dissenting.
In this case, the Appellate Division entered a judgment invalidating the pilot programs that were adopted by the Commissioner of the Department of Personnel. The Appellate Division held that the pilot programs exceed the scope of the powers that may lawfully be delegated under N.J.S.A. 11A:2-11i. 299 N.J.Super. 166, 167, 690 A.2d 695 (1997). I would affirm that judgment substantially for the reasons set forth in the opinion of Judge Landau.
The Court finds that “the purposes underlying” the Civil Service Act (Act), N.J.S.A. 11A:1-1 to 12-6, “provide the Commissioner with sufficient standards to guide her exercise of' authority under Section lli.” Ante at 126, 711 A.2d 892. The Court’s conclusion, however, disregards the fact that N.J.S.A 11A:2-Ili expressly and precisely authorizes the Commissioner to establish pilot programs “outside of the provisions” of the Act. The “standards” believed by the majority to be “sufficient” to guide the Commissioner in the adoption of pilot programs are those derived from the “provisions” of the Act; however, the Commissioner’s authority to experiment may be exercised outside of those statutory provisions. The Court does not explain how it can extrapolate from the statute standards that have already been effectively removed. Further, N.J.AC. 4A:l-4.3 permits the Commissioner to establish pilot programs “outside of’ the duly adopted rules of the Department. Thus, as Judge Landau points out, the Commissioner has “arrogated to herself the power to ignore not only Title *13311A but the Department’s own rules.” 299 N.J.Super. at 171, 690 A.2d 695.
In addition, the two eases the majority relies upon to support its position, Avant v. Clifford, 67 N.J. 496, 341 A.2d 629 (1975) and Ward v. Scott, 11 N.J. 117, 93 A.2d 385 (1952), are distinguishable from this case.
In Avant, supra, inmates contended that the Legislature had impermissibly delegated to the Commissioner of the Department of Institutions and Corrections the power to define the nature of imprisonment. 67 N.J. at 547, 341 A.2d 629. The challenged statute provided in pertinent part that the Commissioner “shall have the power to ... determine all matters of policy and shall have the power to regulate the administration of the institutions ... within his jurisdiction.” Id. at 504 n. 2, 341 A.2d 629 (quoting N.J.S.A 30:1-12). In upholding the constitutionality of the statute, the Court held that there was a “statutory pattern guiding imprisonment and corrections, within the well-charted confines of which” the Commissioner must fulfill his delegated mission. Id. at 554, 341 A.2d 629. This statutory framework included provisions concerning confinement as punishment (N.J.S.A 2A:85-6) (repealed), discouragement of recidivism (2A:85-8) (repealed), rehabilitation by way of incentive (30:4-140), institutional work (30:4-92), work release (30:4-91.3), thrift (30:4-91.4), education (30:4AA-2) (repealed), parole (30:4-106) (repealed), mental health care (30:4-82) (repealed), hospitalization (30:4-7), transfer (30:4-84) (repealed), separation by age (30:4-147), compassionate leave (30:4-8.1), correspondence (30:4-8.3), consent for medical or psychiatric treatment (30:4-7.2), and the maintenance of the commissary (30:4-15). Id. at 548, 341 A.2d 629. Further, the Legislature had set up a framework of procedural safeguards. See id. at 512-13, 341 A.2d 629. Every State correctional institution was required to promulgate and publish rules and regulations governing the rights, privileges, duties and obligations of the inmate population. Ibid. The publications were required to set forth the authorized sanctions for classes of violations and detail the procedures for imposing punishment and appealing from the infliction thereof. Id. at 513, 341 A.2d 629. It was only “[withjin the context of that elaborate legislative scheme” that the Commissioner was allowed *134to exercise the authority given him. Id. at 549, 341 A.2d 629. It was “unthinkable that the Department or Commissioner would or could depart from th[e]se legislative strictures.” Id. at 554, 341 A.2d 629.
In contradistinction, the challenged programs in this ease purposely depart from specific statutory requirements, ie. N.J.S.A. llA:4r-8 (establishing Rule of Three); N.J.S.A 11A:4-15 (establishing length of probationary period), and are in no way tied tó any other legislative strictures. Further, far from granting the Commissioner power that is “hemmed in” by surrounding provisions in the statute, see Avant, supra, 67 N.J. at 553, 341 A.2d 629 (internal citation omitted), the statutory basis for the delegated authority expressly allows the Commissioner to act “outside of the provisions” of the Act. See N.J.S.A. 11A:2-Ili. Finally, there are no procedural safeguards because N.J.AC. 4A:l-4.3 allows the Commissioner to establish pilot programs without having to adhere to the rule-making process set forth in N.J.S.A 52:14B-4 to - 4.1.
The Court points out that the appointing authority “remains bound by N.J AC. 4A:4-4.8(b)(4), which requires it to provide a statement to the Commissioner of reasons” why a higher ranked candidate was not chosen. Ante at 129, 711 A.2d 894. The majority surmises that these reasons might include the lower ranked candidate’s greater “experience, education or training, or superior communication, managerial, or other skills that are not readily reflected in the exam scores.” Ibid. However, reasons of that character are not required by the statute and whether such reasons would govern or influence the decisions of an appointing authority is wholly speculative. Appointing authorities should, but need not, take such grounds into consideration. Decisional grounds that are not specified as criteria in the statute, or in any regulation, or in the pilot program itself, and cannot otherwise be clearly implied as a required limitation on the exercise of discretionary authority, may not be fashioned out of whole cloth to salvage a fatally deficient delegation of statutory authority. The majority’s *135conclusion that such reasons will control the implementation of experimental programs is wishful thinking.
This case can thus be contrasted with Ward, supra, wherein a property owner challenged the validity of R.S. 40:55 — 39(d), a statutory provision that permitted a board of adjustment to recommend a variance “in particular cases and for special reasons.” 11 N.J. at 121, 93 A.2d 385. In upholding the statute, the Court found that there were “ample safeguards” to prevent “unwarranted or arbitrary action.” Id. at 127, 93 A.2d 385. Chief among those safeguards was the requirement that the board make “a specific finding of special reasons within the contemplation of the” zoning law. Id. at 126, 93 A.2d 385. Here, there is no such limitation; the Commissioner may act for reasons that are not delineated and are “outside of’ the Act.
I would, accordingly, affirm the judgment of the Appellate Division.
STEIN, J., joins this opinion.
For reversal — Chief Justice PORITZ and Justices O’HERN, GARIBALDI, COLEMAN and POLLOCK — 5.
For affirmance — Justices HANDLER and STEIN — 2.