SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4912-13T3 A-3041-14T3 A-0230-15T3 A-0232-15T3 A-0274-15T3 A-0275-15T3

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,

Appellant, APPROVED FOR PUBLICATION

v. December 1, 2016

NEW JERSEY CIVIL SERVICE APPELLATE DIVISION COMMISSION,

Respondent. ____________________________

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,

Appellant,

v.

NEW JERSEY CIVIL SERVICE COMMISSION,

Respondent. ______________________________

IN THE MATTER OF JOB BANDING FOR SOFTWARE DEVELOPMENT SPECIALIST 1 AND 2, AND NETWORK ADMINISTRATOR 1 AND 2, OFFICE OF INFORMATION TECHNOLOGY. _____________________________

IN THE MATTER OF CHANGES IN THE STATE CLASSIFICATION PLAN AND JOB BANDING REQUEST, DEPARTMENT OF TRANSPORTATION. ______________________________

IN THE MATTER OF CHANGES IN THE STATE CLASSIFICATION PLAN AND JOB BANDING REQUEST, DEPARTMENT OF TRANSPORTATION. ______________________________

IN THE MATTER OF JOB BANDING FOR SOFTWARE DEVELOPMENT SPECIALIST 1 AND 2, AND NETWORK ADMINISTRATOR 1 AND 2, OFFICE OF INFORMATION TECHNOLOGY. ______________________________

Argued November 9, 2016 – Decided December 1, 2016

Before Judges Yannotti, Fasciale and Gilson.

On appeal from the New Jersey Civil Service Commission, Docket Nos. 2016-561, 2016-778, and 2016-779.

Annmarie Pinarski argued the cause for appellant Communication Workers of America, AFL-CIO in A-4912-13, A-3041-14, and A-0230- 15 (Weissman & Mintz, L.L.C., attorneys; Steven P. Weissman and Ms. Pinarski, on the briefs).

Arnold Shep Cohen argued the cause for appellant International Federation of Professional & Technical Engineers, Local 195 in A-0232-15 (Oxfeld Cohen, P.C., attorneys; Mr. Cohen, of counsel and on the brief).

Leon J. Sokol argued the cause for appellants Stephen M. Sweeney, President of the New Jersey State Senate, and Vincent Prieto, Speaker of the New Jersey General Assembly, the Senate and General Assembly in

2 A-4912-13T3 A-0274-15 and A-0275-15 (Cullen and Dykman, L.L.P., attorneys; Mr. Sokol and Herbert B. Bennett, of counsel and on the briefs).

Peter Slocum, Deputy Attorney General, argued the cause for respondent New Jersey Civil Service Commission (Christopher S. Porrino, Attorney General, attorney; Mr. Porrino, Mr. Slocum and Wan Cha, on the briefs).

The opinion of the court was delivered by

FASCIALE, J.A.D.

In these six appeals, which we have consolidated for the

purpose of rendering this opinion, the State Senate, Stephen M.

Sweeney, President of the New Jersey Senate, the General

Assembly, and Vincent Prieto, Speaker of the New Jersey Assembly

(collectively the Legislature), Communications Workers of

America, AFL-CIO (CWA), and the International Federation of

Professional & Technical Engineers, Local 195 (IFPTE), challenge

several final administrative agency decisions (the decisions)

rendered by the Civil Service Commission (CSC) pertaining to a

Job Banding Rule (the Rule), N.J.A.C. 4A:3-3.2A. The CSC

adopted and implemented the Rule after the Legislature invoked

its veto power, pursuant to N.J. Const. art. V, § 4, ¶ 6 (the

Legislative Review Clause), finding in numerous concurrent

resolutions that the Rule conflicted with the Civil Service Act

(CSA), N.J.S.A. 11A:1-1 to 12-6, which incorporated the text of

3 A-4912-13T3 N.J. Const. art. VII, § 1, ¶ 2. For the reasons that follow, we

conclude that the Legislature validly exercised its authority

under the Legislative Review Clause and correctly invalidated

the Rule. We therefore reverse the decisions and vacate the

implementation of that Rule, including any subsequent

amendments.

I.

We begin with a brief history of the Legislative Review

Clause and related governing legal principles. Doing so will

inform our holding on our standard of review and our conclusion

that the Legislature enjoys a limited constitutional power to

determine whether any administrative rule or regulation is

"consistent with the intent of the Legislature as expressed in

the language of the statute which the rule or regulation is

intended to implement." N.J. Const. art. V, § 4, ¶ 6.

In 1981, the Legislature overrode Governor Brendan T.

Byrne's veto and passed the Legislative Oversight Act, L. 1981,

c. 27, N.J.S.A. 52:14B-4.1 to -4.9. In general, the Legislative

Oversight Act permitted legislative veto of administrative

regulations by concurrent resolution of both houses. In General

Assembly v. Byrne,

(1982), the Court applied

the then existing New Jersey Constitution, invalidated the

Legislative Oversight Act, and stated:

4 A-4912-13T3 We hold that the legislative veto provision in the Legislative Oversight Act, L. 1981, c. 27, violates the separation of powers principle that "[t]he powers of the government shall be divided among three distinct branches," N.J. Const. (1947), [art. III, ¶]1, by excessively interfering with the functions of the executive branch. The Legislature's power to revoke at will portions of coherent regulatory schemes violates the separation of powers by impeding the Executive in its constitutional mandate to faithfully execute the law. The legislative veto further offends the separation of powers by allowing the Legislature to effectively amend or repeal existing laws without participation by the Governor. This process also contravenes the Presentment Clause requirement that changes in legislative policy be effected by a majority vote of both houses of the Legislature and approval by the Governor or, after executive veto, by a two-thirds vote of both houses. N.J. Const. (1947), [art. V, § 1, ¶]14.

[(First alteration in original) (emphasis added).]

The Court found that

the broad and absolute legislative veto provision in L. 1981, c. 27, is both an excessive intrusion into executive enforcement of the law and an unconstitutional mechanism for legislative policy making beyond the Governor's control. The Legislative Oversight Act thereby gives the Legislature excessive power both in making the laws and in enforcing them. This violates the separation of powers and the Presentment Clause.

[(Id. at 379).]

5 A-4912-13T3 The separation of powers doctrine tempers the use of

governmental power. In New Jersey, the Framers created a

government with three distinct branches, each a separate source

of power that could check the potential abuses of the other

branches. N.J. Const. art. III, ¶ 1 reads:

The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.

The Framers established a government of separated and balanced

powers primarily because they feared "that in a representative

democracy the Legislature would be capable of using its plenary

lawmaking power to swallow up the other departments of the

Government." Gen. Assembly, supra,

(quoting

Consumer Energy Council of Am. v. Fed. Energy Reg. Comm'n,

, 464 (D.C. Cir. 1982)). It has been the well-

recognized constitutional role of the judiciary to prevent one

branch of government from exercising illegitimate power over the

other. Marbury v. Madison,

,

,

(1803).

6 A-4912-13T3 The Presentment Clause, N.J. Const. art. V, § 1, ¶ 14, like

that in the Federal Constitution, U.S. Const. art. I, § 7, cl.

2, states in relevant part:

(a) When a bill has finally passed both houses, the house in which final action was taken to complete its passage shall cause it to be presented to the Governor before the close of the calendar day next following the date of the session at which such final action was taken.

(b) A passed bill presented to the Governor shall become law:

(1) if the Governor approves and signs it within the period allowed for his consideration; or,

(2) if the Governor does not return it to the house of origin, with a statement of his objections, before the expiration of the period allowed for his consideration; or,

(3) if, upon reconsideration of a bill objected to by the Governor, two-thirds of all the members of each house agree to pass the bill.

The Presentment Clause therefore "prevents the exercise of law-

making power without the concurrence of both houses of the

Legislature and approval by the Executive, unless the

Legislature can muster a two-thirds majority vote of both houses

to override the executive veto." Gen. Assembly, supra,

.

7 A-4912-13T3 In response to the Court's decision in General Assembly,

the Legislature immediately introduced concurrent resolution

SCR-133 proposing an amendment to the New Jersey Constitution

giving the Legislature the power to "invalidate any rule or

regulation, in whole or part," and to "prohibit any proposed

rule or regulation, in whole or part, by a majority of the

authorized membership of each House." The Attorney General

appealed the decision of the Secretary of State to place the

proposed constitutional amendment on the ballot, arguing the

interpretive statement was confusing and that the language of

SCR-133 was ambiguous. See Kimmelman v. Burgio,

(App. Div. 1985).

In Kimmelman, we concluded the proposed amendment should be

placed on the ballot, but agreed the interpretive statement was

misleading.

. We suggested the interpretive

statement be replaced with the following language:

State executive agencies are authorized to issue rules and regulations which have the force and effect of law. The Legislature may review those rules and regulations from time to time in order to determine whether they conform with the intent of the statutes. The Supreme Court of New Jersey has ruled that under the New Jersey Constitution in general the Legislature may not invalidate an executive rule or regulation except by adopting legislation subject to the Governor's veto. This amendment addresses that Supreme Court

8 A-4912-13T3 ruling by modifying the New Jersey Constitution to allow the Legislature to invalidate executive rules and regulations without enacting legislation and without presenting the issue to the Governor. Its enactment would constitute a fundamental change in the relationship between the co- equal branches of government.

[Id. at 55 (emphasis added).]

In 1985, this interpretive statement appeared on the ballot, but

the voters rejected the sweeping proposed constitutional

amendment.

Instead, seven years later, the voters approved amending

the New Jersey Constitution with the text of the Legislative

Review Clause, giving the Legislature limited power to

invalidate an administrative rule or regulation, which states:

No rule or regulation made by any department, officer, agency or authority of this state, except such as relates to the organization or internal management of the State government or a part thereof, shall take effect until it is filed either with the Secretary of State or in such other manner as may be provided by law. The Legislature shall provide for the prompt publication of such rules and regulations. The Legislature may review any rule or regulation to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement. Upon a finding that an existing or proposed rule or regulation is not consistent with legislative intent, the Legislature shall transmit this finding in the form of a

9 A-4912-13T3 concurrent resolution to the Governor and the head of the Executive Branch agency which promulgated, or plans to promulgate, the rule or regulation. The agency shall have 30 days to amend or withdraw the existing or proposed rule or regulation. If the agency does not amend or withdraw the existing or proposed rule or regulation, the Legislature may invalidate that rule or regulation, in whole or in part, or may prohibit that proposed rule or regulation, in whole or in part, from taking effect by a vote of a majority of the authorized membership of each House in favor of a concurrent resolution providing for invalidation or prohibition, as the case may be, of the rule or regulation. This vote shall not take place until at least 20 calendar days after the placing on the desks of the members of each House of the Legislature in open meeting of the transcript of a public hearing held by either House on the invalidation or prohibition of the rule or regulation.

[N.J. Const. art. V, § 4, ¶ 6 (emphasis added).]

The Legislative Review Clause specifically addressed the Court's

decision in General Assembly, supra,

.

Pursuant to the unambiguous plain language of the

Legislative Review Clause, the Legislature may review the rule

or regulation to determine if it conforms to legislative intent,

reflected in "language of the statute which the rule or

regulation is intended to implement." N.J. Const. art. V, § 4,

¶ 6. In other words, the text of the Legislative Review Clause

permits the Legislature to analyze two things: the State agency

10 A-4912-13T3 administrative rule or regulation and the language of the

statute.

II.

In May 2012, the CSC established a pilot program for job

banding in the CSC and the Department of the Treasury. Job

banding means grouping certain job titles into one "band" and

allowing advancement of employees from lower to higher titles in

the same band without competitive promotional examination. The

program included job banding the Human Resource Consultant,

Personnel and Labor Analyst, State Budget Specialist, and Test

Development Specialist title series.

In February 2013, the CSC filed a proposal (the proposal)

to amend its regulations and implement the Rule. The proposal

appeared in the March 2013 Register, 45 N.J.R. 500(a). The

Proposed Rule (Proposed Rule) implemented job banding,

redefining "promotion" to mean "movement to a title with a

higher class code not in the employee's current job band."

According to the Proposed Rule, a "promotion" from a lower

title to a higher title within a job band would be redefined as

an "advancement appointment." Adopting the Proposed Rule would

allow job bands and advancement of employees in the competitive

service from lower to higher titles without the long-standing

requirement for competitive promotional examination. The CSC

11 A-4912-13T3 acknowledged this change by stating in its social impact

statement accompanying the proposal that

[o]rdinarily, to promote an employee to a higher title, both the appointing authority and interested eligibles are required to go through a process that consists of requesting an announcement, filing an application in order to determine eligibility to compete in an examination, developing an examination, conducting the examination, issuing an eligible list, certifying the list, and making appointments of reachable eligibles from the certification.

The practical effect of adopting the Proposed Rule would give

appointing authorities greater discretion in selecting

candidates for promotion to higher titles than would otherwise

exist in a competitive examination system.

Between June 2013 and November 2014, the Legislature passed

four sets of concurrent resolutions1 finding that the Rule, in

all its amended forms, contravened the CSA, which incorporated

the plain text of N.J. Const. art. VII, § 1, ¶ 2. In June 2013,

Assembly resolution ACR-199 and Senate resolution SCR-158 were

introduced in the Legislature, pursuant to the Legislative

1 June 2013 (ACR-199, which the Senate had substituted for SCR- 158); January 2014 (ACR-215, which the Senate had substituted for SCR-166); June 2014 (SCR-116, which the Assembly had substituted for ACR-155); and November 2014 (ACR-192, and in December 2014, ACR-192, which the Senate had substituted for SCR-147).

12 A-4912-13T3 Review Clause. The resolutions stated that the Legislature

found the Proposed Rule was inconsistent with the legislative

intent as reflected in the statutes governing appointments and

promotions in the classified service. The Legislature passed

ACR-1992 after considering the Proposed Rule in light of the

plain text of the CSA. The Legislature also noted the public

policy, statutes, and constitutional provisions applicable to

public employees' appointments and promotions in the competitive

division of the classified service.

In these concurrent resolutions, the Legislature resolved

that

[1.] The proposed new [Rule] is contrary to the spirit, intent, and plain meaning of the provision in the New Jersey Constitution [N.J. Const. art. VII, § 1, ¶ 2, referenced in the CSA] that requires that promotions be based on merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive.

[2.] The fact that the proposed new [R]ule would eliminate competitive promotional examinations for tens of thousands of positions for which such exams have been administered for decades is compelling evidence that it is practicable to continue to determine the merit and fitness of candidates for such promotional positions by competitive examination in accordance with the New Jersey Constitution.

2 The Senate substituted ACR-199 for SCR-158.

13 A-4912-13T3 [3.] The proposed new [R]ule is not consistent with the legislative intent that the public policy of this State is to select and advance employees on the basis of their relative knowledge, skills and abilities, ensure equal employment opportunity at all levels of public service, and protect career public employees from political coercion.

[4.] The proposed new [R]ule is not consistent with the legislative intent that a competitive promotional examination process be established, maintained, and administered by the [CSC] to ensure that promotions are based on merit and fitness and are not based on patronage or discriminatory reasons.

[5.] The proposed new [R]ule is not consistent with the legislative intent that whenever a veteran ranks highest on a promotional certification, a nonveteran shall not be appointed unless the appointing authority shall show cause before the [CSC] why a veteran should not receive such promotion.

[6.] The proposed new [R]ule is not consistent with the intent of the Legislature as expressed in the language of the [CSA], including the spirit, intent, or plain meaning of N.J.S.A. 11A:3-1, N.J.S.A. 11A:4-1, N.J.S.A. 11A:4-8 or N.J.S.A. 11A:5- 7.

The Legislature transmitted the concurrent resolutions to the

CSC on December 4, 2013, and notified the CSC that it would have

thirty days to "amend or withdraw" the Proposed Rule, or if

there was no action, the Legislature may, by the passage of

14 A-4912-13T3 another concurrent resolution, invalidate the Proposed Rule "in

whole or in part."

On December 23, 2013, the CSC adopted amendments (the first

amendments) to the Proposed Rule (the First Amended Proposed

Rule). The first amendments, however, permitted the CSC to

place titles in job bands and advance employees from lower to

higher titles in a job band upon attaining certain

"competencies." They also stated that veterans would receive

the same preference in advancements within the band as they did

in promotional settings in place at the time, limited the scope

of job banding to State service, excluded law enforcement and

public safety jobs from job banding, and stated that employees

would retain the right to complain about discrimination in the

advancement process.

These amendments did not change the provisions of the rule

that allowed job banding of titles and promotions within those

titles without competitive examinations. The first amendments

therefore did not withdraw or substantively amend the Proposed

Rule to cure its inconsistency with the statutory provisions of

the CSA which require promotional competitive testing for

appointments and promotions in the State's competitive service.

15 A-4912-13T3 In January 2014, the Legislature passed concurrent

resolution ACR-215,3 which invalidated the First Amended Proposed

Rule. Nevertheless, on May 7, 2014, the CSC disregarded the

Legislature's veto and adopted the First Amended Proposed Rule

with an effective date of June 2, 2014. The CWA appealed from

the CSC's decision to adopt the First Amended Proposed Rule

shortly thereafter.

