement granted him a permanent
appointment to the Senior Management Assistant title. Moreover,
he argues the Commission should be equitably estopped from
repudiating it because its employee, Arthur Finkel, allegedly was
involved in its drafting. Yet he has presented insufficient
evidence to bind the Commission to its terms or estop it from
refusing to honor them.
Inverso relies on the provision that acknowledged he "has the
necessary experience to hold the title of Hearing Officer II," but
"will remain in the classified service title of Senior Management
Assistant." He contends this provision granted him a permanent
appointment without having to take the examination. We are
unpersuaded. To the contrary, the plain language, strictly
construed, says nothing about the examination requirement.
Inverso presents no competent evidence of the agreement's
negotiating history or other extrinsic evidence to support his
interpretation. See Conway v. 287 Corporate Ctr. Assocs., 187
11 A-5138-13T3
N.J. 259, 268-69 (2006); Newark Publishers' Ass'n v. Newark
Typographical Union, 22 N.J. 419, 427 (1956). In the context of
Inverso's 2003 grievance, which ostensibly sought to undo his
demotion and restore him to the Hearing Officer II title, the
statement that he "will remain in the classified service title of
Senior Management Assistant" apparently meant nothing more than
he would stay put. Especially in light of the executive director's
pre-agreement statement that his demotion to the Senior Management
Assistant was made "pending open competitive examination," the
absence of any explicit statement to the contrary in the agreement
undermines Inverso's interpretation.
Notably, there is no evidence that when Inverso took the
examination he protested that it violated the terms of the
agreement. His apparent acquiescence also undermines his claim
that the agreement exempted him from the requirement. See Michaels
v. Brookchester, Inc., 26 N.J. 379, 388 (1958) ("Where ambiguity
exists, the subsequent conduct of the parties in the performance
of the agreement may serve to reveal their original
understanding."); see also Restatement (Second) of Contracts §
202(4), comment g (1981) ("The parties to an agreement know best
what they meant, and their action under it is often the strongest
evidence of their meaning.").
12 A-5138-13T3
In any event, the Commission was not a party to the settlement
agreement. We reject Inverso's contention that the Commission
should be bound because an employee named Arthur Finkel allegedly
initialed the stricken paragraph about having five years to satisfy
educational requirements, which we presume pertained to the
Hearing Officer II position. There is no competent evidence the
initials belonged to Arthur Finkel. Neither Inverso nor anyone
who claims personal knowledge of the agreement has said he
initialed it. Although Plousis referred to Finkel in his 2013
letter, he lacked personal knowledge of either the settlement
negotiation or Finkel's role therein, if any. Even if Finkel
initialed the striking through of a paragraph, he provided no
written expression of approval of any other provision of the
agreement, particularly the one stating Inverso would remain in
the Senior Management Assistant title. Furthermore, neither he
nor any other Commission representative signed the agreement, and
the Board's signatory did not purport to act on behalf of the
Commission.
Nor is there evidential support for equitably estopping the
Board from refusing to honor the alleged agreement to exempt
Inverso from the examination requirement. "The essential elements
of equitable estoppel are a knowing and intentional
misrepresentation by the party sought to be estopped under
13 A-5138-13T3
circumstances in which the misrepresentation would probably induce
reliance, and reliance by the party seeking estoppel to his or her
detriment." O'Malley, supra, 109 N.J. at 317; see also Hirsch v.
Amper Fin. Servs., LLC, 215 N.J. 174, 189 (2013). "In other words,
equitable estoppel . . . requires detrimental reliance." Ibid."Equitable estoppel is rarely invoked against a governmental
entity, particularly when estoppel would interfere with essential
government functions." O'Malley, supra, 109 N.J. at 316 (internal
quotation marks and citations omitted). Instead, it is applied
only in the most compelling circumstances, "to prevent manifest
injustice." McDade v. Siazon, 208 N.J. 463, 480 (2011) (internal
quotation marks and citation omitted); O'Malley, supra, 109 N.J.
at 316.
Inverso provides no certification or other competent evidence
to support his argument that he detrimentally relied on his
subjective understanding that the agreement exempted him from the
examination requirement. As noted, the fact that he sat for the
examination belies this alleged understanding.
Inverso also places undue weight on his acceptance of the
demotion to Senior Management Assistant. He suggests that his
willingness to do so was based on the Commission's promise to
provide a permanent position. But he did not meet the educational
requirements of the Hearing Officer II position. There were
14 A-5138-13T3
harsher remedies at the agency's disposal, including termination.
He thus received other consideration for entering the agreement,
including a provisional appointment to the Senior Management
Assistant position and a promise of seniority if he ultimately met
the qualifications for the Hearing Officer II position.
Also, there is no competent evidence in the record to support
a claim that the Commission knowingly or intentionally
misrepresented Inverso's rights. Even if Arthur Finkel endorsed
a paragraph regarding educational requirements, that falls well
short of proving he or the Commission assured Inverso that he
could retain the Senior Management Assistant title without passing
an examination.
We reject Inverso's argument that In re Johnson, 215 N.J. 366(2013) compels application of equitable estoppel here. In that
case, the Supreme Court held the Commission was barred from
reclassifying a twenty-five-year incumbent of an unclassified
prosecutor's agent position as a mere property clerk. The Court
relied both on the Commission's misapprehension of the agent's
duties, id. at 382-84, and the Commission's written assurances
that its announced classification review would affect only recent
hires. Id. at 386-87. By contrast, in this case, the Commission
neither mistook Inverso's duties nor made such explicit
representations.
15 A-5138-13T3
Rather, the more apt precedent is O'Malley, where the Court
declined to apply equitable estoppel to enable a provisional
appointee to retain his supervisory position when the Commission
failed to give a timely examination. O'Malley, supra, 109 N.J.
at 316-18. The Court noted the lack of proof of a
misrepresentation by the Commission. Id. at 317. In addition,
the Court stated it was "reluctant to permit employees to retain
by estoppel their provisional appointments." Id. at 318. So are
we in this case.
Finally, we reject Inverso's argument that he is entitled to
the Hearing Officer II position. It is too late for Inverso to
complain in 2013 that he was treated arbitrarily and unfairly ten
years earlier. See N.J.A.C. 4A:2-1.1(b) (stating appeal must be
filed within twenty days after actual or constructive notice).
Inverso entered into the 2004 settlement agreement resolving that
claim, and leaving him in a different position. In any event, the
disparate treatment of Inverso and the five hearing officers who
were not demoted was not arbitrary, as the five had considerably
more experience in the position at that time.
Inverso also misplaces reliance on L. 2005, c. 344, § 1,
which moved hearing officers to the classified service, amending
16 A-5138-13T3
N.J.S.A. 30:4-123.48.12 The new law affected only those persons
who had been employed as hearing officers "at least one year prior
to the effective date" of the amendment. L. 2005, c. 344, § 1;
N.J.S.A. 30:4-123.48(c). Ibid. The effective date was January
12, 2006. Id. at § 2. As Inverso did not meet this requirement,
the statute is of no moment.
To the extent not addressed, Inverso's remaining arguments
lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
12Inverso inappropriately raised this argument for the first time
in his reply brief. See Bacon v. N.J. State Dep't of Educ., 443
N.J. Super. 24, 38 (App. Div. 2015), certif. denied, 224 N.J. 281(2016). We nonetheless choose to address it.
17 A-5138-13T3