SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1649-16T2

IN THE MATTER OF

ANNA DELANEY, DEPARTMENT

OF LAW AND PUBLIC SAFETY.

___________________________

Argued April 30, 2018 - Decided June 18, 2018

Before Judges Accurso and O'Connor.

On appeal from the New Jersey Civil Service 

Commission, Docket Nos. 2015-1255 and 2016-

1528.

Walter R. Bliss, Jr., argued the cause for 

appellant Anna Delaney.

Pamela N. Ullman, Deputy Attorney General, 

argued the cause for respondent New Jersey 

Civil Service Commission (Gurbir S. Grewal, 

Attorney General, attorney; Melissa Dutton 

Schaffer, Assistant Attorney General, of 

counsel; Pamela N. Ullman, on the brief).

PER CURIAM

Anna Delaney appeals from an August 3, 2015 final agency 

decision of the Civil Service Commission and a November 29, 2016 

decision denying her request for reconsideration. As Delaney 

has not demonstrated either decision was arbitrary, capricious 

or unreasonable, we affirm.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-1649-16T2

Following the 2012 open-competitive examination for the 

title of Forensic Scientist I, LPS, Delaney was tied with one 

other person at rank 19 on a list of 36 eligibles. Although the

posting announcing the examination stated only thirteen

positions were available, Delaney's name was included on three 

different certifications issued by the Commission. See N.J.A.C. 

4A:4-4.2(a). Each time, however, the Department of Law and 

Public Safety, the appointing authority, selected one of the 

other names on the certification pursuant to the "Rule of 

Three." See N.J.S.A. 11A:4-8. Those individuals received 

regular appointments effective December 15, 2012.

Delaney filed a grievance claiming she was more qualified 

than two other individuals hired off the list, one ranked 17 and 

the other 22, that she was advised that she could not resign 

from her current title of Senior Laboratory Technician and be 

re-hired as a Forensic Scientist I (a "resignation/pickup"), 

although this was done for another individual on the list, and 

that the Director of the Office of Forensic Science and the 

Chief Forensic Scientist told her she had been approved for 

promotion to Forensic Scientist I but she had "received nothing 

in writing." Delaney requested she be promoted to Forensic 

Scientist I retroactive to the date "that the other individuals 

on the list were hired" with an appropriate salary adjustment.
3 A-1649-16T2

Delaney and the Department settled her grievance with an 

agreement providing she would be provisionally appointed,

pending promotional procedures, to Forensic Scientist I

effective March 23, 2013, and would receive a regular 

appointment to the title effective April 3, 2014. The parties 

further agreed that Delaney's complaints about the Department's 

failure to appoint her from the eligibility list with a 

resignation/pickup and her request for a retroactive appointment

would remain open pending a determination by the Commission.

Delaney received provisional and regular appointments 

pursuant to the agreement and appealed the grievance 

determination through her union to the Commission. Delaney's 

union representative argued the Department's denial of a 

resignation/pickup resulted in Delaney's promotion being delayed 

three months and because "her permanent date is not the same as 

the other newly hired employees, this creates a severe 

disadvantage in title seniority and eligibility for the next 

promotional Forensic Scientist 2 position." The union also 

asserted Delaney "was placed in the first step of Range 25 

because the appointment was considered a promotion," while other 

new hires were placed in higher steps. The union argued that 

had Delaney "been granted the resignation/pickup, she would have 

the same seniority date as the other 19 individuals and would 
4 A-1649-16T2

have been placed in a higher step of the range." The union 

stated it was "appealing to the Commission to relax any rule 

that would allow Ms. Delaney's appointment to the Forensic 

Scientist I title be retroactive with pay to the same permanent 

date as the other employees hired off the open competitive list 

on December 15, 2012 and be placed in step 3 of Range 25."

The Commission denied Delaney's appeal. First, the 

Commission explained that even had Delaney been appointed from 

the eligible list, N.J.A.C. 4A:3-4.9 and N.J.A.C. 4A:4-7.9(a) 

establish that she would be treated as if she were being 

promoted, resulting in a salary increase equal to at least one 

increment in the salary range of her old title plus the amount 

necessary to place her on the next higher step in the new range;

that is, step one of salary range 25, exactly as calculated. 

Thus, the Commission explained, Delaney would have received the 

exact same salary even had she been appointed off the open 

competitive list as a resignation/pickup. 

Second, the Commission found no basis for a retroactive 

appointment under N.J.A.C. 4A:4-1.10(c). The Commission 

explained that retroactive appointment authorized by regulation

is reserved for two particular situations: where the employee 

was actually serving in and performing the duties of the title 

but due to some error or other good cause, her attainment of 
5 A-1649-16T2

permanent status was delayed or hindered; or where an employee, 

"whose appointment would have otherwise been mandated, was 

improperly removed from or bypassed on an eligible list, thereby 

preventing" her appointment. The Commission found nothing to 

suggest Delaney was performing the duties of a Forensic 

Scientist I prior to her provisional appointment.