In May 2014, another set of concurrent resolutions was

introduced in the Legislature pursuant to the Legislative Review

Clause. The Senate introduced SCR-116 and the Assembly

introduced ACR-155. On June 12, 2014 and June 16, 2014, the

Senate and the Assembly passed these concurrent resolutions,

which mirrored ACR-199 and SCR-158, stating that the First

Amended Rule remained inconsistent with legislative intent and

added "[a]ny amended rule that contains a job banding provision

or elimination of competitive promotional examinations shall be

deemed by the Legislature as violating Article VII, [§ 1, ¶] 2

of the Constitution of the State of New Jersey and the [CSA.]"

The Legislature transmitted SCR-116 and ACR-155 to the CSC on

June 17, 2014.

3 The Senate substituted ACR-215 for SCR-166.

16 A-4912-13T3 On July 16, 2014, the CSC proposed a second set of

amendments (the Second Amended Proposed Rule). The Second

Amended Proposed Rule stated that the "appointing authority

would be required to obtain approval of the advancement

appointment selection process from the Chairperson of the [CSC]

or designee" before proceeding with its advancement appointment

selection process. Furthermore, the Second Amended Proposed

Rule stated that the appointing authority would have to rank

candidates after determining which employees may receive an

advancement appointment. The Second Amended Proposed Rule also

retained for civil titles in State service the same components

of the Proposed Rule, specifically, job banding and the lack of

competitive promotional examinations, to which the Legislature

fundamentally and repeatedly found to be inconsistent with the

intent of the plain language of the statutes governing

promotions in the competitive service.

Once again, concurrent resolutions were introduced in the

Legislature: ACR-192 was introduced in the Assembly on September

29, 2014, and SCR-147 was introduced in the Senate on October 9,

2014. On October 22, 2014, the CSC adopted its Second Amended

Proposed Rule. On November 13, 2014, the Assembly passed ACR-

192, and on December 18, 2014, the Senate passed ACR-192, which

the Senate had substituted for SCR-147. ACR-192 invalidated the

17 A-4912-13T3 Second Amended Proposed Rule stating it remained inconsistent

with legislative intent of the CSA and the civil service

provision of the New Jersey Constitution.

In February 2015, the CWA wrote to the CSC asking whether

the CSC planned to proceed with the Second Amended Proposed

Rule, given the Legislature's numerous concurrent resolutions.

On February 9, 2015, the CSC rendered its decision asserting

that the Second Amended Proposed Rule was not invalidated by the

Legislature. The CWA appealed from this decision.

In June 2015, the Office of Information Technology (OIT)

submitted a proposal to the CSC to implement job banding for

Software Development Specialist 1 and 2 and Network

Administrator 1 and 2. In July 2015, the CWA requested that the

CSC withhold a decision on whether to implement OIT's proposal

to band job titles. On July 31, 2015, the CSC issued its

decision approving OIT's job banding proposal. The Legislature

and the CWA appealed from this decision.

In July 2015, the New Jersey Department of Transportation

(NJDOT) submitted a proposal to the CSC to discontinue certain

titles and consolidate others. The NJDOT proposed to assign

seven job titles to the new Highway Operation Technician (HOT)

Title Series and job band them pursuant to the Rule. This new

title series included HOT Trainee, HOT 1, HOT 2, and HOT 3. On

18 A-4912-13T3 August 21, 2015, the CSC issued its decision approving the

NJDOT's proposal. The Legislature and the IFPTE appealed from

this decision.

III.

On appeal, the Legislature, the CWA, and the IFPTE argue

the Legislature possessed the constitutional power to veto the

Rule; the Legislature followed the procedural process expressed

in the Legislative Review Clause for invalidating the Rule; the

Legislature's findings and conclusions contained in its

concurrent resolutions are entitled to substantial deference;

and the CSC's decision to ignore the Legislature's invalidation

of the Rule amounted to a violation of the separation of powers

doctrine.

We begin by addressing our standard of review applicable to

the Legislature's findings and conclusions contained in its

concurrent resolutions.

