Opinion
DOCKET NO. A-0429-12T4
06-11-2014
JOSE BERRIOS, Appellant, v. DEPARTMENT OF COMMUNITY AFFAIRS, DIVISION OF HOUSING AND COMMUNITY AFFAIRS, Respondent.
Begelman, Orlow & Melletz, attorneys for appellant (Paul R. Melletz, of counsel; Daniel S. Orlow, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Patricia E. Stern, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Accurso.
On appeal from the Department of Community Affairs.
Begelman, Orlow & Melletz, attorneys for appellant (Paul R. Melletz, of counsel; Daniel S. Orlow, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Patricia E. Stern, Deputy Attorney General, on the brief). PER CURIAM
This matter returns to us following our transfer to the Department of Community Affairs (the Department) pursuant to Rule 1:13-4(a) for a final determination of the claims brought by plaintiff Jose Berrios administratively and in the Law Division. Berrios now appeals from the Department's final determination denying his request for permanent civil service status. Because that determination is neither arbitrary nor capricious and accords with applicable law, we affirm.
We set forth the facts and procedural background in our prior opinion.
The Department hired Berrios as a temporary service employee to inspect housing under the Department's jurisdiction. Before commencing his employment on February 5, 2007, Berrios was given and signed a form notice advising that temporary employees have no civil service protection, are not covered by collective bargaining agreements and may be terminated at will and without prior notice. During his employment, two competitive examinations for permanent positions were announced, but Berrios did not apply. Those examinations were held on December 6, 2007, and January 19, 2009.
On October 16, 2009, an attorney representing Berrios and another employee wrote to the Department's personnel office. In that letter, the attorney asserted that his clients had been employed as temporary employees for at least three years and should have been made permanent employees after one year of employment. By letter dated November 25, 2009, the Department's Director of Human Services responded and advised that employees serving in such temporary positions do not obtain permanent status based on service.
On April 1, 2010, Berrios' attorney filed a formal complaint with the Commissioner seeking permanent appointment and payment of mileage charges Berrios was allegedly owed for use of his personal vehicle in the performance of his duties over the past six months. By letter dated April 23, 2010, the Director denied the request for permanent appointment and advised that his "mileage reimbursement requests [were] currently under review by the [Department]."
[Berrios v. Dep't of Cmty. Affairs, No.A-5905-10 (App. Div. Apr. 16, 2012) (slip op. at 1-3).]
Following our transfer, the parties resolved Berrios's mileage claim. The Department also advised Berrios that its letter of April 23, 2010 was the Department's final decision on his claim to appointment to a permanent position. In that letter, the Department explained that Berrios had been hired into a temporary employment service position as an hourly employee not under a union contract and without the rights and protections afforded career service employees by statute and regulation. The Department further explained that the regulation upon which Berrios relied, N.J.A.C. 4A:4-1.7, governed temporary appointments to positions in the career service and was not applicable to temporary employment services positions such as his, which "are not covered by Title 11A of the New Jersey Statutes or Title 4A of the New Jersey Administrative Code."
Defendant appeals claiming that "due to the longevity of [his] employment as a provisional employee," he should be provided permanent retroactive employment, or at least be provided the opportunity to sit for a civil service examination. We disagree.
Berrios persists in mischaracterizing the nature of his employment. The record establishes beyond doubt that Berrios was employed not as a "provisional employee" but as a temporary service employee. The distinction is significant. Provisional appointments are made only in the competitive division of the career service pending the appointment of a person from an eligible list. N.J.S.A. 11A:4-13b; Melani v. Cnty. of Passaic, 345 N.J. Super. 579, 586 (App. Div. 2001); N.J.A.C. 4A:1-1.3 (definition of provisional appointment). Temporary service employees, in contrast, are not part of the career service. As Berrios acknowledged upon accepting the position, "only the career service provides the permanent appointment rights and protections under Title 11A of the New Jersey statutes and Title 4A of the New Jersey Administrative Code." As those employed as temporary service employees are part of the State's unclassified service, they do not receive the benefit of the statutory and administrative protections which members of the career service enjoy. See N.J.S.A. 11A:3-4 (unclassified service employees not subject to the statute unless otherwise specified); see also N.J.A.C. 4A:1-1.3 (definition of unclassified service).
As the position offered to and accepted by Berrios was not one of provisional employment in the career civil service, his claims, based as they are on the rights accorded provisional employees, are utterly devoid of merit. Accordingly, we affirm the final decision of the Department denying Berrios permanent civil service status.
We are aware of nothing that would prohibit Berrios from sitting for a regularly scheduled civil service examination
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION