New Jersey cannot promote civil service workers through a controversial process that does not include a competitive exam, the state Supreme Court ruled yesterday in a decision that also affirmed the Legislature can invalidate certain actions of the executive branch.
Hailed by both union and legislative leaders,was the first regarding the exercising of lawmakers’ authority under the legislative-review clause of the state constitution. The court, with some dissension, set guidelines the Legislature must follow to be able to override an action by a state agency. In this case, a majority of justices found that lawmakers were proper in their voting to invalidate the Civil Service Commission’s adoption of a “job banding” rule that allowed for advancement without the usual civil service exam.
“With the New Jersey Supreme Court today vacating Governor Christie’s ridiculous, infamous ‘job-banding’ rule, we finally close the door on another terrible chapter of Christie’s tenure,” said Hetty Rosenstein, director of the New Jersey Communications Workers of America, which had challenged the rule in court. She noted that the Appellate Division decided in late 2016 that job banding ran counter to state law, “which requires that promotions be made based upon ‘merit and fitness’ through competitive examination where practicable and vacated the rule, but the Christie Administration appealed ... So ends yet another wasteful and sleazy Christie scheme.”
The job banding rule was an effort by the previous administration to weaken civil service protections. It pulled a number of civil service titles into “bands” and allowed for workers to be promoted within a band without taking a civil service exam. Rosenstein said it “permitted management to subjectively declare that hand-picked employees had achieved ‘competencies’ and could be ‘advanced’ through that range at management’s whims and wishes.”
After the commission proposed the rule in 2013, the Legislature for the first time invoked a constitutional power allowing it to invalidate any rule adopted by a state agency. The power was given to the Legislature in a 1992 constitutional amendment, which also outlined a procedure lawmakers must follow in seeking to invalidate a rule.
The 1992 amendment, known as the legislative review clause, culminated a 15-year effort by lawmakers to gain some review of executive actions and was placed on the ballot by then-veto proof Republican majorities in both houses in response to then-Gov. Jim Florio’s much-hated $2.8 billion tax package as a way to check the power of the executive branch.
The Legislature voted several times to declare the job banding rule invalid and each time, under the procedure outlined in the legislative review clause, the CSC amended the rule and re-proposed it. Finally, both houses passed a resolution in December 2014 stating that the job banding rule continued to violate the Legislature’s intent and deeming future amendments the commission might make to the rule “null and void.” Two months later, the commission’s chairman disagreed, saying the Legislature had not acted appropriately, and declared the rule to be consistent with the state Civil Service Act and the constitution. It ignored the Legislature’s action and approved the job banding of titles by the Office of Information Technology and the Department of Transportation.
In its decision, the Supreme Court agreed with the Appellate Division’s finding that job banding violates state law and that the Legislature properly used its authority to invalidate the rule.
Senate President Stephen Sweeney (D-Gloucester) praised the decision as a win both for public workers and for the Legislature.
“The Supreme Court’s decision … is significant for the rights of workers, but it is also a decision with farther reaching constitutional implications,” Sweeney said in a statement. “The ruling reaffirms the balance of power that is vital to democracy and it reinforces the basic principle that the laws of New Jersey must be honored by the executive branch of government. It demonstrates once again that departments and agencies cannot ignore or invalidate the Legislature’s intent.”
The opinion, written by Justice Anne Patterson, validated the Legislature’s power to see that its intentions are not overruled by the executive branch, but it also placed future conditions on the way lawmakers exercise that power “to harmonize the Legislative Review Clause with our Constitution’s separation of powers provision.”
Those conditions are:
The Legislature must follow the procedures written into the clause regarding the timing of its actions and giving notice to the governor and head of the agency of its vote;
The Legislature’s assertion that a rule or regulation is inconsistent with legislative intent must be based on the language of the statute the rule would implement;
The resolution declaring a rule contrary to legislative intent cannot violate any other provision of the state or U.S. constitutions.
Patterson wrote in the majority opinion that putting conditions on the Legislature’s ability to invalidate regulations, including a potential judicial review, is proper.
“Were we to presume that any legislative invocation of the Legislative Review Clause is correct, we would risk abrogating executive rulemaking authority,” she wrote. “When the Legislature and Executive dispute the parameters of their constitutional powers, the separation of powers doctrine mandates vigilant judicial review.”
“Through the Legislative Review Clause, the Legislature gets its say about what its words in an enabling statute were intended to authorize an administrative agency to do when the agency exercises its delegated rulemaking authority,” wrote LaVecchia. “The Legislature has had its power augmented. It has now new means to redirect an Executive Branch agency about the meaning of its statutory language, and what that language intended to authorize the agency to do.”
In a second dissenting opinion, Justice Lee Solomon conversely agreed with Patterson’s strict standard of review of legislative intent, but found that the majority of the court misinterpreted that in this case and should not have allowed the Legislature to invalidate the job banding rule.
“Nothing in the Job Banding Rule conflicts with the legislative intent of the CSA (Civil Service Act) as expressed in its language” and the CSA gives the commission the ability “to consolidate titles and to group positions within a title,” Solomon wrote in an opinion joined by Chief Justice Stuart Rabner and Faustino Fernandez-Vina.
“The majority’s analysis thus threatens the constitutional balance of power among New Jersey’s co-equal branches of government and impermissibly expands the power granted to the Legislature by the voters when they approved the Clause,” Solomon wrote.
While splitting over two different parts of the ruling, a majority of the court agreed with Patterson that the job banding rule did violate state law and that a judicial review of the Legislature’s invalidation of a rule should rely solely on the language of the statute in question.
A spokesman for the state Attorney General’s Office, which represented the Civil Service Commission in the matter, said the office had no immediate comment.