The Legislature argues our role is primarily limited to

determining whether it followed procedural safeguards contained

in the Legislative Review Clause. Relying on the Legislative

Review Clause, the Legislature maintains "[t]here is [generally]

no role for judicial review of the Legislature's findings that a

regulation is contrary to legislative intent." The Legislature

asserts we may reverse its concurrent resolutions only if its

19 A-4912-13T3 findings and conclusions are repugnant to the New Jersey

Constitution. The Legislature contends that a presumption of

validity applies to its concurrent resolutions, and that we

should afford the Legislature substantial deference and not

second-guess its findings.

CWA, like the Legislature, asserts we should afford

deference to the findings and conclusions contained in the

Legislature's concurrent resolutions invalidating the Rule. CWA

points out that here, unlike in a typical third-party challenge

to a final agency decision, we are primarily reviewing whether

the Legislature correctly exercised its veto power. CWA

therefore emphasizes that the well-settled standards of review

in typical agency appeals are inapplicable. The IFPTE also

argues that if the Legislature properly exercises its

constitutional veto power, an executive agency is "bound to

adhere to the legislative will and not implement the invalidated

regulation."

The CSC submits our role is not as limited as appellants

advocate. The CSC emphasizes that we should conduct an exacting

and thorough judicial review of the Legislature's findings and

conclusions. It stresses that such a review is fundamental to

our system of governmental checks and balances. The CSC urges

judicial review of the Legislature's invalidation of the Rule to

20 A-4912-13T3 avoid violations of the law in general, and particularly to

ensure compliance with the separation of powers and presentment

clauses of the New Jersey Constitution. The CSC argues that

such an exhaustive judicial review is not precluded or limited

in any way by the plain text of the Legislative Review Clause.

We agree that our general standard of review in appeals

from final agency decisions is inapplicable. In a typical

appeal from a final agency decision, which this is not, our

capacity to review administrative actions "is severely limited,"

Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys.,

(1995), and we are not free to substitute our judgment for

the "'wisdom of a particular administrative action'" as long as

the action is statutorily authorized and not arbitrary or

unreasonable. Gloucester Cty. Welfare Bd. v. N.J. Civil Serv.

Comm'n,

(1983) (quoting N.J. Guild of Hearing

Aid Dispensers v. Long,

(1978)). Although such

a standard has been well-recognized for years, the

distinguishing factor obviating use of an administrative agency

standard of review here is the substantial involvement of the

Legislature pursuant to the Legislative Review Clause. We are

not merely determining, as we would if this were a typical

appeal from an agency decision, whether the CSC decisions were

21 A-4912-13T3 arbitrary, capricious, or unreasonable, or whether they were

otherwise unsupported by credible evidence in the record.

The plain text of the Legislative Review Clause does not,

however, limit our traditional role of interpreting the law.

And it does not preclude the judicial branch from exercising its

role to enforce the checks and balances embodied in the State

Constitution. The Legislative Review Clause does not negate the

well-recognized role of the judiciary to safeguard the

protections afforded in the constitution and to prevent any of

the branches from potentially exercising illegitimate power over

the other. As a result, we are not bound by the Legislature's

interpretation of a statute. Such questions of law have always

been within the province of the judicial branch.

We nevertheless conclude that the Legislature is entitled

to substantial deference when it exercises its constitutional

power to invalidate an administrative rule or regulation

pursuant to the Legislative Review Clause. We do so because the

legislative process for invalidating an administrative rule or

regulation, established pursuant to the Legislative Review

Clause, is procedurally rigorous, substantively precise, and

most importantly, the Legislature possesses general expertise in

the field of lawmaking.

22 A-4912-13T3 We retain our authority, however, to review the

Legislature's findings and conclusions to ensure the Legislature

has validly exercised its veto power under the Legislative

Review Clause, by invalidating the rule or regulation, rather

than passing new legislation, subject to the presentment clause.

We therefore hold that we may reverse the Legislature's

invalidation of an administrative executive rule or regulation

if (1) the Legislature has not complied with the procedural

requirements of the Legislative Review Clause; (2) its action

violates the protections afforded by the Federal or New Jersey

Constitution; or (3) the Legislature's concurrent resolution

amounts to a patently erroneous interpretation of "the language

of the statute which the rule or regulation is intended to

implement."

