IN THE MATTER OF GLENN CRANE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0413-04T30413-04T3

IN THE MATTER OF

GLENN CRANE,

CITY OF NEWARK.

_______________________________________________________

 

Argued January 25, 2006 - Decided February 17, 2006

Before Judges Wecker and Graves.

On appeal from a Final Agency Decision of the

New Jersey Department of Personnel, Merit

System Board, DOP Docket No. 2004-4104.

David N. Gambert, Assistant Corporate Counsel,

argued the cause for appellant City of Newark

(JoAnne Y. Watson, Corporation Counsel, attorney;

Mr. Gambert, of counsel and on the brief).

Paul L. Kleinbaum argued the cause for respondent

Glenn Crane (Zazzali, Fagella, Nowak, Kleinbaum

& Friedman, attorneys; Mr. Kleinbaum, of

counsel; Colin M. Lynch, on the brief).

Nancy Kaplen, Acting Attorney General, attorney

for respondent Merit System Board (Pamela N.

Ullman, Deputy Attorney General, on the

statement in lieu of brief).

PER CURIAM

The City of Newark (Newark) appeals from a final administrative decision of the Merit System Board (the Board), issued August 12, 2004. That decision granted the request of Glenn Crane for permanent status as a Chief Fire Alarm Operator. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Crane began his employment as a member of the Newark Fire Department on September 10, 1982. While working as a fire alarm operator, Crane took and passed a promotional examination for the rank of Chief Fire Alarm Operator, and his name appeared on the resulting eligible list, which was promulgated on March 14, 1991, and expired on March 13, 1995. On August 15, 1994, Stanley Kossup, the Fire Department Director advised Crane as follows:

You are herewith notified that in accordance with New Jersey State Department Eligible Promotional List PM3580M, and by action of the undersigned, you will be promoted to the rank of Chief Fire Alarm Operator in the Newark Fire Department, effective as of August 22, 1994.

A promotional ceremony will be held on Monday, August 22, 1994, 1000 hours at the Newark Fire Department Training Academy, 34 Jersey Street, Newark, New Jersey, at which time you will be sworn into the rank of Chief Fire Alarm Operator.

On August 22, 1994, Crane signed an oath of office in which he swore that he would "faithfully, impartially and justly perform all the duties of the office of Chief Fire Alarm Operator . . . ."

Unbeknownst to Crane, however, his appointment to Chief Fire Alarm Operator on August 22, 1994, was reported to the Department of Personnel (DOP) as provisional pending certification of the Chief Fire Alarm Operator eligible list. The eligible list, which included Crane and two other individuals, was certified on February 3, 1995, but the list was deemed incomplete when one of the candidates retired, and Newark declined to make a permanent appointment.

Following his appointment on August 22, 1994, Crane served as Chief Fire Alarm Operator for a number of years, but on June 1, 2004, Fire Director Lowell Jones advised the DOP that "Provisional Chief Fire Alarm Operator Glenn Crane . . . will be returning to his permanent Civil Service Title of Fire Alarm Operator effective May 28, 2004." Crane appealed Newark's decision to return him to his prior permanent title of Fire Alarm Operator to the Board.

In a certification to the Board, Kossup explained Crane's status as follows:

From that date, [August 22, 1994], both I and the City considered Glenn Crane to be duly promoted to the permanent position of Chief Fire Alarm Operator and treated him with all of the consideration to which that rank is entitled. He received all salary and benefits for the rank of Chief Fire Alarm Operator. At no time was I ever advised that his promotion was not permanent in accordance with the rules and regulations of the Department of Personnel. In all of my contact with the Fire Department and the City, Glenn Crane was, as far as we were concerned, duly promoted to the rank of Chief Fire Alarm Operator.

I believe it would be a grave disservice to Glenn Crane if the City fails to honor his promotion to Chief Fire Alarm Operator. As far as I was concerned, the Fire Department took all the steps necessary to ensure that Glenn Crane's promotion became effective on August 22, 1994.

On August 12, 2004, the Board rendered a final decision, which included the following findings and conclusions:

In the instant matter, . . . there is evidence in the record that the appellant was given misleading information regarding the status of his employment. Specifically, when the appellant was appointed to the title of Chief Fire Alarm Operator on August 22, 1994, Kossup informed him that his appointment was made "in accordance with New Jersey State Department Eligible Promotional List PM3580M," thereby conveying the impression that the appellant was being permanently appointed from this list. While Kossup later signed the Request for Personnel Action form, reflecting that the appellant's August 22, 1994 appointment was provisional, there is no evidence that the appellant was ever presented with this form or in any other way notified that his appointment was provisional. Moreover, Kossup also indicates in a sworn statement that he effectuated the appellant's permanent appointment from a certification of the Chief Fire Alarm Operator (PM3580M) eligible list. The appellant also attended a formal ceremony on August 22, 1994, at which he was officially sworn into the position of Chief Fire Alarm Operator. It is noted that Kossup and Mayor Sharpe James also presided at this ceremony. Largely due to Kossup's assurances regarding the permanency of his appointment and the appointing authority's failure to notify him of the necessity of taking any further action in order to perfect his permanent appointment, the appellant failed to take any further promotional examinations for the title of Chief Fire Alarm Operator. Thus, the misinformation regarding the status of his employment precluded the appellant from taking the steps necessary to achieve permanency in that position. Moreover, unlike in Kyer, [Kyer v. City of East Orange, 315 N.J. Super. 524 (App. Div. 1998)] the appellant's eligibility for appointment to the title of Chief Fire Alarm Operator was confirmed by the DOP prior to his provisional appointment. In this regard, the appellant filed and was deemed eligible for the title of Chief Fire Alarm Operator, and he appeared on the resulting eligible list. Therefore, under these circumstances, the record supports recognizing the appellant's permanent appointment to the title of Chief Fire Alarm Operator. However, the Board finds that the appellant's permanent appointment should be recorded as February 3, 1995, the date of the certification from which he could have been appointed. In this regard, it must be recognized that, while the appointing authority led the appellant to believe his appointment was permanent on August 22, 1994, the subject eligible list was not certified and the appellant's permanent appointment could not have been effectuated until February 3, 1995. Thus, this is the earliest date on which a permanent appointment could have properly been effectuated.

Newark argues that the Board's decision to grant Crane's request for permanent status as a Chief Fire Alarm Operator was arbitrary, capricious, and unreasonable, and not supported by substantial credible evidence in the record. More specifically, Newark argues that "the Board erred by not considering the evidence that Crane was advised that his appointment to Chief Fire Alarm Operator was provisional and that the DOP had been placed on notice several times that Crane was in a provisional appointment." We find these arguments unpersuasive.

The scope of our review of an agency decision, of course, is limited. We accord the presumption of validity to the agency's decision, which will be sustained unless it is arbitrary, capricious, or unreasonable, or is not supported by substantial credible evidence in the record as a whole. See, e.g., R & R Mktg. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999); In re Taylor, 158 N.J. 644, 657 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); see generally, Pressler, Current N.J. Court Rules, comment 7.2 on R. 2:10-2 (2006).

Based on our review of the record, we are satisfied that it was not unreasonable for the Board to conclude that Crane was given misleading information regarding the status of his employment, and that Crane reasonably believed his position was permanent because he attended a formal ceremony, presided over by Kossup and Mayor Sharpe James, at which he was officially sworn into the position of Chief Fire Alarm Operator. The record also supports the Board's finding that the misinformation regarding the status of Crane's employment precluded him from taking the steps necessary to achieve permanency in that position. We have previously held that a provisional employee should not be deprived of permanent status because of the appointing authority's neglect. In such instances, "the Department of Personnel has the authority to retroactively . . . determine the employee's qualifications by such methods as it shall in its discretion deem appropriate." Kyer v. City of East Orange, supra, 315 N.J. Super. at 534.

 
Affirmed.

A previous DOP audit determined that Crane had been performing the duties of a Supervising Public Safety Telecommunicator and that he had been provisionally appointed to that title, pending promotional examination procedures. Subsequent to his provisional appointment, Crane's name did not appear on any of the three eligible lists for the title of Supervising Public Safety Telecommunicator, therefore, Crane was scheduled to return to his prior permanent title of Fire Alarm Operator.

(continued)

(continued)

7

A-0413-04T3

February 17, 2006