NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0056-13T2

IN THE MATTER OF THE REALLOCATION

OF THE PROBATION OFFICER AND 

PROBATION OFFICER, BILINGUAL IN

SPANISH AND ENGLISH TITLES FROM

THE COMPETITIVE TO THE NONCOMPETITIVE DIVISION OF THE

CAREER SERVICE.

____________________________________

Argued April 22, 2015 – Decided

Before Judges Alvarez, Waugh, and Carroll.

On appeal from the New Jersey Civil Service 

Commission, Docket No. 2013-3251.

Lynsey A. Stehling argued the cause for 

appellant Probation Association of New 

Jersey (Law Offices of Daniel J. Zirrith 

LLC, attorneys; Daniel J. Zirrith, of 

counsel; Ms. Stehling, on the brief).

Todd A. Wigder, Deputy Attorney General, 

argued the cause for respondent New Jersey 

Civil Service Commission (John J. Hoffman, 

Acting Attorney General, attorney; Lewis A. 

Scheindlin, Assistant Attorney General, of 

counsel; Mr. Wigder, on the brief).

The opinion of the court was delivered by

WAUGH, J.A.D.

The Probation Association of New Jersey (Association) 

appeals the final administrative agency decision of the New 

Jersey Civil Service Commission (Commission) concerning the 

July 22, 2015

APPROVED FOR PUBLICATION

July 22, 2015

APPELLATE DIVISION
2 A-0056-13T2

manner in which the Administrative Office of the Courts (AOC) 

selects and appoints candidates for the titles of Probation 

Officer and Probation Officer, Bilingual in Spanish and English 

(Bilingual Probation Officer). We reverse and remand for 

further consideration consistent with this opinion.

I.

We discern the following facts and procedural history from 

the record on appeal. 

On December 5, 2011, pursuant to N.J.A.C. 4A:1-4.3, the AOC

requested the Commission to establish a one-year pilot program 

to replace competitive testing for the Probation Officer and 

Bilingual Probation Officer titles with an evaluation system.

1 

The AOC explained that the pilot program was necessary because 

"at least four vicinages [had] exhausted [their] current pool 

and several others [were] close to exhausting their pools" for 

the Bilingual Probation Officer title. The AOC made no such 

factual assertion with respect to the Probation Officer title. 

The proposed program would replace the traditional system 

of competitive testing that is generally used throughout the

State government with an evaluation program designed to focus on 

 

1 The AOC also sought to replace the four-month working test 

period provided by N.J.A.C. 4A:4-5.2(b)(2) with a Probation 

Officer Trainee title that would provide a full year of training 

and evaluation, but subsequently withdrew that request.
3 A-0056-13T2

a candidate's communication skills, personal motivation, 

interpersonal skills, analytical skills, reasoning ability, 

personal development, and time management skills. Candidates' 

credentials would be reviewed and scored based on education and

work experience. The cover letters and resumes would be 

evaluated and rated based on the number of errors in spelling, 

grammar, and punctuation. Candidates with the highest scoring 

resumes would be selected for a structured panel interview, be 

required to complete a timed writing sample, and be evaluated 

for promptness and neatness. Successful candidates would return 

for a second structured interview, after which selected 

finalists would receive offers of employment. The program would 

be administered by vicinage or a regional group of vicinages, as

appropriate. The AOC's Division of Equal Employment 

Opportunity/Affirmative Action would review the candidate pools 

for diversity, and preference for veterans would be taken into 

consideration. 

The purpose of the proposed system was to allow for "a more 

flexible process for recruitment and selection than the 

traditional civil service testing process provides." The AOC 

was particularly interested in oral examinations, which it 

believed to be "a critical element of the selection process" and 

which the Commission would not be able to administer because of 
4 A-0056-13T2

the large number of candidates. In addition, the AOC explained 

that "the flexibility of the proposed pilot program would allow 

vicinages the opportunity to proactively recruit before their 

candidate pool is empty," whereas the Commission only 

administers its examinations at set intervals. 

The proposal was opposed by the Association, which 

submitted opposition to the Commission. The Association argued 

that the proposal violated article VII, section 1, paragraph 2 

of the New Jersey Constitution, which requires public employees 

to be selected on the basis of "merit and fitness to be 

ascertained, as far as practicable, by examination, which, as 

far as practicable, shall be competitive." It further argued 

that the AOC had not established sufficient need for the change 

and that past instances of noncompetitive hiring had not been 

successful. Finally, the Association called for a fact-finding 

hearing in the Office of Administrative Law (OAL). The 

Association subsequently argued that any problem caused when 

hiring pools run low could be solved by interim, noncompetitive 

appointments pursuant to N.J.A.C. 4A:3-1.2.

On June 21, following further submissions by the parties 

and the AOC's acceptance of modifications suggested by the 

Commission's staff, the Commission issued a final administrative
5 A-0056-13T2

order approving the pilot program.

2 The year-long pilot program 

was originally to have been implemented on July 1, 2012, but the 

Commission subsequently delayed the implementation date to

November 1 at the AOC's request. 

In its decision, the Commission concluded that the program 

was consistent with N.J.A.C. 4A:3-1.2(c)(2), which allows a job 

title to be placed "in the noncompetitive division on an ongoing 

or interim basis" if the Commission determines "that it is 

appropriate to make permanent appointments to the title and . . 

. [c]ertification procedures based on ranked eligible lists have 

not or are not likely to meet the needs of appointing 

authorities due to such factors as salary, geographic location, 

recruitment problems, and working conditions." It explained: 

In this regard, the AOC has indicated that 

it has experienced problems maintaining a 

sufficient pool of qualified and interested 

candidates in all geographic locations 

during the duration of eligible lists 

resulting from competitive testing. Indeed, 

one of the primary goals of the pilot 

program is to address this difficulty by 

providing the [AOC] with a way in which to 

continuously recruit qualified applicants . 

. . with announcements directed to 

particular regions of the State on an asneeded basis.

 

2 The Association appealed that decision. That appeal was 

dismissed as moot after the Commission approved use of the 

noncompetitive process on an ongoing basis.
6 A-0056-13T2

The Commission found that the program would involve 

"structured recruitment and selection," which would focus on 

"six broad-based competencies for successful performance in the 

. . . titles," namely, communication, personal motivation, 

interpersonal skills, analysis and reasoning, self-development, 

and time management. "The competencies and assigned weights 

[were] consistent with a job analysis performed by the Division 

of Selection Services in 2009 for the affected titles." 

The program's success was to be evaluated by comparing the 

previous years' and the pilot program's appointment 

demographics, termination demographics, and discipline 

demographics. The timeliness of appointments would also be 

compared, "considering average recruitment time, average time 

prior to appointment, average turnaround time for bilingual test 

results, and average turnaround time for appointments." Lastly, 

managers and supervisors would be surveyed "regarding [the] 

quality, success, and commitment of [the] employees hired." 

The Commission explained that the major benefits of the 

program would be

the provision of greater flexibility in the 

recruitment and selection process for both 

the applicants and the AOC. In this regard, 

the process will allow a consistently 

refreshed pool of applicants to be 

considered for positions in specific 

geographic locations. This will provide 

more opportunities for individuals 
7 A-0056-13T2

interested in pursuing a career in this 

field as their application opportunities 

will not be limited to the set time frames 

within which the Commission announces and 

administers open competitive examinations 

for the titles, which may not necessarily 

coincide with time period of peak interest, 

such as college graduation. The AOC will 

likewise benefit from a fresh pool of 

applicants and less likelihood of the 

exhaustion of the candidate pool with 

interest in less populated or popular 

geographic areas of the State.

On May 21, 2013, less than seven months into the pilot 

program, the AOC applied for permanent reallocation of the 

Probation Officer and Bilingual Probation Officer titles from 

the Commission's competitive division to its noncompetitive 

division. In support of its application, the AOC reported on 

the implementation of the pilot program.

According to its report, the AOC developed, posted, and

distributed a statewide notice of vacancy permitting candidates 

to apply for positions in up to four vicinages. Resumes were 

assigned to appropriate vicinages for review and ranking under 

the uniform scoring system developed by the AOC with assistance 

from the Commission's staff. Candidate information was entered 

into a centralized database. 

The AOC then scheduled regional recruitment events. 

Candidates scoring five or better on their resume and all 

veterans were invited to attend. The candidates were scheduled 
8 A-0056-13T2

in groups of ten at hourly intervals. After check-in and an 

informational presentation, each candidate participated in a 

structured interview, completed an essay, and was then free to 

leave. 

During the structured interview, candidates were asked the 

same series of questions at each event. Panelists were provided 

with a response guide to ensure uniform, statewide scoring. The 

writing sample topic was the same at each event. There was also 

a scoring guide for the essays.

Candidates were assigned a final score based on their 

performance at the recruitment event. Seventy-five percent of 

the score was based on the structured interview, ten percent on 

the writing sample, five percent on promptness, and ten percent 

on attention to detail. Candidates scoring 60 or below were no 

longer considered for appointment. The remaining candidates

were then banded into five numerical categories3 for the purpose 

of creating candidate pools of three or more candidates. If 

there were fewer than three candidates in a band, candidates 

from the next lower band could be included to bring the pool up 

to three. Veterans scoring 61 or above received preference 

regardless of score. 

 

3 The categories were 91 to 100, 81 to 90, 71 to 80, 61 to 70, 

and below 60. 
9 A-0056-13T2

The AOC provided the Commission with the results of the 

pilot program, based on the evaluation criteria established in 

its June 21, 2012 decision. Of 2401 applicants, 523 were 

selected to attend one of the recruitment events, which were 

held in Burlington, Camden, Ocean, Passaic, and Somerset 

counties. The process resulted in forty-six appointments over a

six-month period, in contrast to eighty-three, fifty, and fortysix appointments in the previous three years respectively.

There was one termination of an appointee during the sixmonth period. In the previous three years, there had been four, 

one, and six terminations respectively. Appointees were 

disciplined twenty-eight times during the six-month evaluation 

period, while new appointees in the previous three years had 

been disciplined seventy-two, fifty, and fifty times 

respectively. 

During the pilot program, the AOC averaged 123 days, or 

approximately three months, from recruitment event to 

appointment. Over two-thirds of the managers and supervisors 

surveyed reported that the appointees were of high quality, with 

highly satisfactory performance and demonstrated commitment to 

succeed. No comparable surveys were provided for the prior 

three years during which appointments were made through the 

traditional competitive process.
10 A-0056-13T2

The Association continued to express opposition to the 

program and requested the Commission to defer its decision 

regarding the AOC's request that the program be made permanent 

pending resolution of its July 2012 appeal of the pilot program. 

Nevertheless, on July 18, the Commission issued a final 

administrative decision granting the AOC's request and 

implementing the noncompetitive program on a permanent basis. 

In explaining its decision, the Commission summarized the 

positions of the parties and noted that the Division of 

Classification and Personnel Management (Division) had

recommended approval. The Division had concluded that adoption 

of the program on a permanent basis would

provide the AOC with the flexibility needed 

to more efficiently and quickly meet hiring 

responsibilities. Further, it [found] that 

the documentation presented by the AOC

demonstrates a well-planned, fair, and 

equitable recruitment and selection process. 

Additionally, as set forth in N.J.A.C. 4A:3-

1.2(c), certification procedures will not 

likely meet the needs of the AOC. [The 

Division] also note[d] that no eligible 

lists exist for the subject titles.

Citing N.J.A.C. 4A:3-1.2, the Commission concluded that

ample reasons exist for the reallocation of 

the proposed titles to the noncompetitive 

division of the career service. It is clear 

that reallocation will provide the AOC with 

the flexibility needed to more efficiently 

and quickly meet hiring responsibilities. 

Certification procedures based on ranked 

eligible lists will not meet the AOC's needs 
11 A-0056-13T2

for immediate recruitment. Further, the AOC

submits sufficient documentation showing the 

success of the pilot program, which 

justifies its request to reallocate the

subject titles to the noncompetitive 

division of the career service.

This appeal followed.

II.

On appeal, the Association makes the following substantive 

arguments:

POINT II: THE COMMISSION'S RULING APPROVING 

THE PILOT PROGRAM WAS ARBITRARY, CAPRICIOUS,

AND UNREASONABLE BECAUSE IT ALLOWS THE 

VIOLATION OF THE NEW JERSEY CONSTITUTION AND 

TITLE 4A AND 11A

POINT III: THE COMMISSION'S RULING APPROVING 

THE PILOT PROGRAM WAS ARBITRARY, CAPRICIOUS, 

AND UNREASONABLE BECAUSE IT ALLOWS THE 

REPLACEMENT OF THE CURRENT TESTING PROCESS 

FOR PROBATION OFFICERS THROUGH OPEN 

COMPETITIVE PROCESS, WHICH HAS BEEN ENTIRELY 

SUCCESSFUL, WITHOUT PROPER GROUNDS FOR DOING 

SO

POINT IV: THE COMMISSION'S RULING APPROVING 

THE PILOT PROGRAM WAS ARBITRARY, CAPRICIOUS, 

AND UNREASONABLE BECAUSE IT IGNORES THE FACT 

THAT PRIOR INSTANCES OF NON-COMPETITIVE 

TESTING, SUCH AS SELECTION FOR MENTAL HEALTH 

PROBATION OFFICERS, HAVE RESULTED IN A HIGH 

PERCENTAGE OF SELECTED CANDIDATES WHO WERE 

DISCIPLINED OR TERMINATE[D]

POINT V: THE COMMISSION'S RULING APPROVING 

THE PILOT PROGRAM WAS ARBITRARY, CAPRICIOUS, 

AND UNREASONABLE BECAUSE THIS MATTER SHOULD 

HAVE BEEN PROPERLY HEARD BEFORE THE OFFICE 

OF ADMINISTRATIVE LAW DUE TO THE SIGNIFICANT 

CONSTITUTIONAL AND STATUTORY VIOLATIONS, AS 

WELL AS TO ENSURE THAT THE COMPETITIVE CIVIL 
12 A-0056-13T2

SERVICE TESTING IS NOT ABOLISHED FOR ALL 

TITLES

Our scope of review of an administrative agency's final 

determination is limited. In re Carter, 191 N.J. 474, 482 

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

the agency's exercise of its statutorily delegated 

responsibilities. City of Newark v. Natural Res. Council, 82 

N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. 

Ed. 2d 245 (1980). The burden of showing that the agency's 

action was arbitrary, unreasonable, or capricious rests upon the 

appellant. Barone v. Dep't of Human Servs., 210 N.J. Super.

276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

The 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); see also Circus Liquors, Inc. v. Governing 

Body of Middletown Twp., 199 N.J. 1, 9-10 (2009).

Absent arbitrary, unreasonable, or capricious action, or a 

lack of support in the record, "[a]n administrative agency's 

final quasi-judicial decision will be sustained." In re 

Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of 
13 A-0056-13T2

Civil Serv., 39 N.J. 556, 562 (1963)). The court "may not 

vacate an agency determination because of doubts as to its 

wisdom or because the record may support more than one result," 

but is "obliged to give due deference to the view of those 

charged with the responsibility of implementing legislative 

programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 

356 N.J. Super. 363, 372 (App. Div.) (citing Brady v. Bd. of 

Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281 

(2003). Nevertheless, we may not simply rubber-stamp an 

agency's decision. In re Taylor, 158 N.J. 644, 657 (1999).

Although an appellate court is "in no way bound by the 

agency's interpretation of a statute or its determination of a 

strictly legal issue," Mayflower Sec. Co. v. Bureau of Sec., 64 

N.J. 85, 93 (1973), if substantial evidence supports the 

agency's decision, "a court may not substitute its own judgment 

for the agency's even though the court might have reached a 

different result," Greenwood v. State Police Training Ctr., 127 

N.J. 500, 513 (1992) (citing Clowes v. Terminix Int'l, 109 N.J.

575, 587 (1988)).

In 1986, the Legislature passed the current Civil Service 

Act, repealing Title 11 and establishing Title 11A of the New 

Jersey Statutes. L. 1986, c. 112; Senate Revenue, Finance and 

Appropriations Committee, Statement to S. 1567, A. 2194, and S. 
14 A-0056-13T2

1829, (Sept. 8, 1986). In doing so, the Legislature made the 

following findings and declarations:

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;

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.

[L. 1986, c. 112, § 11A:1-2.]

Title 11A gives the Commission the power to "[a]dopt and enforce 

rules to carry out [the Act] and to effectively implement a 

comprehensive personnel management system." N.J.S.A. 11A:2-

6(d). 
15 A-0056-13T2

It is important to note for the purposes of this appeal 

that any waiver of traditional competitive examinations must, as 

a constitutional matter, be based on their impracticality. In 

In re Foglio, 207 N.J. 38, 40 (2011), the Supreme Court observed 

that

[t]he New Jersey Constitution prescribes 

that Civil Service appointments "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." N.J. Const. art. 

VII, § 1, ¶ 2. The Civil Service Act, 

N.J.S.A. 11A:1-1 to 12.6, and the 

regulations promulgated thereunder, N.J.A.C.

4:4-1.1 to 7.12, in turn, implement those 

merit and fitness principles.

As we explained in Bayonne v. Dougherty, 59 N.J. Super. 288, 

295-96 (App. Div. 1960) (citations omitted), appeal dismissed, 

34 N.J. 240 (1961), 

[t]he Constitutional Convention of 1947 

merely wrote into the state charter what had 

for years been the keystone of New Jersey's 

personnel system. The Legislature has 

through the years, by the careful process of 

amendment and supplementation of the Civil 

Service Act, adopted such provisions as 

policy and experience indicated were 

necessary, all to the end of strengthening 

the merit system. We will not read the 

cited section of the Constitution to mean 

any more than it says, nor carry the 

legislative intention beyond what is 

expressly or by clear implication called for 

by the statutes.

 
16 A-0056-13T2

N.J.S.A. 11A:3-2 provides that "[t]he career service shall 

have two divisions, the competitive division and the 

noncompetitive division." In establishing the noncompetitive 

division, the Legislature made the following findings:

a. the importance of fairness and 

impartiality in State employment is 

recognized in Article VII, Section I, 

paragraph 2 of the New Jersey Constitution 

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. 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 
17 A-0056-13T2

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 

noncompetitive division of the career 

service during the final six months of the 

Governor's term in office.

[N.J.S.A. 11A:3-2.1 (emphasis added).]

See also Senate State Government Committee, Statement to S. 2234

(Dec. 6, 1993) ("The purpose of the noncompetitive division is 

to enable the State to fill lower-level jobs which do not 

require significant education or training and for which a 

competitive examination cannot easily be designed."). 

We do not hold that only low-level positions may be 

assigned to the noncompetitive division, but it is instructive 

to note the purpose for which the noncompetitive division was 

created and the Legislature's concern that it not be abused. 

There may well be positions that require knowledge that is not 

readily evaluated through competitive testing. See Benson v. 

McCaul, 702 N.Y.S.2d 164, 166-67 (App. Div. 2000) (finding 

competitive examination for Risk Management positions to be 

impracticable "due to the dynamic nature of the [financial] 
18 A-0056-13T2

industry which rendered an examination virtually obsolete before 

completion of the competitive process"). And we can envision 

other circumstances, not involving low-level positions, in which 

a transfer to the noncompetitive division could be appropriate.

N.J.S.A. 11A:3-2 authorizes the Commission to "assign and 

reassign such titles to each division and [to] provide for 

movement, including promotion, of employees from one division to 

the other." N.J.S.A. 11A:3-1 authorizes the Commission to 

"assign and reassign titles among the career service." The 

Commission's regulations outline the parameters of how it 

exercises that authority.

 N.J.A.C. 4A:3-1.2, the regulation at issue in this case,

provides as follows:

(a) The Civil Service Commission shall 

allocate and reallocate career service 

titles between the competitive and 

noncompetitive divisions.

(b) A career service job title in the 

competitive division is subject to the 

competitive examination procedures of 

N.J.A.C. 4A:4-2, except as provided in 

N.J.A.C. 4A:3-3.2A.

(c) A job title may be placed in the 

noncompetitive division on an ongoing or 

interim basis when it is determined by the 

Civil Service Commission that it is 

appropriate to make permanent appointments 

to the title and one or more of the 

following criteria are met.
19 A-0056-13T2

1. Competitive testing is not 

practicable due to the nature of the 

knowledge, skills, and abilities 

associated with the job;

2. Certification procedures based on 

ranked eligible lists have not or are 

not likely to meet the needs of 

appointing authorities due to such 

factors as salary, geographic location, 

recruitment problems, and working 

conditions; or

3. There is a need for immediate 

appointments arising from a new 

legislative program or major agency 

reorganization.

(d) All appointees to noncompetitive titles 

shall meet the minimum requirements set 

forth in the job specification and 

satisfactorily complete a working test 

period.

(e) Prior to any reallocation from the 

competitive to noncompetitive divisions, 

whether on an ongoing or interim basis, an 

administrative review shall be conducted and 

notice of the proposed reallocation shall be 

sent to affected appointing authorities and 

negotiations representatives. The notice 

shall designate the period of time, which in 

no event shall be less than 20 days, during 

which written comment may be submitted, and 

may provide for a public hearing.

1. Data, reports, analyses, and other 

information utilized in the 

determination shall constitute the 

administrative record, and shall be 

available for review by affected 

employees, appointing authorities, and 

negotiations representatives.

2. After the comment period and the 

public hearing, if any, the Civil 
20 A-0056-13T2

Service Commission shall issue a final 

administrative decision containing 

findings and conclusions with respect 

to the proposed reallocation, based 

upon the administrative record and any 

comment received, and implementation 

procedures.

(f) When a job title is reallocated from 

the competitive to noncompetitive divisions, 

the Commission's decision shall specify an 

effective date for reallocation.

1. Permanent employees in that title 

as of the effective date shall retain 

their permanent status in the 

noncompetitive division.

2. Probationary employees in that 

title as of the effective date shall 

continue serving their working test 

periods and, upon successful 

completion, attain permanent status in 

the noncompetitive division.

3. Provisional employees who remain in 

that title as of the effective date 

shall receive regular appointments and 

begin serving their working test 

periods on the effective date.

(g) If a title is designated noncompetitive 

on an interim basis, at the end of the 

interim noncompetitive period, which shall 

be no greater than one year, the job title 

shall be redesignated as competitive. 

Individuals appointed during the interim 

noncompetitive period shall, upon successful 

completion of their working test periods, 

attain permanent status in the competitive 

division.

That regulation was adopted in July 1988. 20 N.J.R. 2255(b) 

(Sept. 6, 1988). We note that, in response to concerns about 
21 A-0056-13T2

the nature of the administrative process preceding a 

reallocation from the competitive to the noncompetitive 

division, the agency responded that N.J.A.C. 4A:3-1.2(e) is 

supposed to "provide[] for a thorough administrative review 

process." 20 N.J.R. 2256(b) (Sept. 6, 1988). 

In reaching its decision in this case, the Commission 

relied on N.J.A.C. 4A:3-1.2(c)(2), which allows transfers to the 

noncompetitive division when "[c]ertification procedures based 

on ranked eligible lists [would] not or are not likely to meet 

the needs of appointing authorities." Having reviewed the 

record before us, we conclude that it contains very few pieces 

of objective evidence, such as the "[d]ata, reports, analyses, 

and other information" contemplated by N.J.A.C. 4A:3-1.2(e)(1),

demonstrating that the AOC was experiencing significant 

recruitment problems for the Probation Officer and Bilingual 

Probation Officer titles at the time it appealed. In support of 

its application, the AOC cited only one, not overly specific 

problem, which was that "at least four vicinages [had] exhausted 

[their] current pool and several others [were] close to 

exhausting their pools for the Probation Officer Bilingual 

title." The record does not contain more specific factual 

information concerning the parameters of that problem, such as 

how often it occurs and whether court operations had been 
22 A-0056-13T2

adversely affected. In addition, a shortage in the pool for the 

Bilingual Probation Officers would not, by itself, necessitate a 

reallocation of the Probation Officer title to the 

noncompetitive division, even if it were to justify the 

reallocation of Bilingual Probation Officers. 