At least one other jurisdiction with even stronger language

than that which appears in the Legislative Review Clause has

likewise persuasively held that the judiciary is not precluded

from reviewing the Legislature's veto power. For example, the

Iowa constitution includes a broad provision allowing for

nullification of administrative rules, which states that "[t]he

general assembly may nullify an adopted administrative rule of a

state agency by the passage of a resolution by a majority of all

of the members of each house of the general assembly." Iowa

23 A-4912-13T3 Const. art. III, § 40. The Iowa Supreme Court found that this

provision did not preclude judicial review to determine if its

legislative branch violated the law by invalidating an

administrative rule or regulation. Iowa Fed'n of Labor v. Iowa

Dep't of Job Service,

(1988) (stating

"[g]iven th[e] importance of the judiciary's oversight of agency

rules, we doubt that article III, section 40 was intended to

eliminate one of the three important checks over an agency's

power to legislate").

IV.

When reviewing a Legislative determination that an

administrative rule or regulation contravenes the "language of

the statute which the rule or regulation is intended to

implement," we first analyze whether the Legislature complied

with procedural requirements outlined in the Legislative Review

Clause. N.J. Const. art. V, § 4, ¶ 6. Thereafter we afford the

Legislature's conclusions and findings substantial deference,

keeping in mind that the judiciary is the ultimate arbiter of

questions of law.

(i)

Here, the Legislature complied with the procedural

requirements imposed by the Legislative Review Clause on two

occasions. First, the Legislature passed ACR-199 after the CSC

24 A-4912-13T3 proposed the Rule. In mid-December 2013, the CSC proposed a

First Amended Proposed Rule, and in January 2014, the

Legislature passed concurrent resolution ACR-215 to invalidate

it. Although the CSC purportedly amended the Proposed Rule, the

amendments did not alter the Rule's omission of competitive

examinations in job banding.

Second, the Legislature passed SCR-116, which mirrored ACR-

199, in June 2014. The Legislature stated that the job banding

regulations were still inconsistent with legislative intent and

"[a]ny amended rule that contains a job banding provision or

elimination of competitive promotional examinations shall be

deemed by the Legislature as violating Article VII, [§ 1, ¶] 2

of the Constitution of the State of New Jersey and the Civil

Service Act[.]" After the CSC introduced a purported Second

Amended Proposed Rule in July 2014, which still eliminated

competitive promotional examinations for job banding, the

Legislature passed ACR-192.

We reject the CSC's contention that its amendments to the

Proposed Rule required the Legislature to begin the veto

procedural process anew. The Legislature correctly invalidated

the Proposed Rule, and the amendments consistently ignored the

Legislature's steadfast substantive objection to job banding

without competitive promotional examinations.

25 A-4912-13T3 (ii)

The Legislature determined that the Rule conflicts with the

long-standing law in New Jersey requiring that appointment and

promotions for the civil service in the competitive division

shall be accomplished to ensure equal employment opportunity and

shall be made according to merit and fitness, which is

ascertained, as far as practicable, by competitive examination.

That determination by the Legislature does not amount to a

patently erroneous interpretation of the language of the CSA.

Applying substantial deference to the Legislature, we discern no

reason to disagree with the Legislature's determination.

In 1986, the Legislature found and declared the public

policy regarding state employees. In N.J.S.A. 11A:1-2, the

Legislature explicitly stated:

a. It is the public policy of this State to select and advance employees on the basis of their relative knowledge, skills and abilities;

b. It is the public policy of this State to provide public officials with appropriate appointment, supervisory and other personnel authority to execute properly their constitutional and statutory responsibilities;

c. It is the public policy of this State to encourage and reward meritorious performance by employees in the public service and to retain and separate employees on the basis of the adequacy of their performance;

26 A-4912-13T3 d. It is the public policy of this State to ensure equal employment opportunity at all levels of the public service; and

e. It is the public policy of this State to protect career public employees from political coercion and to ensure the recognition of such bargaining and other rights as are secured pursuant to other statutes and the collective negotiations law.

The Legislature recognized that the Constitution of the State of

New Jersey specifically addressed appointments and promotions of

public employees. N.J. Const. art. VII, § 1, ¶ 2 states:

Appointments and promotions in the civil service of the State, and of such political subdivisions as may be provided by law, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive; except that preference in appointments by reason of active service in any branch of the military or naval forces of the United States in time of war may be provided by law.

[(Emphasis added).]

