IN THE MATTER OF CHARLES GALLO POLICE SERGEANT PM2534G LINDEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2525-09T3

IN THE MATTER OF CHARLES GALLO,

POLICE SERGEANT (PM2534G),

LINDEN.

_________________________________

May 31, 2011

Submitted March 29, 2011 - Decided

Before Judges Wefing and Koblitz.

On appeal from the New Jersey Civil Service Commission, Docket Nos. 2009-2552, 2009-3126 and 2009-3682.

The Anthony Pope Law Firm, P.C., attorney forappellant Charles Gallo (Annette Verdesco, on the brief).

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

John G. Hudak, Municipal Attorney, attorney for respondent City of Linden (Daniel J. McCarthy, Assistant Municipal Attorney, and Diane U. Dabulas, on the brief).

PER CURIAM

Petitioner Charles Gallo appeals from a final decision of the Civil Service Commission (Commission) dated January 14, 2010, rejecting his challenge of the City of Linden's (City) selection of other officers for the position of Sergeant in the City's police force. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Gallo, a non-veteran,1 became employed by the City as a patrol officer on February 1, 1989, after working for six months for the City of Plainfield as a patrol officer. During his tenure, he received various awards for professionalism and valor, and attended various law enforcement instructional lectures.

Gallo was passed over four times for promotion. Initially, he was ranked number five on the promotional list. The first four candidates on the list were appointed, which left Gallo and another individual both in first place on the remaining list. On August 20, 2008, the other individual tied with Gallo in first place was appointed. Gallo did not appeal this selection. He appeals from the four succeeding times he was bypassed on the certified eligible lists for Police Sergeant (PM2534G),2 by the selection of second and fourth-ranking candidates, Marianne Astalos and Edward A. Chabak respectively, from the November 3, 2008 list, Don Geisheimer from the December 10, 2008 list and John Mekovetz from the December 29, 2008 list. The City invoked the "rule of three," which allows for appointment of any of the "top three interested individuals" pursuant to N.J.A.C. 4A:4-4.8(a)(3)ii, to bypass Gallo, who remained in the top position each time.

Pursuant to N.J.A.C. 4A:4-48(b)(4), the City submitted a statement from the Police Chief, Michael F. Boyle "of the reasons why the appointee was selected instead of the other eligible(s)" each of the four times Gallo was bypassed for promotion. The reasons provided by the City for the bypass of Gallo in each instance are as follows.

Astalos, a nineteen-year veteran of the Linden Police Department, was

a reliable and productive officer who handles all tasks assigned to her, and she displays a tremendous amount of knowledge of criminal procedure. She has also established a network of resources around the State of New Jersey and County of Union. Detective Astalos has a Bachelors Degree in English and Political Science. She has attended numerous in-service training courses . . . . She has good communication skills and is respected by her peers, as well as by members of the community. . . . [S]he has an admirable attendance record.

Chabak, a twenty-four year veteran, had been

a Deputy Coordinator of the Linden Office Emergency Management from 1991 until present. He was assigned to the Community Policing Unit from 2004 - 2006, working very closely with youth, community leaders, and a variety of community organizations. . . . He is currently a Certified Firearms Instructor, First Aid Instructor, CPR Instructor and Hazardous Materials Technician. . . . Additionally, he can always be counted on when faced with adverse situations.

Geisheimer, a thirteen-year veteran, has

excellent communication skills and is well respected by his peers, as well as by Linden Police Command. He has been assigned as a Field Training Officer for the Linden Police Department since 2006, and he has excelled in this position. In addition to his Training Officer Duties during the Post-Academy phase for recruits, he organizes and coordinates all Pre-Academy preparation for newly hired officers. He is a Certified Basic Life Support Instructor, Certified CPR Instructor, [is] Police Training Commission Certified for Methods of Instruction, and is a New Jersey State Certified Paramedic. He also possesses an Associates Degree from Union County college and he has an impeccable attendance record.

Mekovetz, a twelve-year veteran, has

attended numerous in-service training courses . . . [and has] excellent communication skills and is well respected by his peers, as well as by Linden Police Command. He has been assigned for the past two years to the Juvenile Bureau where he holds the position of Detective. . . . Detective Mekovetz possesses a Bachelors Degree from Kean University. He also consistently displays a great degree of loyalty toward the mission of the Department and shows motivation toward achieving our goals and objectives.

Gallo claimed on appeal to the Commission that Astalos is a close friend of the police chief and the girlfriend of a police captain. He claimed he was in disfavor with the current administration because he supported the previous mayor. The Commission found that,

[T]here is nothing in the record to suggest that the bypasses of the appellant were the result of any retaliatory or discriminatory motive or based on personal favoritism. The appellant has not presented a scintilla of evidence to support his claims. In addition, the appointing authority has presented detailed explanations for its preference for the lower ranked candidates, which the appellant has not refuted. Although the appellant generally claims that he is the most qualified, he has not demonstrated that the appointing authority's proffered reasons were not factual or in any way pretextual. Thus, the appointing authority has presented legitimate, non-discriminatory reasons to support the bypasses of the appellant's name on the subject certifications.

Gallo argues on appeal that the Commission's decision in upholding the City's decision to bypass him four times for promotion "was arbitrary, capricious or unreasonable and is contrary to law."

We affirm substantially for the reasons stated by the Commission in its final decision dated January 14, 2010. R. 2:11-3(e)(1)(D). We add the following brief comments.

"An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

As the Supreme Court noted in Herrmann, "[t]hree channels of inquiry inform the appellate review function." Id. at 28. These are:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Ibid. (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

"When an agency's decision meets [these] criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid.

We are satisfied that the record supports the Commission's finding that the City properly exercised its discretion each time it bypassed Gallo for the position of Sergeant. The Commission determined that Gallo had not carried his burden of establishing that the City's decision to bypass him was improper. We note that all the promoted candidates other than Chabak had successfully completed post-high school education. Chabak held management and instructor positions within the Linden Police Department. Gallo neither indicates that he has held management or instructor positions, nor that he has received a post-high school academic education. The Commission determined that the City had provided legitimate, non-discriminatory reasons for its decision to appoint the other candidates rather than Gallo. Sufficient credible evidence exists in the record to support the Commission's findings.

Affirmed.

1 "[W]henever a veteran ranks highest on a promotional certification, a nonveteran shall not be appointed unless the appointing authority shall show cause before the board why a veteran should not receive such promotion." N.J.S.A. 11A:5-7

2 The Commission indicates that "PM2534G" is the "symbol" for the position.