In the Matter of Johnson, A-39 September Term 2011; Supreme Court; opinion by Cuff, P.J.A.D., temporarily assigned; decided September 10, 2013. On certification to the Appellate Division. DDS No. 25-1-1281 [31 pp.]

The Cape May County prosecutor appointed John Johnson as prosecutor's agent, an unclassified position, in September 1984. At that time, N.J.S.A. 11:4-4(s) permitted the Cape May County prosecutor to employ two unclassified agents.

Following adoption of the Civil Service Act, N.J.S.A. 11A:1-1 to 11-6, the treatment and classification of prosecutor's agents remained unchanged. In 1989, the Merit System Board recognized that the title should remain in the unclassified service. It also determined the number of agents could not exceed that statutorily authorized.

In 2004, in response to a complaint regarding the practice of assigning the title to more than the number statutorily authorized, the board confirmed the prosecutor's authority to appoint personnel in excess of statutory limits. However, it ordered a review of the duties being performed by all agents hired in excess of the limitations prescribed in the 1989 order. The 2004 order did not affect Cape May County. In 2006, the Department of Personnel advised all county prosecutors that it would be reviewing the duties performed by incumbent prosecutor's agents to avoid impingement on career service titles. The memo included a new title specification for the position that would apply to appointments made on or after Oct. 19, 2006. It expressly assured that the new specification would not apply to then-current employees.

However, in April 2009, Johnson was advised that his job responsibilities did not meet the new specification for prosecutor's agent but did match those of the classified position of property clerk. As a result, the commission provisionally appointed him to that classified position.

The county appealed to the commission, contending that Johnson's position should not have been reclassified. The commission upheld the reclassification. The Appellate Division affirmed, recognizing the commission's authority to review and reclassify positions and rejecting the contention that equitable estoppel barred the reclassification.

The county argues that it is inequitable to reclassify Johnson's position and that the Appellate Division inappropriately discounted its equitable-estoppel argument.

Held: Under the totality of the circumstances, including the audit that did not show a thorough understanding of Johnson's duties and the history of the commission's treatment of the position of prosecutor's agent, the reclassification of Johnson's position to the classified service was an arbitrary and capricious agency action that was manifestly unjust. He is entitled to restoration to his prior position of prosecutor's agent.

The court observes that the commission is charged with the assignment of titles among the career, the senior executive, and the unclassified services for positions in state service and political subdivisions and has broad reclassification powers. Administrative regulations set forth its power to reclassify existing positions through "job analysis" and provide that all positions shall be subject to audit by the DOP to ensure accurate classification.

Courts will not interfere with reclassification decisions in the absence of an affirmative showing of arbitrariness. However, the ordinary deference to the commission's expertise and discretion does not extend to a reclassification decision that does not show a thorough understanding of the incumbent's duties or consultation with relevant employers. Also, the court need not defer to an administrative decision that expressly contradicts prior assurances provided to prosecutors and their incumbent prosecutor's agents.

The county and the prosecutor concede that the commission's description of property clerk includes some of the tasks performed by Johnson, but they argue it ignores a significant portion of his day-to-day responsibilities. Accordingly, they insist that the analysis of his job duties is so flawed that it does not warrant the presumption of validity normally afforded such decisions. The court agrees.

It says, considered as a whole, Johnson performs many functions beyond simply cataloging and organizing for safe-keeping property and valuables consigned or confiscated by a law enforcement agency. He is an integral part of the prosecutorial team, assuring not only the preservation of evidence but also the maintenance of the chain of custody of physical evidence. He trains members of other law enforcement agencies and, most important, he is available to perform any number of critical tasks required by the prosecutor, at the prosecutor's discretion.

Further, the court says the commission's decision is more than a reclassification decision. By relegating Johnson to the classified service, the commission effectively removed him from the position of confidential aide to the prosecutor, eliminated one of the prosecutor's agent positions, and barred the prosecutor from assigning any tasks to Johnson that are considered "out-of-title." Although an employer that participates in the civil service system may not assign tasks that are assigned to a classified employee to an unclassified employee, the commission must acknowledge the sensitive nature of the prosecutor's duties and the need to use his unclassified employees to meet the investigational and prosecutorial needs of the position.

When the commission undertakes an audit, it must also account for all of the tasks assigned to an employee. When it picks and chooses some of the tasks and ignores or mischaracterizes others, the decision takes on attributes of an arbitrary and unreasonable action. The arbitrariness and unreasonableness of the commission's action involving Johnson is made more troubling by the historical treatment of prosecutor's agents by the commission since at least 1989.

Although equitable estoppel is rarely invoked against the government, equitable considerations are relevant to assessing governmental conduct. When an agency misrepresents the effect of a determination under circumstances calculated to induce reliance by reasonable persons to their detriment, the agency may be estopped to prevent a manifest injustice.

Here, two communications — a final order of the board and a DOP notice to all prosecutors — represented that incumbent prosecutor's agents appointed before 1989 could continue to occupy the unclassified position of prosecutor's agent and perform whatever duties the prosecutor assigns. They were not subject to the new title specification and would not be subject to an audit. Both the prosecutor and Johnson reasonably relied on the 2006 communication.

The court concludes that reclassification of Johnson's position to the classified service was an arbitrary and capricious agency action that was manifestly unjust under these unusual circumstances. He is entitled to restoration to his prior position of prosecutor's agent.

Chief Justice Rabner, Justices LaVecchia, Albin, Hoens and Patterson and Judge Rodriguez, temporarily assigned, join in Judge Cuff's opinion.

For appellant Cape May County — James B. Arsenault Jr., Assistant County Counsel (Barbara L. Bakley-Marino, County Counsel). For respondent Civil Service Commission — Todd A. Wigder, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General). For amicus curiae Cape May County Prosecutor — J. Vincent Molitor, Assistant Prosecutor (Robert L. Taylor, Prosecutor).