Consequently, in 1993, the Legislature made further

findings and declarations as to civil service, classification,

and compensation of public employees. In N.J.S.A. 11A:3-2.1,

the Legislature stated:

a. the importance of fairness and impartiality in State employment is recognized in Article VII, Section I, paragraph 2 of the New Jersey Constitution

27 A-4912-13T3 which provides that, "Appointments and promotions in the civil service of the State shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive";

b. nevertheless, the framers recognized that appointments to certain types of employment are not readily made through a competitive examination process;

c. accordingly, in implementing the constitutional provision, the Legislature has provided in N.J.S.[A.] 11A:3-2 that the career service shall have a competitive division and a noncompetitive division;

d. it was the purpose of the Legislature, in making this distinction, to provide for positions which cannot properly be tested for, such as lower-level jobs which do not require significant education or experience, to be filled without the need of competitive examination but with civil service protection for the employee;

e. however, recent published reports suggest that the purpose of the noncompetitive division has been subverted by the transfer into that division of titles which properly belong in the unclassified service or in the competitive division of the career service, and the making of appointments thereto;

f. the apparent reason for this misuse of the noncompetitive division is to protect political appointees prior to the beginning of a new administration; and

g. in order to prevent this abuse of the civil service system, there is need for a statutory prohibition on the movement of job titles and political appointees to the

28 A-4912-13T3 noncompetitive division of the career service during the final six months of the Governor's term in office.

On the subject of competitive examinations, N.J.S.A. 11A:4-1

states that the CSC shall provide for:

a. The announcement and administration of examinations which shall test fairly the knowledge, skills and abilities required to satisfactorily perform the duties of a title or group of titles. The examinations may include, but are not limited to, written, oral, performance and evaluation of education and experience;

b. The rating of examinations;

c. The security of the examination process and appropriate sanctions for a breach of security;

d. The selection of special examiners to act as subject matter specialists or to provide other assistance. Employees of the State or political subdivisions may be so engaged as part of their official duties during normal working hours with the approval of their appointing authority. Extra compensation may be provided for such service outside normal working hours; and

e. The right to appeal adverse actions relating to the examination and appointment process, which shall include but not be limited to rejection of an application, failure of an examination and removal from an eligible list.

Furthermore, the CSC must meet certain certification and

appointment obligations expressed in N.J.S.A. 11A:4-8, which

provides that

29 A-4912-13T3 The [CSC] shall certify the three eligibles who have received the highest ranking on an open competitive or promotional list against the first provisional or vacancy. For each additional provisional or vacancy against whom a certification is issued at that time, the [CSC] shall certify the next ranked eligible. If more than one eligible has the same score, the tie shall not be broken and they shall have the same rank. If three or more eligibles can be certified as the result of the ranking without resorting to all three highest scores, only those eligibles shall be so certified.

A certification that contains the names of at least three interested eligibles shall be complete and a regular appointment shall be made from among those eligibles. An eligible on an incomplete list shall be entitled to a provisional appointment if a permanent appointment is not made.

Eligibles on any type of reemployment list shall be certified and appointed in the order of their ranking and the certification shall not be considered incomplete.

Thus, the appointment and promotions of the civil service

of New Jersey must be made based on merit and fitness except if

impracticable. Recognizing that not all types of employment are

readily discerned through a competitive examination process, the

Legislature declared in N.J.S.A. 11A:3-2, that career service

"shall have two divisions, the competitive division and the

noncompetitive division." It is therefore well-established, and

consistent with N.J. Const. art. VII, § 1, ¶ 2, that

appointments and promotions of public employees in the civil

30 A-4912-13T3 service "shall be . . . ascertained, as far as practicable, by

examination[.]"

It is undisputed that competitive examinations have been

used for years to test the merit and fitness of persons in the

State's competitive service. This practice indicates that it is

practicable to use such examinations for promotions in the

competitive service, and if not, the CSC has the authority to

move the title to the non-competitive service.

We therefore conclude that the Legislature validly

exercised its authority under the Legislative Review Clause and

invalidated the Rule. The Legislature's findings and

conclusions, contained in its numerous concurrent resolutions,

comply with the procedural requirements of the Legislative

Review Clause, and do not violate constitutional protections, or

do not amount to a patently erroneous interpretation of "the

language of the statute which the rule or regulation is intended

to implement." The Legislature reasonably found that job

banding without competitive promotional examinations was

inconsistent with the legislative intent reflected in the plain

language of the relevant provisions of the CSA.

We therefore reverse the decisions and vacate the

implementation of the Rule, including the subsequent amendments.

31 A-4912-13T3