The Commission also found no evidence to support Delaney's

claim she was improperly bypassed on the eligible list. 

Although acknowledging Delaney's assertion that she was "better 

qualified" than other individuals selected, the Commission noted

that N.J.S.A. 11A:4-8, N.J.S.A. 11A:5-7 and N.J.A.C. 4A:4-

4.8(a)(3)(ii) expressly permit an appointing authority to select 

from among the top three interested eligibles on an open 

competitive or promotional list, provided no veteran heads the 

list. The Commission further noted that at the time of these 

events, N.J.A.C. 4A:4-4.8 no longer required an appointing 

authority to even explain its reasons for choosing a lower 

ranked eligible from the certification.1 See 44 N.J.R. 137(a) 

(Jan. 17, 2012); 44 N.J.R. 1333(b) (May 7, 2012). Finding 

Delaney had not carried her burden to show she was improperly 

bypassed on the eligible list and was not entitled to a 

 

1 The Commission amended N.J.A.C. 4A:4-4.8 to delete the

requirement of a statement of reasons, effective May 7, 2012. 
6 A-1649-16T2

retroactive appointment or higher salary, the Commission denied 

Delaney's appeal. The Commission subsequently denied Delaney's 

request for reconsideration, finding she "merely reiterate[d] 

her [prior] arguments." 

Delaney appeals, arguing she was improperly bypassed on the 

open competitive list, the Commission's denial of a retroactive 

date for her appointment was arbitrary and capricious and she is 

entitled to a "plenary hearing on genuine issues of material 

fact raised by appellant's appeals." Our review of the record 

convinces us that none of these arguments is of sufficient merit 

to warrant extended discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Our role in reviewing the decision of an administrative 

agency is, of course, limited. In re Carter, 191 N.J. 474, 482 

(2007). We accord a strong presumption of reasonableness to an 

agency's exercise of its statutorily delegated responsibility, 

City of Newark v. Nat. Res. Council, Dep't of Envtl. Prot., 82 

N.J. 530, 539, cert. denied, 449 U.S. 983 (1980), and "give 

great deference to an agency's interpretation of statutes within 

its scope of authority and its adoption of rules implementing

the laws for which it is responsible," Hargrove v. Sleepy's, 

LLC, 220 N.J. 289, 302 (2015) (internal quotation marks

omitted). We will not upset the determination of an 
7 A-1649-16T2

administrative agency absent a showing it was arbitrary, 

capricious, or unreasonable; that it lacked fair support in the 

evidence; or it violated legislative policies. In re 

Stallworth, 208 N.J. 182, 194 (2011); Campbell v. Dep't of Civil 

Serv., 39 N.J. 556, 562 (1963). 

Applying those standards here, we find no basis to reverse 

the Commission's decision. Delaney does not contest the 

Commission's analysis of the regulations that establish her 

salary would have been exactly the same whether hired off a 

promotional list pursuant to a grievance settlement as she was

or off the open competitive list on which she ranked 19 of 36 

eligibles. The delay in her appointment did not adversely 

affect her eligibility to sit for the promotional examination 

for Forensic Scientist 2 with the employees hired off the open 

competitive list. None of those appointed had the one year in 

title required when the announcement for Forensic Scientist 2 

was made in September 2013 and there was no further announcement 

for the title during any period in which she would have been at 

a disadvantage vis-á-vis those employees appointed three months 

before she was.

As for her claim that the record contains no "substantive 

explanation by the Department or the Commission as to why the 

Department bypassed [Delaney] on the open competitive list and 
8 A-1649-16T2

then agreed to hire her in the title by means of a 'promotion'" 

via a grievance settlement, none was required. Delaney 

acknowledges the law is well settled that "[n]o right accrues to 

a candidate whose name is placed on an eligible list," In re 

Foglio, 207 N.J. 38, 44 (2011), and that "the 'rule of three'

accommodates the exercise of a broad discretion in hiring," 

Terry v. Mercer Cty. Bd. of Chosen Freeholders, 86 N.J. 141, 150 

(1981). We agree with the Commission that Delaney failed to 

carry her burden to establish the Department unlawfully failed 

to appoint her from the eligibility list entitling her to a 

retroactive appointment. See N.J.A.C. 4A:2-1.4(c). The issues 

being legal ones, and Delaney having never requested an

evidentiary hearing, we find no error in the Commission's 

decision to hear the matter on the written record. See N.J.A.C. 

4A:2-1.1(d); In re Wiggins, 242 N.J. Super. 342, 345 (App. Div. 

1990).

Affirmed.