The Commission's decision quotes the Division's comment 

that there were "no eligible lists for the subject titles" at 

the time the decision to make the program permanent was made. 

It is silent, however, as to whether the lack of lists was 

related to an operational problem at the Commission, or merely 

the cessation of developing such lists while the pilot program 

was taking place and in anticipation that it would be made 

permanent. Certainly, the AOC was able to identify many 

candidates for the positions during the pilot project. We find 

it unlikely that the competitive process suddenly failed to 

produce eligible lists, inasmuch as the AOC has been relying on 

it for more than fifty years. The fact that the Commission was 

simply not ready to resume the usual procedure at the end of the 

pilot program is not an acceptable reason for making the program 

permanent. 

The Commission points to the fact that the reallocation 

"[would] provide the AOC with the flexibility needed to more 

efficiently and quickly meet hiring responsibilities." However, 
23 A-0056-13T2

the need for flexibility in hiring is not listed as one of the 

circumstances that would permit the Commission to place a job 

title in the noncompetitive division. N.J.A.C. 4A:3-1.2(c)(1) 

to -(3). Instead, N.J.A.C. 4A:3-1.2 allows for limited, interim 

noncompetitive appointments in the event that there is an 

immediate need for additional personnel.

The Association argues that the Commission should have held 

a hearing. N.J.S.A. 11A:3-6 only requires the Commission to 

hold a public hearing prior to transferring a title from the 

career service to the unclassified service. N.J.A.C. 4A:3-

1.2(e), however, vests the Commission with the discretion to 

conduct a public hearing "[p]rior to any reallocation from the 

competitive to noncompetitive divisions." Because it does not 

mandate such a hearing, we cannot conclude that one is required. 

Nevertheless, in a fact-sensitive case such as this one appears 

to be, the Commission should seriously consider a transfer to 

the OAL for a hearing. See Commc'ns Workers of Am. v. N.J. 

Dep't of Pers., 154 N.J. 121, 131-32 (1998).

Finally, we return to the constitutional dimension of this 

case, which governs its outcome over and above the statutory and 

regulatory requirements discussed above. Because our 

Constitution requires that public service appointments be made 

by competitive examination "as far as practicable," Foglio, 
24 A-0056-13T2

supra, 207 N.J. at 40, consideration must be given to whether 

the AOC has demonstrated that it is impracticable for it to 

continue filling Probation Officer and Bilingual Probation 

Officer positions through open, competitive examinations. That 

is a question that must be considered separately as to each

title. That the noncompetitive process is more flexible does 

not, in our view, mean that the competitive process is not 

practicable within the meaning of the constitutional 

requirement. We see nothing in the Commission's decision to 

suggest that it considered the constitutional issue, which was 

raised by the Association in its opposition.

Because the factual record underlying the Commission's 

decision is overly sparse, we conclude that there are 

insufficient facts to support the decision to grant the transfer 

of the Probation Officer and Bilingual Probation Officer titles 

to the noncompetitive division, rendering it arbitrary and 

capricious. In addition, and more importantly, the Commission's 

failure even to consider the issue of whether it is 

impracticable for the AOC to continue filling Probation Officer 

and Bilingual Probation Officer positions through open, 

competitive examinations renders the decision legally defective.

Consequently, we reverse the order on appeal and remand for 

further consideration by the Commission, consistent with this 
25 A-0056-13T2

opinion. The Commission's reconsideration must include the

development of the type of factual record required for a

meaningful evaluation of the AOC's proposal under the applicable 

statutory and regulatory provisions and, again most importantly, 

the provisions of article VII, section 1, paragraph 2 of the New 

Jersey Constitution. 

Reversed and remanded.