IN THE MATTER OF ANNA DELANEY, DEPARTMENT OF LAW AND PUBLIC SAFETY (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NOT FOR PUBLICATION WITHOUT THE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-1649-16T2

IN THE MATTER OF
ANNA DELANEY, DEPARTMENT
OF LAW AND PUBLIC SAFETY.
___________________________

Argued April 30, 2018 - Decided June 18, 2018

Before Judges Accurso and O'Connor.

On appeal from the New Jersey Civil Service
Commission, Docket Nos. 2015-1255 and 2016-
1528.

Walter R. Bliss, Jr., argued the cause for
appellant Anna Delaney.

Pamela N. Ullman, Deputy Attorney General,
argued the cause for respondent New Jersey
Civil Service Commission (Gurbir S. Grewal,
Attorney General, attorney; Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Pamela N. Ullman, on the brief).

PER CURIAM

Anna Delaney appeals from an August 3, 2015 final agency

decision of the Civil Service Commission and a November 29, 2016

decision denying her request for reconsideration. As Delaney

has not demonstrated either decision was arbitrary, capricious

or unreasonable, we affirm.
 Following the 2012 open-competitive examination for the

title of Forensic Scientist I, LPS, Delaney was tied with one

other person at rank 19 on a list of 36 eligibles. Although the

posting announcing the examination stated only thirteen

positions were available, Delaney's name was included on three

different certifications issued by the Commission. See N.J.A.C.

4A:4-4.2(a). Each time, however, the Department of Law and

Public Safety, the appointing authority, selected one of the

other names on the certification pursuant to the "Rule of

Three." See N.J.S.A. 11A:4-8. Those individuals received

regular appointments effective December 15, 2012.

Delaney filed a grievance claiming she was more qualified

than two other individuals hired off the list, one ranked 17 and

the other 22, that she was advised that she could not resign

from her current title of Senior Laboratory Technician and be

re-hired as a Forensic Scientist I (a "resignation/pickup"),

although this was done for another individual on the list, and

that the Director of the Office of Forensic Science and the

Chief Forensic Scientist told her she had been approved for

promotion to Forensic Scientist I but she had "received nothing

in writing." Delaney requested she be promoted to Forensic

Scientist I retroactive to the date "that the other individuals

on the list were hired" with an appropriate salary adjustment.

2 A-1649-16T2
 Delaney and the Department settled her grievance with an

agreement providing she would be provisionally appointed,

pending promotional procedures, to Forensic Scientist I

effective March 23, 2013, and would receive a regular

appointment to the title effective April 3, 2014. The parties

further agreed that Delaney's complaints about the Department's

failure to appoint her from the eligibility list with a

resignation/pickup and her request for a retroactive appointment

would remain open pending a determination by the Commission.

Delaney received provisional and regular appointments

pursuant to the agreement and appealed the grievance

determination through her union to the Commission. Delaney's

union representative argued the Department's denial of a

resignation/pickup resulted in Delaney's promotion being delayed

three months and because "her permanent date is not the same as

the other newly hired employees, this creates a severe

disadvantage in title seniority and eligibility for the next

promotional Forensic Scientist 2 position." The union also

asserted Delaney "was placed in the first step of Range 25

because the appointment was considered a promotion," while other

new hires were placed in higher steps. The union argued that

had Delaney "been granted the resignation/pickup, she would have

the same seniority date as the other 19 individuals and would

3 A-1649-16T2
have been placed in a higher step of the range." The union

stated it was "appealing to the Commission to relax any rule

that would allow Ms. Delaney's appointment to the Forensic

Scientist I title be retroactive with pay to the same permanent

date as the other employees hired off the open competitive list

on December 15, 2012 and be placed in step 3 of Range 25."

The Commission denied Delaney's appeal. First, the

Commission explained that even had Delaney been appointed from

the eligible list, N.J.A.C. 4A:3-4.9 and N.J.A.C. 4A:4-7.9(a)

establish that she would be treated as if she were being

promoted, resulting in a salary increase equal to at least one

increment in the salary range of her old title plus the amount

necessary to place her on the next higher step in the new range;

that is, step one of salary range 25, exactly as calculated.

Thus, the Commission explained, Delaney would have received the

exact same salary even had she been appointed off the open

competitive list as a resignation/pickup.

Second, the Commission found no basis for a retroactive

appointment under N.J.A.C. 4A:4-1.10(c). The Commission

explained that retroactive appointment authorized by regulation

is reserved for two particular situations: where the employee

was actually serving in and performing the duties of the title

but due to some error or other good cause, her attainment of

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permanent status was delayed or hindered; or where an employee,

"whose appointment would have otherwise been mandated, was

improperly removed from or bypassed on an eligible list, thereby

preventing" her appointment. The Commission found nothing to

suggest Delaney was performing the duties of a Forensic

Scientist I prior to her provisional appointment.

The Commission also found no evidence to support Delaney's

claim she was improperly bypassed on the eligible list.

Although acknowledging Delaney's assertion that she was "better

qualified" than other individuals selected, the Commission noted

that N.J.S.A. 11A:4-8, N.J.S.A. 11A:5-7 and N.J.A.C. 4A:4-

4.8(a)(3)(ii) expressly permit an appointing authority to select

from among the top three interested eligibles on an open

competitive or promotional list, provided no veteran heads the

list. The Commission further noted that at the time of these

events, N.J.A.C. 4A:4-4.8 no longer required an appointing

authority to even explain its reasons for choosing a lower

ranked eligible from the certification.1 See 44 N.J.R. 137(a)

(Jan. 17, 2012); 44 N.J.R. 1333(b) (May 7, 2012). Finding

Delaney had not carried her burden to show she was improperly

bypassed on the eligible list and was not entitled to a

1
The Commission amended N.J.A.C. 4A:4-4.8 to delete the
requirement of a statement of reasons, effective May 7, 2012.

5 A-1649-16T2
retroactive appointment or higher salary, the Commission denied

Delaney's appeal. The Commission subsequently denied Delaney's

request for reconsideration, finding she "merely reiterate[d]

her [prior] arguments."

Delaney appeals, arguing she was improperly bypassed on the

open competitive list, the Commission's denial of a retroactive

date for her appointment was arbitrary and capricious and she is

entitled to a "plenary hearing on genuine issues of material

fact raised by appellant's appeals." Our review of the record

convinces us that none of these arguments is of sufficient merit

to warrant extended discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Our role in reviewing the decision of an administrative

agency is, of course, limited. In re Carter, 191 N.J. 474, 482

(2007). We accord a strong presumption of reasonableness to an

agency's exercise of its statutorily delegated responsibility,

City of Newark v. Nat. Res. Council, Dep't of Envtl. Prot., 82

N.J. 530, 539, cert. denied, 449 U.S. 983 (1980), and "give

great deference to an agency's interpretation of statutes within

its scope of authority and its adoption of rules implementing

the laws for which it is responsible," Hargrove v. Sleepy's,

LLC, 220 N.J. 289, 302 (2015) (internal quotation marks

omitted). We will not upset the determination of an

6 A-1649-16T2
administrative agency absent a showing it was arbitrary,

capricious, or unreasonable; that it lacked fair support in the

evidence; or it violated legislative policies. In re

Stallworth, 208 N.J. 182, 194 (2011); Campbell v. Dep't of Civil

Serv., 39 N.J. 556, 562 (1963).

Applying those standards here, we find no basis to reverse

the Commission's decision. Delaney does not contest the

Commission's analysis of the regulations that establish her

salary would have been exactly the same whether hired off a

promotional list pursuant to a grievance settlement as she was

or off the open competitive list on which she ranked 19 of 36

eligibles. The delay in her appointment did not adversely

affect her eligibility to sit for the promotional examination

for Forensic Scientist 2 with the employees hired off the open

competitive list. None of those appointed had the one year in

title required when the announcement for Forensic Scientist 2

was made in September 2013 and there was no further announcement

for the title during any period in which she would have been at

a disadvantage vis-á-vis those employees appointed three months

before she was.

As for her claim that the record contains no "substantive

explanation by the Department or the Commission as to why the

Department bypassed [Delaney] on the open competitive list and

7 A-1649-16T2
then agreed to hire her in the title by means of a 'promotion'"

via a grievance settlement, none was required. Delaney

acknowledges the law is well settled that "[n]o right accrues to

a candidate whose name is placed on an eligible list," In re

Foglio, 207 N.J. 38, 44 (2011), and that "the 'rule of three'

accommodates the exercise of a broad discretion in hiring,"

Terry v. Mercer Cty. Bd. of Chosen Freeholders, 86 N.J. 141, 150

(1981). We agree with the Commission that Delaney failed to

carry her burden to establish the Department unlawfully failed

to appoint her from the eligibility list entitling her to a

retroactive appointment. See N.J.A.C. 4A:2-1.4(c). The issues

being legal ones, and Delaney having never requested an

evidentiary hearing, we find no error in the Commission's

decision to hear the matter on the written record. See N.J.A.C.

4A:2-1.1(d); In re Wiggins, 242 N.J. Super. 342, 345 (App. Div.

1990).

Affirmed.

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