SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2286-14T2

IN THE MATTER OF JOSEPH LANG.

______________________________

Submitted February 28, 2017 - Decided

Before Judges Ostrer and Vernoia.

On appeal from the New Jersey Civil Service 

Commission, CSC Docket Nos. 2015-342, 2015-

1335, 2015-1336, 2015-1337 and 2015-1338.

Fein, Such, Kahn & Shepard, P.C., attorneys 

for appellant Joseph Lang (Brian W. Kincaid,

on the brief).

Christopher S. Porrino, Attorney General,

attorney for respondent Civil Service 

Commission (Melissa H. Raksa, Assistant 

Attorney General, of counsel; Todd A. Wigder,

Deputy Attorney General, on the brief).

PER CURIAM 

Appellant Joseph Lang appeals from a December 5, 2014 final 

agency decision of the Civil Service Commission (Commission)

denying his request for retroactive permanent appointment to the

second-level supervisor title of Fire Captain with the Harrison 

Fire Department. 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NOT FOR PUBLICATION WITHOUT THE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.

July 11, 2017
2 A-2286-14T2

I.

Lang was employed by the Harrison Fire Department as a Fire 

Captain, which at the time was a first-level supervisor title. In 

2009, he passed a promotional examination for the second-level 

supervisor title, which was then known as Battalion Fire Chief. 

Lang and Henry Richard, Joseph Nichirco, John Dwyer and John

Crilley, who were also eligible for promotion to the Battalion 

Fire Chief title, were placed on an eligible list that was 

effective for a three-year period commencing on September 2, 2010. 

Richard ranked first on the list, Nichiro was second, and Lang was 

third. In 2011, Richard was promoted to Battalion Fire Chief.

Due to financial difficulties, Harrison implemented layoffs

in 2011, eliminating the Deputy Fire Chief and Battalion Fire 

Chief titles and reducing the number of first-level supervisor

Fire Captains from ten to five. Under the plan, the fire department 

consisted of a Fire Chief, five Fire Captains and twenty-four Fire 

Fighters.

As a result of the layoffs, Richard was demoted from Battalion 

Fire Chief to the second-level supervisor Fire Captain title. The 

four Fire Captains with the greatest seniority, Nichirco, Dwyer,

John Mulrenan and Robert Gillen, retained their titles as Fire 

Captains. Because they had less seniority, Lang and another Fire 

Captain, Ronald Greenemeier, were demoted to Fire Fighters.
3 A-2286-14T2

Harrison subsequently negotiated an agreement with the 

affected employees' collective negotiations representative. Under 

the agreement, Harrison created a new first-level supervisor title 

of Fire Lieutenant,

1 and the Fire Captain title became a secondlevel supervisor title. 

In November 2011, Harrison informed the Commission about a 

plan to reorganize the department. Harrison stated the department 

would consist of a Fire Director,

2 five second-level supervisor

Fire Captains, four first-level supervisor Fire Lieutenants, and 

twenty Fire Fighters. To implement the reorganization, Harrison 

sought the Commission's approval to promote Richard, Dwyer,

Nichirco, and Lang to the second-level supervisor Fire Captain 

title. Harrison also proposed making a provisional appointment of 

Mulrenan, Gillen, or Greenemeier to the fifth Fire Captain 

position. 

In a December 8, 2011 letter responding to Harrison's 

proposal, the Commission advised that Richard, Nichirco, Mulrenan,

Dwyer and Gillen were already serving in the Fire Captain title. 

The Commission further stated that Lang and Greenemeier were in

 

1 Harrison subsequently adopted an ordinance creating the firstlevel supervisory title of Fire Lieutenant. 

2 Following the implementation of the layoff plan, Harrison 

eliminated the Fire Chief title and placed the supervision of the 

fire department with a civilian Fire Director.
4 A-2286-14T2

the Fire Fighter's title and therefore would have to first be 

appointed to the Fire Lieutenant title through certification of 

the special reemployment list for a first-level supervisor title. 

In June 2012, Lang and Greenemeier were appointed Fire 

Lieutenants. Harrison did not take any action to appoint Richard,

Dwyer, Nichirco, Mulrenan, or Gillen to the second-level 

supervisor Fire Captain title. Two years later, its failure to do

so provided the basis for the requests by Harrison and Lang for 

the retroactive appointments to the second-level supervisor Fire 

Captain title that are at issue here.

In 2014, the Commission announced a Fire Captain test.

Harrison requested to be included in the test but only for a

second-level supervisor Fire Captain title. The Commission advised 

the test would be a second-level supervisor's test, which was open 

to Fire Lieutenants.

Harrison was subsequently advised by the Commission that 

three of Harrison's Fire Captains, Nichirco, Dwyer and Gillen,

3

were required to take the test. Harrison objected and asserted 

that Nichirco, Dwyer and Gillen were in their Fire Captain titles 

 

3 Richard was not required to take the test because he had been 

appointed to a second-level supervisor position from the 2010 

Battalion Fire Chief promotional list prior to his 2011 demotion 

to Fire Captain. Mulrenan had applied for retirement and was not 

required to take the test.
5 A-2286-14T2

pursuant to the Commission's December 8, 2011 letter. Harrison 

also asserted it did not request certification for its 2011 

appointments of Richard, Nichirco and Dwyer to the Fire Captain 

title from the Battalion Fire Chief eligible list because it 

implemented the Commission's directive in the letter. Harrison 

noted it never intended to require that Dwyer and Nichirco take 

the Fire Captain test because they performed the second-level 

supervisor's duties for two years and were on the 2010 Battalion 

Fire Chief promotional list, which expired in 2013. 

Harrison also argued that had it known the Commission would

require that Dwyer and Nichirco take a Fire Captain's test in 

2014, it would have requested in 2011 that the Commission certify 

the list for appointments to the second-level supervisor Fire 

Chief title, and would have promoted Dwyer and Nichirco from the

list. Harrison also argued that, for the same reason, it would 

have appointed Lang in 2011 to Fire Chief because he was also on 

the Battalion Fire Chief eligible list. 

Harrison requested that the Commission revive the expired 

Battalion Fire Chief eligible list to permit the appointment of

Nichirco, Dwyer and Lang to the second-level supervisor Fire Chief 

title. Harrison further requested that the Commission waive the 

requirement that Gillen take the test because he performed the 

duties of a Fire Captain since 2011, and passed a second-level 
6 A-2286-14T2

supervisor exam in 2000, and therefore did not need any further 

testing.

In its December 5, 2014 final decision, the Commission found 

that when Harrison reorganized the fire department in 2011, it 

failed to follow required certification procedures for the secondlevel supervisors, and "simply left . . . Richard, Nichirco,

Mulrenan, Dwyer and Gillen unchanged in their position of Fire 

Captain." The Commission also stated that Harrison "failed to 

follow certification procedures and timely appoint" Richard,

Dwyer, and Nichirco as "second-level supervisors from" the 

Battalion Fire Chief eligible list, and failed to make "provisional 

appointments pending promotional examinations for . . . Gillen and 

Mulrenan." Harrison erred by failing to make changes to the 

official records after the 2011 reorganization. The Commission

determined Harrison's failure "to take [the] steps to effectuate 

appointments from the Battalion Fire Chief . . . list is a clear 

administrative error on its part."

The Commission determined Richard was unaffected by 

Harrison's errors because he had been appointed to the secondlevel supervisor Battalion Fire Chief title, and his regular 

appointment to Fire Chief could be made from the special 

reemployment list during the 2011 reorganization. Based on 

equitable considerations, the Commission concluded it was 
7 A-2286-14T2

appropriate to revive the Battalion Fire Chief eligible list and 

retroactively appoint Dwyer and Nichirco from it because they were 

otherwise eligible for appointment from the list in 2011, and 

performed the duties of a second-level supervisor Fire Captain 

since that time. The Commission rejected Harrison's request for a 

waiver from the test requirement for Gillen because he was not on 

the Battalion Fire Chief eligible list and therefore was not 

entitled to a retroactive appointment based on the requested 

revival of the list.

The Commission also denied Lang's request for a retroactive 

permanent appointment to Fire Captain from the Battalion Fire 

Chief eligible list. The Commission determined Lang did not have 

a vested property interest in the Fire Chief position because the 

list expired in 2013. The Commission found Lang did not commence 

or complete a working test period in the second-level supervisor 

Fire Captain title, hold a provisional second-level supervisor 

title, or perform the duties of a second-level supervisor. The 

Commission noted that in November 2012, it made a classification 

determination that Lang was performing first-level supervisor Fire 

Lieutenant duties, and Lang did not appeal the Commission's 

decision.

The Commission also reasoned that if in 2011 Harrison had 

properly requested certification of the Battalion Fire Chief 
8 A-2286-14T2

eligible list and the special reemployment list, Richard, Nichirco 

and Dwyer would have been removed from the eligible list based on 

their appointments to the Fire Captain title. Their appointments 

would have left only Lang and Crilley on the list, thereby 

rendering the list incomplete. The Commission stated that because 

Lang had never performed second-level supervisor duties following

the 2011 reorganization, it could not be assumed Harrison would 

have appointed Lang a Fire Captain from the Batallion Fire Chief 

list if Harrison had not erred in failing to properly make the 

2011 Fire Captain appointments. The Commission concluded that Lang 

was not entitled to a retroactive permanent appointment to the 

Fire Captain title because in 2011, Harrison knew it could have 

only five Fire Captains, five persons were performing Fire Captain 

duties, and "Lang was not one of them." Lang appealed the 

Commission's final decision.4

II.

Our review of an agency's decision is limited. In re 

Stallworth, 208 N.J. 182, 194 (2011). We "afford[] a 'strong 

presumption of reasonableness' to an administrative agency's 

exercise of its statutorily delegated responsibilities." Lavezzi 

v. State, 219 N.J. 163, 171 (2014) (quoting City of Newark v. Nat. 

 

4 Harrison did not appeal.
9 A-2286-14T2

Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539, cert. 

denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980)). A 

reviewing court "should not disturb an administrative agency's 

determinations or findings unless there is a clear showing that 

(1) the agency did not follow the law; (2) the decision was 

arbitrary, capricious, or unreasonable; or (3) the decision was 

not supported by substantial evidence." In re Virtua-West Jersey 

Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). 

The party challenging the agency's action has the burden of proving 

that the action was arbitrary, capricious, or unreasonable. 

Lavezzi, supra, 219 N.J. at 171. 

Lang argues the Commission's decision was made without a 

rational basis and is arbitrary, capricious and unreasonable. He 

contends the Commission erred in finding that he never performed 

second-level supervisor duties because he performed such duties 

prior to the 2011 reorganization. He asserts he was entitled to 

the requested retroactive appointment because he was on the 

Battalion Fire Chief eligible list, and he is similarly situated 

to Nichirco and Dwyer and the Commission granted retroactive 

appointments to them. 

The Commission has the authority to revive an expired eligible 

list "to correct an administrative error." N.J.S.A. 11A:4-6;

N.J.A.C. 4A:4-3.4. The Commission exercised its authority here to 
10 A-2286-14T2

permit Harrison to retroactively appoint Nichirco and Dwyer to the 

Fire Captain title because Harrison's failure to properly appoint 

them in 2011 was based on the erroneous belief the Commission's 

December 8, 2011 letter rendered the appointments unnecessary. The 

Commission reasoned that but for Harrison's administrative errors,

Harrison would have properly appointed Nichirco and Dwyer in 2011

from the Battalion Fire Chief eligible list which was then in 

effect. The Commission's decision that Harrison would have 

otherwise appointed Nichirco and Dwyer in 2011 is supported by the 

evidence showing that Nichirco and Dwyer were promoted to the 

second-level supervisor Fire Captain title during the 

reorganization based on the Battalion Fire Chief eligible list,

and performed the duties of the title thereafter. 

Lang's arguments are based on the premise that he is 

identically situated to Nichirco and Dwyer, and the Commission 

therefore arbitrarily denied his request for the retroactive 

appointment. The evidence presented to the Commission demonstrated 

otherwise. Unlike Nichirco and Dwyer, Harrison could not have 

appointed Lang to the second-level supervisor Fire Captain title 

in 2011 because he had been demoted to Fire Fighter as part of the 

2011 layoffs and therefore was not eligible for a second-level 

supervisor position. Moreover, in 2011 Harrison did not take any 

action to appoint Lang to the second-level supervisor title as it 
11 A-2286-14T2

did for Nichirco and Dwyer. Instead, Harrison appointed Lang to a 

first-level supervisor title, Fire Lieutenant. In addition, the 

evidence showed Nichirco and Dwyer performed second-level 

supervisor duties at all times following the 2011 reorganization,

and that Lang performed only first-level supervisor duties as a 

Fire Lieutenant.

The evidence supports the Commission's determination that 

Harrison's 2011 administrative errors in failing to properly 

appoint Nichirco and Dwyer warranted their retroactive 

appointments. The evidence also showed Harrison's errors had no 

impact on Lang because even without them, he would not have been 

appointed to the second-level supervisor Fire Captain title. Thus,

Lang stood in shoes very different from those of Nichirco and 

Dwyer. Left unremedied, Harrison's 2011 errors adversely affected 

Nichirco and Dwyer. The errors, however, were irrelevant to Lang's 

appointment in 2011, and the Commission therefore reasonably 

determined there was no basis to retroactively appoint Lang to 

Fire Captain.

The Commission's determination that Lang was not entitled to 

a retroactive appointment based on Harrison's 2011 administrative 

errors is well-reasoned and supported by the evidence. We do not

discern anything arbitrary, capricious, or unreasonable in the 
12 A-2286-14T2

Commission's decision, and Lang has not established it was contrary 

to law. See Virtua-West Jersey Hosp., supra, 194 N.J. at 422.

Lang's remaining arguments are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.