IN THE MATTER OF KENNETH R. MARTINEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1876-08T21876-08T2

IN THE MATTER OF

KENNETH R. MARTINEZ

_____________________________

 

Argued: March 24, 2010 - Decided:

Before Judges Stern, J. N. Harris and Newman.

On appeal from the New Jersey Civil Service Commission.

Thomas P. Monahan, Jr., argued the cause for appellant Christopher Szczygiel (Law Offices of Dennis A. Maycher, P.C., attorneys; Dennis A. Maycher and Mr. Monahan, of counsel; Mr. Monahan, on the brief).

Lisa Dorio Ruch, Deputy Attorney General, argued the cause for respondent Civil Service Commission (Paula T. Dow, Attorney General, attorney; Lewis Scheindlin, Assistant Attorney General, of counsel; Ms. Ruch, on the brief).

Sean D. Dias argued the cause for respondent City of Passaic (Scarinci Hollenbeck, attorneys; Mr. Dias, on the brief).

Sanford R. Oxfeld argued the cause for respondent-intervenor Joseph Cajzer (Oxfeld Cohen, P.C., attorneys; Mr. Oxfeld, of counsel; Gail Oxfeld Kanef, on the brief).

PER CURIAM

Christopher Szczygiel appeals from the final administrative determination of the Civil Service Commission (the Commission) entered on December 4, 2008, that ordered his name removed from the eligible list for Deputy Fire Chief and ordered the City of Passaic (the City) to certify a new list and "utilize the 'rule of three' procedures in making an appointment." The Commission also ordered that "upon making an appointment from the certification, Szczygiel shall be returned to his permanent Fire Captain position."

In our prior opinion, In the Matter of Kenneth Martinez, 403 N.J. Super. 58 (App. Div. 2008), we found Szczygiel ineligible for the position of Deputy Chief because (while the Board could approve a settlement to permit eligibility although he did not occupy the captain's position for a year before the closing date) the Merit System Board could not approve a settlement of his litigation by relaxing the "rule of three" requirement and agree to promote him if he scored highest on the test.

Thereafter, the United States Department of Justice (DOJ) advised the parties that the failure to honor the one-year time in grade prerequisite violated the consent decree of which the State and the City were parties, leading to the order under review.

On this appeal, Szczygiel argues that "the United States failed to follow the appropriate procedures with regard to the Appellate Division opinion" that we "reached the correct conclusions" in the prior appeal, and that "the determinations made by the Board must be overturned as arbitrary and capricious and in violation of Deputy Chief Szczygiel's 'property rights.'"

The parties recognize that Szczygiel would not be eligible for the Deputy Chief position under the list in contest if his settlement violated the consent decree and that the determination of that issue belongs in the federal courts. Accordingly, following the Board's order under review, which was based on the uncontested interpretation of the consent decree, and as a condition of our stay, Szczygiel moved to intervene in the District Court to challenge its application. Judge William Walls denied that motion because Szczygiel was not a party to the consent decree. Following oral argument of the appeal, the Third Circuit affirmed that determination. United States v. New Jersey, No. 09-2707 (3d Cir. Apr. 1, 2010).

As a result of the binding impact of the consent decree, we must affirm the final administration determination of the Civil Service Commission. We take no position as to what remedy, if any, Szczygiel may have against the City of Passaic or his rights following any subsequent test. Those issues are not before us.

The stay previously imposed is vacated.

 
Affirmed.

We also questioned whether the settlement and Board's decision violated the 1980 consent degree, but left that determination for the federal court that entered the order. Id. at 75-76.

(continued)

(continued)

4

A-1876-08T2

April 21, 2010