IN THE MATTER OF JAMES CULLEN POLICE CAPTAIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF

JAMES CULLEN,

POLICE CAPTAIN (PM3586L),

MORRISTOWN.

September 18, 2014

Before Judges Sapp-Peterson and Hoffman.

On appeal from the Civil Service Commission, Docket No. 2012-335.

Michael C. Woyce argued the cause for appellant James Cullen (Law Offices of Joseph S. Murphy, attorney; Joseph S. Murphy and Mr. Woyce, on the brief).

Celia S. Bosco argued the cause for respondent Town of Morristown (Genova Burns Giantomasi Webster LLC, attorneys; Ms. Bosco, of counsel and on the brief; Brett M. Pugach, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant James Cullen appeals from a January 11, 2013 final administrative decision of the Civil Service Commission (Commission), denying his appeal of his bypass for promotion to the position of Police Captain in the Morristown Police Department. For the reasons that follow, we affirm the Commission's decision.

I.

In August 2009, appellant applied to take a promotional examination offered for the position of Captain in the Police Department (Department) of the Town of Morristown (Town), subsequently taking the written portion of the examination in October 2009. At the time, appellant was a lieutenant in the department. In November 2009, appellant, a reservist with the United States Coast Guard, was called to active duty and deployed to Iraq and Afghanistan. As a result, he could not sit for the oral portion of the promotional examination when it was administered in December 2009.

On March 24, 2010, the Commission issued a roster, which listed the eligible candidates for promotion to the position of Police Captain in Morristown. Appellant's name was not on the list as he had not yet taken the oral portion of the promotional examination for Captain; this list included Lt. Steven Sarinelli.

On November 15, 2010, upon his return, appellant applied for veterans' status with the Department of Military and Veterans' Affairs (DMVA). He received a notification that he had received such status on January 21, 2011; this veterans' status applied to all future Commission examinations. However, his veterans' status did not apply to the subject examination because the eligible list was issued on March 24, 2010, and promulgated on April 1, 2010. Additionally, when appellant returned, he was reinstated to his same pre-deployment rank of lieutenant, with commensurate pay. Notably, appellant asserts that he never returned to his previous position of supervisory responsibility and status but instead was relegated to performing menial jobs normally assigned to low-level civilian employees.

On January 22, 2011, appellant sat for a make-up oral portion of the Captain examination pursuant to N.J.A.C. 4A:4-2.0, which allows "employees returning from military leave [to] have an opportunity to take promotional examinations that have not yet been administered, or make-up examinations for active promotional lists for which they were eligible while on military leave." Appellant passed this portion of the exam. Then, on June 3, 2011, the Commission issued a "certification of eligibles for appointment" for the Captain position containing only the names of the prior first ranked eligible officers. On June 8, 2011, the Town requested that all eligible officers, including appellant, be added to the Police Captain List; his name was in fact, subsequently added. This certification showed appellant had received the highest score, but was listed as a "non-veteran." Appellant then spoke with representatives from the Commission and the DMVA seeking a correction of his veterans' status, but the determination that he was a "non-veteran" never changed.

The Town applied the Rule of Three1 (or Rule) and selected an eligible candidate other than appellant. As a "non-veteran," appellant was able to be bypassed for promotion pursuant to the Rule and the Town exercised such discretion by promoting Lt. Sarinelli. The Town cited Lt. Sarinelli's significant experience and qualifications for the vacancy, specifically noting he had "more experience [with] Internal Affairs and Detective Bureau."2

On July 21, 2011, appellant filed an appeal with the Commission challenging the Department's decision to bypass him and select Lt. Sarinelli for promotion to Police Captain instead; appellant further alleged he was subjected to more than a decade and one-half of discrimination with regards to assignments and promotions because of his military service. On August 16, 2011, the Town provided the Commission with a statement of reasons for selecting Lt. Sarinelli, indicating that Lt. Sarinelli had four years of experience as a Detective Bureau supervisor, four years of experience as a Services Division supervisor and four years of experience in Internal Affairs. On July 11, 2012, appellant filed a petition for an evidentiary hearing before the Office of Administrative Law, which the Commission rejected.

