IN THE MATTER OF JOSEPH SULLIVAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4433-08T24433-08T2

IN THE MATTER OF JOSEPH

SULLIVAN, POLICE SERGEANT

(PM2536F), RINGWOOD.

_______________________________________

 

Submitted August 3, 2010 - Decided

Before Judges Graves and Yannotti.

On appeal from a Final Decision of the New Jersey Civil Service Commission, CSC Docket No. 2009-282.

Joseph S. Murphy, attorney for appellant Joseph Sullivan.

McManimon & Scotland, L.L.C., attorneys for respondent the Borough of Ringwood (Mark J. Semeraro and David J. Gittines, on the brief).

Paula T. Dow, Attorney General, attorney for respondent the New Jersey Civil Service Commission (Andrea R. Grundfest, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Joseph Sullivan (Sullivan) appeals from a final determination of the New Jersey Civil Service Commission (Commission) dated March 30, 2009, which rejected his challenge to the decisions by the Borough of Ringwood (Borough) to select other officers for the position of Sergeant in the Borough's police force. We affirm.

The following facts are pertinent to our decision. Sullivan is a police officer in the Borough. In July 2008, he was fifty-one years of age. He had been an officer on the Borough's police force for twenty and a half years. Sullivan's name appeared as the first name on the eligible list for Police Sergeant (PM2536F) that was certified to the Borough on August 22, 2006. On October 1, 2006, the Borough bypassed Sullivan and appointed Steven Hafner (Hafner), who was second on the list, to the position.

The Borough submitted a statement from the Police Chief, Bernard F. Lombardo (Lombardo), explaining why Hafner was appointed to the position:

Hafner has demonstrated a strong work ethic. He is conscientious, intelligent and compassionate, all positive indicators of a good supervisor. [Hafner] has always been willing to help the new officers and has shown a good ability to teach and mentor. His job knowledge is excellent and his decision making skills are very strong. His performance with the Passaic County Narcotic Task Force as well as his deployment to New Orleans after [Hurricane] Katrina shows that he is adaptable to different environments as well as willing to put public safety before his own. He is dedicated to this department and the municipality and I believe that he would make a great Sergeant.

Sullivan's name also appeared as the first name on the eligible list for the position of Police Sergeant (PM2536F) that was certified to the Borough on December 10, 2007. The Borough bypassed Sullivan and appointed Michael Caughey (Caughey), who was second on the list, effective February 25, 2008. In support of its decision to appoint Caughey to the position, the Borough submitted a statement from Lombardo, who stated that:

Caughey is conscientious, intelligent and a good communicator; [which are] all positive indicators of a good supervisor. [Caughey] is always willing to help new officers and has shown a good ability to teach and mentor. His decision making skills are very strong. [Caughey] is dedicated to this department and the municipality and I believe that he will make a great Sergeant[.]

By letter dated March 13, 2008, Sullivan filed an appeal with the State's Department of Personnel (DOP), challenging the Borough's decisions. He asserted, among other things, that the Borough had abdicated its "statutory and constitutional responsibilities" in making the appointments. The DOP found, however, that the Borough had complied with the so-called "Rule of Three" in making the disputed appointments.

Sullivan appealed that determination to the Commission, which rendered a final determination in the matter. The Commission found that Sullivan's appeal challenging Hafner's appointment was untimely since the certified list from which that appointment was made was disposed of in October 2006 and Sullivan did not challenge the appointment until March 2008. The Commission noted that N.J.A.C. 4A:2-1.1(b) requires that appeals be filed within twenty days of the challenged action.

The Commission also found that Sullivan's appeal challenging Caughey's appointment was without merit. The Commission noted that, under the applicable regulations, the Borough had the discretion to select any one of the top three eligible persons on a promotional list. The Commission determined that the Borough had provided a reasonable explanation for bypassing Sullivan and appointing Caughey, and Sullivan failed to establish that the Borough's decision was improper.

