Opinion
DOCKET NO. A-4617-10T4
05-22-2012
IN THE MATTER OF ELIZABETH CRESPO, CITY OF PASSAIC.
Fredson & Statmore, L.L.C., attorneys for appellant Elizabeth Crespo (Ciro A. Spina, III, of counsel and on the brief). Eric M. Bernstein & Associates, L.L.C., attorneys for respondent City of Passaic, (Mr. Bernstein, of counsel and on the brief; Angela Vidal, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent Civil Service Commission, (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).
OT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Hayden.
On appeal the New Jersey Civil Service Commission, Docket No. 2011-66.
Fredson & Statmore, L.L.C., attorneys for appellant Elizabeth Crespo (Ciro A. Spina, III, of counsel and on the brief).
Eric M. Bernstein & Associates, L.L.C., attorneys for respondent City of Passaic, (Mr. Bernstein, of counsel and on the brief; Angela Vidal, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Civil Service Commission, (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Appellant Elizabeth Crespo appeals from the final determination of the Civil Service Commission (CSC), dated April 11, 2011, which upheld her layoff from the position of police officer with the City of Passaic (Passaic). For the reasons that follow, we affirm.
Passaic hired Crespo as a police officer on September 6, 2004. That month, while attending the Passaic County Police Academy, which she was required to successfully complete to keep her job, she sustained an injury. As a result, she was unable to complete the Academy, which resulted in her termination from the police department. Crespo appealed the termination, which was transferred to the Office of Administrative Law for a hearing.
Prior to the hearing, Crespo and Passaic negotiated a settlement of the termination that permitted Crespo to re-enter the Academy with the next class in September 2007 and be reinstated as a Passaic police recruit. The pertinent part of the settlement agreement at issue here states:
The period of time from Crespo's removal from her position by the City until the time of her re-enrollment in the Academy will be considered a leave of absence without pay for civil service record keeping purposes. For purposes of seniority, Crespo's original date of hire with the City will not change.
Thereafter, Crespo successfully completed the Academy and remained employed by the Passaic Police Department. On June 17, 2010, Crespo received notification from the CSC that, as a result of another police officer exercising seniority displacement rights, she would be laid off. After a few amended notices, the effective day of the layoff was set at August 19, 2010.
Crespo filed a determination of rights appeal with the CSC, arguing, among other things, that the layoff was a violation of her seniority rights. A CSC analyst determined that Crespo's records showed her date of hire as September 6, 2004 and a personal leave of absence from November 22, 2004 until September 24, 2007. In calculating her continuous service for purposes of seniority, Crespo's leave of absence totaling 1036 days was deducted, leaving her with 1087 days seniority. This amounted to fewer seniority days than the police officer who exercised displacement rights to her job. The analyst further determined that Crespo's leave days were correctly deducted from her seniority since the settlement agreement did not provide for a leave of absence covered by N.J.A.C. 4A:8-2.4(d)3, which prohibited a deduction for certain specified leaves of absence.
Crespo also filed a separate good faith appeal, which is not before us.
Crespo appealed to the CSC, which denied her appeal on April 11, 2011. The CSC determined that Crespo "has not established any error or evidence of misapplication of the pertinent uniform regulatory criteria in determining layoff rights." In its written decision, the CSC stated:
Regarding her claim that her seniority was improperly calculated, the settlement agreement . . . does not provide for a leave of absence covered under N.J.A.C. 4A:8-2.4(d)3. The settlement agreementThis appeal followed.
specifically provides for a leave of absence without pay but does not specify the type of leave to be recorded. As per N.J.A.C. 4A:8-2.4(d), only specific leaves are not deducted from seniority calculations. The appointing authority terminated appellant following her dismissal from the Police Academy. As a result of the settlement agreement, the appellant's official personnel record reflects only a leave of absence for personal reasons, and the appellant has not supported her burden of proof with any substantive medical or other evidence that her leave of absence should otherwise be credited under N.J.A.C. 4A:8-2.4(d).
Our role in reviewing an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). "We accord a strong presumption of reasonableness to such decisions and do not substitute our judgment for the wisdom of agency action if that action is statutorily authorized and not arbitrary or unreasonable." A.M.S. ex rel A.D.S. v. Bd. of Educ. of City of Margate, 409 N.J. Super. 149, 159 (App. Div. 2009). As long as an agency decision is contemplated under its enabling legislation, the action must be accorded a presumption of validity and regularity. Reilly v. AAA Mid-Atlantic Ins. Co. of N.J., 194 N.J. 474, 485 (2006). We must give "substantial deference" to an agency's interpretation of a statute or regulation it is charged with enforcing as well as its expertise in a particular field. St. Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 15 (2005).
We have carefully reviewed Crespo's claims in light of the record and the applicable law. We are convinced that the CSC's decision is supported by sufficient credible evidence in the record as a whole. We affirm the CSC's decision for reasons expressed in its April 11, 2011 final decision. R. 2:11-3(e)(1)(D) and (E). We add the following comments.
Under the Civil Service regulations pertaining to seniority and layoff rights, seniority for police and fire titles in State and local civil service is "the amount of continuous permanent service in an employee's current permanent title and other titles that have . . . . lateral or demotional rights to the current permanent title." N.J.A.C. 4A:8-2.4(b). In calculating seniority, all paid leaves and leaves without pay for "military, educational, gubernatorial appointment, unclassified appointment, personal sick, disability, family, furlough extension and voluntary alternative to layoff" may not be deducted. N.J.A.C. 4A:8-2.4(d). However, all other leaves of absence without pay "shall be deducted in calculating seniority." N.J.A.C. 4A:8-2.4(e). An affected employee may file a determination of rights appeal based on a claim that the employee's layoff rights or seniority was incorrectly calculated or applied. N.J.A.C. 4A:8-2.6(a). In this appeal, the employee has the burden of proof. N.J.A.C. 4A:8-2.6(c).
Crespo maintains that her seniority must be calculated without deducting her leave days or the part of the agreement setting her seniority date at September 6, 2004 would be meaningless. This argument ignores the uniform CSC seniority criteria, which provide that, whatever the seniority date, continuous service for seniority purposes is determined after deducting non-exempt unpaid leaves of absence. N.J.A.C. 4A:8-2.4(e).
Crespo also contends that the leave should be considered a sick or disability leave as she stopped working because she was injured at the Academy. We disagree. The CSC rejected this argument since, as the settlement agreement did not specify that the leave was exempt from deduction, the leave remained subject to the regulatory deduction for unpaid leave. Ibid. Moreover, Crespo's bare assertion that the leave should be considered a medical or disability leave was not factually supported by the record. Crespo's claim that she was injured at the Academy in September 2007 does not provide proof that she was unable to work for the next three years.
In sum, the CSC's decision has not been shown to be arbitrary, capricious or contrary to the applicable law. Consequently, we discern no basis to set it aside.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION