In the Matter of the Reallocation of the Probation Officer And

NOT FOR PUBLICATION WITHOUT THE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