IN RE: MICHAEL DIPASCALE

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Superior Court of New Jersey, Appellate Division.

IN RE: MICHAEL DIPASCALE, CITY OF CAMDEN.

DOCKET NO. A–3587–11T1

Decided: April 1, 2014

Before Judges Simonelli, Fasciale and Haas. F. Michael Daily, Jr., LLC, attorney for appellant Michael DiPascale (Amy B. Sunnergren, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Lewis A. Scheindlin, Assistant Attorney General, of counsel;  Pamela N. Ullman, Deputy Attorney General, on the brief). Marc A. Riondino, City Attorney, attorney for respondent City of Camden (Jason J. Asuncion, Assistant City Attorney, on the brief).

Appellant Michael DiPascale appeals from the February 9, 2012 final administrative decision of the Civil Service Commission that determined his layoff rights.   We affirm.

Appellant was employed by the City of Camden (the City) as a Deputy Fire Chief.   On November 8, 2010, the City submitted a layoff plan to the Division of State and Local Operations (SLO) of the Commission to lay off employees in various departments, including the Fire Department.   After the plan was approved, the SLO sent a letter to appellant notifying him that he was subject to the layoff and he had no lateral layoff rights that would enable him to displace (or “bump”) another Deputy Fire Chief within the Fire Department.   However, appellant did have a demotional layoff right to the position of Battalion Fire Chief, which he exercised.

Appellant appealed the SLO's layoff rights determination to the Commission and argued that he should not have been demoted to Battalion Fire Chief because he allegedly had more seniority than two other employees, Daniel Rossi and Edward Glassman, in the Deputy Fire Chief title.   Glassman's permanent service began on March 10, 1987, and Rossi achieved permanent status on August 25, 1986.   Appellant was not permanently appointed as a fire fighter until December 16, 1987.   Moreover, appellant, Rossi, and Glassman were all permanently appointed to the Deputy Fire Chief position on the same day, October 18, 2010.

However, appellant alleged that he had the most seniority because he was provisionally appointed to the Deputy Fire Chief position on July 2, 2010, two days before Rossi, and that Glassman was never provisionally appointed to this position before receiving his permanent appointment.   In addition, appellant argued that he had more seniority than Rossi because Rossi had a “break in service” caused by a five-day suspension imposed upon him in 1992.

On February 9, 2012, the Commission rejected appellant's contentions in a thorough written decision.   The Commission relied upon N.J.A.C. 4A:8–2.4(b) 1 , which provides:

For police and fire titles in State and local service, seniority for purposes of this chapter is the amount of continuous permanent service in an employee's current permanent title and other titles that have (or would have had) lateral or demotional rights to the current permanent title․  Seniority shall be based on total calendar years, months and days in title regardless of work week, work year or part-time status.

[ (Emphasis added).]

Appellant, Rossi, and Glassman were all permanently appointed to the Deputy Fire Chief position on October 18, 2010.   Because the regulation specifically provides that seniority is determined based upon the date of an employee's permanent appointment, rather than on the date of provisional appointment, the Commission found that appellant did not have seniority over Rossi or Glassman based upon his earlier provisional appointment to the position.

Because appellant, Rossi, and Glassman were tied in terms of the date of their permanent appointments to the Deputy Fire Chief title, the Commission moved on to consider the tie-breakers established in the regulation.  N.J.A.C. 4A:8–2.4(b)3 states:

If two or more employees in a police or fire title have equal seniority, the tie shall be broken in the order of priority set forth in [N.J.A.C. 4A:8–2.4(h)1 to (h)11], except that the fifth tie-breaking factor shall give priority to the employee with greater continuous permanent service, regardless of title.

Appellant, Rossi, and Glassman were still tied after considering the first four tie-breakers set forth in N.J.A.C. 4A:8–2.4(h)1 to (h)4.   The fifth tie-breaker states that “[i]f two or more employees have equal seniority ․ [t]he employee with greater non-continuous permanent service, regardless of title, shall have priority[.]”  N.J.A.C. 4A:8–2.4(h)5. Because appellant had not been appointed as a fire fighter until December 16, 1987, well after Rossi and Glassman, the Commission determined that appellant had less seniority than either of the other employees.

The Commission rejected appellant's argument that Rossi's five-day suspension constituted a “break in service.”  N.J.A.C. 4A:8–2.4(e) states that “[s]uspensions, other leaves of absence without pay and any period an employee is laid off shall be deducted in calculating seniority.”   Thus, the five days Rossi was suspended were deducted from his total amount of time in permanent service.   Because Rossi was permanently appointed months before appellant, the Commission found that the loss of those five days did not affect his overall seniority over appellant.   This appeal followed.

On appeal, appellant again argues that he should have been granted seniority over both Rossi and Glassman because of his earlier provisional appointment to the Deputy Fire Chief position, and over Rossi because of the five-day suspension Rossi received in 1992.   Established precedents guide our task on appeal.   Appellate review of an administrative agency decision is limited.   In re Herrmann, 192 N.J. 19, 27 (2007).   A “strong presumption of reasonableness attaches” to the Commission's decision.  In re Carroll, 339 N.J.Super. 429, 437 (App.Div.), certif. denied, 170 N.J. 85 (2001).   Appellants have the burden to demonstrate grounds for reversal.  McGowan v. N.J. State Parole Bd., 347 N.J.Super. 544, 563 (App.Div.2002);  see also Bowden v. Bayside State Prison, 268 N.J.Super. 301, 304 (App.Div.1993) (holding that “[t]he burden of showing the agency's action was arbitrary, unreasonable or capricious rests upon the appellant”), certif. denied, 135 N.J. 469 (1994).

Appellate courts generally defer to final agency actions, only “reversing those actions if they are ‘arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.’ ”   N.J. Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384–85 (2008) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579–80 (1980)).   Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inquiries:  (l) whether the agency's decision conforms with relevant law;  (2) whether the decision is supported by substantial credible evidence in the record;  and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion.  In re Stallworth, 208 N.J. 182, 194 (2011).

When an agency decision satisfies such criteria, we accord substantial deference to the agency's fact-finding and legal conclusions, acknowledging “the agency's ‘expertise and superior knowledge of a particular field.’ ”   Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).   We will not substitute our judgment for the agency's even though we might have reached a different conclusion.  Stallworth, supra, 208 N.J. at 194;  see also In re Taylor, 158 N.J. 644, 656–57 (1999) (discussing the narrow appellate standard of review for administrative matters).

Applying these principles here, we discern no basis for disturbing the Commission's decision concerning appellant's layoff rights.   Appellant was tied with Rossi and Glassman in terms of continuous permanent service in the Deputy Fire Chief position and Rossi's prior suspension did not constitute a “break in service” under N.J.A.C. 4A:8–2.4(e).   Because Rossi and Glassman both had “greater non-continuous permanent service” than appellant, the Commission properly determined that appellant had less seniority than them.  N.J.A.C. 4A:8–2.4(h)5. We have considered appellant's contentions to the contrary in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(1)(D) and (E).   We therefore affirm substantially for the reasons expressed by the Commission in its well-reasoned written opinion.

Affirmed.

FOOTNOTES

1.  FN1. The Civil Service Commission recently amended N.J.A.C. 4A:8–2.4 to make technical changes not relevant to the issues on appeal.   46 N.J.R. 497(a) (March 14, 2014).

PER CURIAM

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