On January 11, 2013, the Commission filed its final agency decision, upholding the Town's bypass decision pursuant to the Rule of Three. Initially, the Commission noted that bypass appeals are treated as a review of the written record and determined that since there were no material and controlling disputes of fact, a hearing was not warranted.

Next, the Commission found that pursuant to N.J.A.C. 4A:2-1.1(b), appellant's appeal of his veterans' status was untimely, as it was filed beyond the twenty-day statutory time limit for filing appeals. Specifically, the Commission found appellant was notified on June 3, 2011, that his name had been added to the eligible list with a non-veterans' status; yet, his appeal was filed on July 22, 2011, more than twenty days from the date he had notice of the action being appealed. Regardless of this issue, the Commission also found the appellant's veterans' status was computed properly and he was not entitled to veterans' status for the purposes of an appointment to the promotional position. The Commission concluded appellant did not receive a determination of veterans' status eight days prior to the issuance of the eligible list, as required by N.J.S.A. 11A:5-1(b), and therefore, could only have his veterans' status applied prospectively. Furthermore, the Commission noted that appellant was unable to present "any substantive evidence that the bypass was improper or an abuse of the appointing authority's discretion under the '[R]ule of [T]hree.'"

The Commission further found appellant was also unable to refute the Town's legitimate, non-discriminatory determination that Lt. Sarinelli had more experience in Internal Affairs, where the vacancy was located. Rather, the principal evidence appellant relied upon to support his discrimination claim was prior alleged incidents, which appellant could not rely upon, pursuant to a 2010 voluntary settlement that released all claims relating to those incidents and barred future litigation based on those incidents. The Commission cited specifically to paragraph 3 of the settlement agreement which "'fully and forever' releases the appointing authority and the Police Chief from 'any and all' claims 'whether vested or contingent' through the date of the agreement, including all discrimination claims under [Uniformed Services Employment And Reemployment Rights Act] and [Law Against Discrimination], New Jersey State Constitution, or any other federal or State statute or regulation[.]" It also cited paragraph 4 of the settlement agreement, which states that appellant "'promises and agrees that he will not file, re-file, appeal, initiate, or cause to be filed, refile[] or initiate[] any claim, suit, action or other proceeding based upon, arising out of, or related to any [c]laims released herein.'" With respect to the alleged new evidence of discrimination, the Commission also found that the alleged unfavorable assignment, shift, and location of his office for two months between appellant's tours of duty even if true, were insufficient to constitute actionable discrimination under USERRA and LAD.

On appeal, appellant argues his veterans' status should have been retroactive to the date the eligible list was issued and that he should not have been bypassed. He also argues he was bypassed for promotion for discriminatory reasons. We disagree and find no indication that the Commission's decision was arbitrary, capricious, or unreasonable.

II.

Our role in reviewing the decision of an administrative agency is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We will affirm an agency decision so long as it is supported by the evidence, even if we may question the wisdom of the decision or would have reached a different result. Ibid. A "strong presumption of reasonableness attaches" to an agency decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) (citation omitted), certif. denied, 170 N.J. 85 (2001). With respect to factual findings, agency findings "'are considered binding on appeal when supported by adequate, substantial and credible evidence[.]'" In re Taylor, 158 N.J. 644, 656-57 (1999) (quoting Rova Farms Resort Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We will reverse an agency's judgment if we find that the agency's decision is "'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" Stallworth, supra, 208 N.J. at 194 (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)).

In determining whether an agency's action is arbitrary, capricious or unreasonable, we must examine:

(1) whether [it] 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 In re Carter, 191 N.J. 474, 482-83 (2007)).]

Indeed, the burden of proving that an agency action is arbitrary, capricious, or unreasonable is on the challenger. Bueno v. Bd. of Trs., 422 N.J. Super. 227, 234 (App. Div. 2011).

We "should give considerable weight to an agency's interpretation of a statute the agency is charged with enforcing." G.S. v. Dep't of Human Servs., 157 N.J. 161, 170 (1999). This court, however, is "not bound by an agency interpretation of a strictly legal issue . . . when that interpretation is inaccurate or contrary to legislative objectives." Ibid.