In this appeal, Sullivan raises the following arguments for our consideration:

Point I

THE FAILURE OF RINGWOOD TO PROMOTE SULLIVAN WAS A [VIOLATION] OF HIS CONSTITUIONAL RIGHT TO BE PROMOTED IN SO FAR AS PRACTICABLE UNDER THE NEW JERSEY CONSTITUTION, ART. VII, SECTION 1 PARA. 2. OF THE 1947 CONSTITUTION AND OF THE REGULATIONS DULY [PASSED] BY THE DEPARTMENT OF [PERSONNEL] (DOP) TO ENFORCE THAT RIGHT AND WAS A FURTHER VIOLATION OF HIS RIGHT TO BE TREATED EQUALLY [UNDER] THE LAW.

Point II

THE COURT SHOULD REMAND THE MATTER AND ORDER THE CIVIL SERVICE [COMMISSION] TO HOLD AN EVIDENTIAL HEARING[.]

Having carefully reviewed the record in light of these contentions, we conclude that these contentions are without merit. We affirm substantially for the reasons stated by the Commission in its final decision dated March 30, 2008. R. 2:11-3(e)(1)(D). We add the following brief comments.

"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). "Courts can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid.

In determining whether the agency's action is arbitrary or unreasonable, we consider: 1) whether the agency's decision offends the State or Federal Constitution; 2) whether the action violated express or implied legislative policies; 3) whether there is substantial credible evidence in the record to support the agency's findings; and 4) whether the agency clearly erred in reaching a conclusion unsupported by relevant factors. Ibid. (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); In re Larsen, 17 N.J. Super. 564, 570 (App. Div. 1952)). Furthermore, when reviewing a decision of an administrative agency, we must give "'due regard . . . to the agency's expertise where such expertise is a pertinent factor.'" Mayflower Sec. v. Bureau of Sec., 64 N.J. 85, 93 (1973) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

Here, the Commission correctly found that Sullivan's challenge to Hafner's appointment was untimely. As the Commission pointed out, N.J.A.C. 4A:2-1.1(b) requires appeals to be filed within twenty days of the notice of the action or decision being challenged. Sullivan had challenged the Borough's disposition of the August 22, 2006 certification, which was finalized in October 2006. He filed his appeal on March 13, 2008.

Thus, Sullivan's challenge to Hafner's appointment was not filed within the time prescribed by N.J.A.C. 4A:2-1.1(b). Moreover, Sullivan failed to establish good cause to relax the time for appeal, as permitted by N.J.A.C. 4A:1-1.2(c). We are satisfied that the record supports the Commission's finding that Sullivan "presented absolutely no explanation for [the] inordinate delay" in filing his appeal challenging the Hafner appointment.

We are also satisfied that the record supports the Commission's finding that the Borough properly exercised its discretion when it bypassed Sullivan and appointed Caughey to the position of Sergeant. The Commission explained that, under the applicable law, an appointing authority may select any of the top three eligible persons on a promotional list. The Commission further explained that N.J.A.C. 4A:4-4.8(b)(4) provides that, when disposing of a certification, an appointing authority must give a statement of reasons when bypassing a higher ranked eligible person, and state why the appointee was selected instead of the higher ranked person.

The Commission determined that Sullivan had not carried his burden of establishing that the Borough's decision to bypass him and appoint Caughey was improper. The Commission noted that the Borough had provided a "detailed statement" regarding Caughey's "positive qualities and skills" and, from that statement, it could be reasonably inferred that the Borough did not believe that Sullivan "possessed the same qualities or skills[.]"

The Commission also stated that, while Sullivan had made certain "generalized accusations" regarding the Borough's "motives and past actions[,]" there was no support in the record for those allegations. The Commission additionally rejected Sullivan's assertion that the Borough's bypass decision was motivated by age discrimination because he is fifty-one years old and Caughey is significantly younger. The Commission determined that the Borough had provided legitimate, non-discriminatory reasons for its decision to appoint Caughey and Sullivan had not presented any evidence to dispute the Borough's "characterization of Caughey's skills and abilities or to suggest that he possessed similar or superior skills or abilities." In our view, there is sufficient credible evidence in the record to support the Commission's findings.

Affirmed.

 

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A-4433-08T2

August 17, 2010