N.J. SUPERIOR COURT, APPELLATE DIVISION

In the Matter of Carluccio

LABOR AND EMPLOYMENT — Public Employees

New Jersey Law Journal

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In the Matter of Carluccio, A-5219-09T1; Appellate Division; opinion by Messano, P.J.A.D.; decided and approved for publication May 25, 2012. Before Judges Messano, Espinosa and Kennedy. On appeal from the Civil Service Commission, No. 2010-853. DDS No. 25-2-6407 [25 pp.]

Appellant was disqualified from a list of eligible candidates for the position of safety specialist trainee with the Motor Vehicle Commission (MVC) because of a conviction for attempted aggravated assault. Appellant appealed to the Civil Service Commission and argued, among other things, that the Rehabilitated Convicted Offender Act (the RCOA) controlled, and a certificate issued by the State Parole Board pursuant to the RCOA presumptively demonstrated his rehabilitation and eligibility for employment.

The Civil Service Commission denied appellant's appeal, concluding that the position of safety specialist trainee permitted "access to sensitive information that could threaten the public health, welfare and safety" and was not "public employment" subject to the provisions of the RCOA.

Held: Based on recent amendments to the RCOA, and notwithstanding any law to the contrary, a certificate issued pursuant to N.J.S.A. 2A:168A-8 is the legislatively chosen mechanism to relieve disabilities, forfeitures or bars to public employment arising from certain prior criminal convictions. The commission failed to consider the effect of the Parole Board's determination and the pre-eminent role the Legislature delegated to the Parole Board under the RCOA.

In enacting the RCOA, the Legislature declared that the public interest is advanced "by removing impediments and restrictions upon convicted offenders' ability to obtain employment." The Legislature significantly broadened the reach of the RCOA by enacting N.J.S.A. 2A:168A-7 to -16. In pertinent part, the amendments provided that notwithstanding any law to the contrary, a certificate may be issued in accordance with the provisions of this act that suspends certain disabilities, forfeitures or bars to employment or professional licensure or certification that apply to persons convicted of criminal offenses. Further, a certificate issued pursuant to N.J.S.A. 2A:162A-7 is presumptive evidence of the subject's rehabilitation when considered in regard to public employment.

In this case, the Parole Board's certificate, furnished in support of Carluccio's motion for reconsideration, presumptively demonstrated his rehabilitation for purposes of seeking public employment and relieved him of any "disabilities, forfeitures [and] bars" resulting from his conviction. However, that does not end the inquiry. The CSC determined that the position of safety specialist trainee was not "public employment," and, therefore, the RCOA did not apply.

The Legislature carefully defined "public employment" and excluded certain positions. Therefore, the beneficial effects of a certificate issued pursuant to N.J.S.A. 2A:162A-8 do not inure to public employment opportunities "in law enforcement" or "any position that has access to sensitive information that could threaten the public health, welfare or safety."

In deciding Carluccio's appeal, the CSC had the right and the duty to interpret and apply the RCOA to the dispute before it. However, administrative actions cannot alter the terms of any statute, nor can they violate legislative policies. In considering whether Carluccio's potential employment as a safety specialist was "public employment" under the RCOA, the CSC was required to recognize that the Legislature delegated to the Parole Board implementation of the amendments to the RCOA. The Parole Board's interpretation of the statute was entitled to some deference.

In issuing the certificate, the Parole Board concluded that notwithstanding any law to the contrary, Carluccio was relieved of disabilities, forfeitures or bars to public employment occasioned by his criminal conviction. By specifically referencing the job title in question, the Parole Board apparently concluded the position of safety specialist was "public employment." Further, the certificate was presumptive evidence of Carluccio's rehabilitation, which may or may not be overcome in any particular case.

Because the CSC did not properly consider the effect of the amendments to the RCOA and the Parole Board's issuance of the certificate in reaching its decision, the appellate panel remands the matter for further proceedings consistent with this opinion. The appellate record does not contain the job description for the position of safety specialist trainee. On remand, the CSC may permit the MVC to submit the entire job description to the Parole Board for consideration and determination as to whether the position of safety specialist MVC provides "access to sensitive information that could threaten the public health, welfare, or safety."

For appellant Martin Carluccio — Arthur Russell (Russell and Stuart Ball on the brief). For respondent Civil Service Commission — Pamela N. Ullman, Deputy Attorney General (Paula T. Dow, Attorney General; Lewis A. Scheindlin of counsel).

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