We first address appellant's argument that the Commission failed to grant him veterans' status pursuant to N.J.S.A. 11A:5-1(b) and N.J.A.C. 4A:5-1.3. The ultimate issue is whether appellant's veterans' status was properly applied. Veterans' status is solely a creation of State law. N.J.S.A. 11A:5-1(b) limits the application of veterans' status to persons who meet the definition of one "who has served in the active military . . . service of the United States" and who has "received a determination of [that] status no later than eight days prior to the issuance of an employment list, for which that individual received a passing score on an examination[.]" Additionally N.J.A.C. 4A:4-2.9 provides that

employees returning from military leave shall have an opportunity to take promotional examinations that have not yet been administered, or make-up examinations for active promotional lists for which they were eligible while on military leave. If the eligible passes the examination, his or her name will be placed on the eligible list, for prospective appointment only, based upon the score obtained, as if the examination had been taken when originally held[.]

We agree with the Commission that the amendment to N.J.S.A. 11A:5-1(b) extended the time in which an applicant must establish veterans' preference, but the extended time is tied to a particular eligible list. Furthermore, pursuant to N.J.S.A. 11A:5-1.1 and N.J.A.C. 4A:5-1.3, veterans' preference is only applied prospectively. For appellant, this means that veterans' preferences would only be applied to eligible lists issued no later than eight days after the determination of veterans' status. Here, it is clear that when the eligible list was published, appellant had not yet taken and passed both parts of the exam and had not qualified for veterans' status; the subject eligible list was issued on March 24, 2010 and the determination of the appellant's veterans' statute was made in 2011. Therefore, we find it clear that appellant's veterans' status may only be applied prospectively. Accordingly, we find the Commission properly found that appellant was not entitled to veterans' status on the list. Indeed, at the time the eligible list was promulgated in April 2010, appellant had not achieved veterans' status.

We next address the Commission's decision to bypass appellant pursuant to the Rule of Three. "The purpose of the Rule of Three is to provide the appointing authority with a limited degree of discretion in the selection of a candidate for a civil service position." In re Martinez, 403 N.J. Super. 58, 72 (App. Div. 2008), certif. denied, 205 N.J. 15 (2010). "Under the Rule of Three, after a list of at least three candidates is certified, the appointing authority has the discretion to select from among the top three candidates in filling a vacancy." In re Foglio, 207 N.J. 38, 45 (2011). Thus, an appointing authority considers the listed candidates in groups of three in descending ranked order until the vacancies are filled. Ibid.

The appointing authority can bypass a candidate for any legitimate reason based on merit. Crowley, supra, 193 N.J. Super. at 214; In re Hruska, 375 N.J. Super. 202, 210 (App. Div. 2005). Valid reasons for a bypass include a preference for a college degree, performance in an interview, character, prior experience, training, and employment references. Foglio, supra, 207 N.J. at 49. There is no definitive list of valid reasons, provided they are merit-based. Finally, the burden of proof lies with the bypassed candidate to show by a preponderance of the evidence that the appointing authority's bypass decision was motivated by discrimination, retaliation, or other improper motive. See N.J.A.C. 4A:2-1.4(c). We find appellant failed to meet this burden of demonstrating that the bypass was unlawful, arbitrary, or capricious.

Here, the Town set forth legitimate reasons for choosing Lt. Sarinelli. In fact, the Town listed the following reasons for bypassing appellant in its statement: Lt. Sarinell's area of experience as a Detective Bureau Supervisor, his experience as a Services Division Supervisor, and particularly his experience in Internal Affairs. Lt. Sarinelli's experience in Internal Affairs was particularly important because the Services Division/Internal Affairs was specifically where the vacancy existed. Additionally, the Town explained in the statement of reasons that the Services Division Captain is the head of the Services Division and the Detective Bureau and as such "is intimately involved in all matters involving internal affairs." We find these are valid, work-related reasons to bypass appellant and select Lt. Sarinelli as they are specifically tied to the experience relevant to the position.

Lastly, we turn to appellant's argument that he presented a prima facie case of discrimination based on his military status. The record fully supports the Commission's finding that these issues were already resolved in accordance with the voluntary settlement agreement signed by appellant on February 18, 2010. Accordingly, we find this argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 The Rule of Three establishes that once candidates have completed qualifying tests, promotions are made from among the candidates with the three highest test scores. N.J.S.A. 11A:4-8. The Rule thus allows employers to select those individuals deemed best qualified from among a group limited to the top three most objectively qualified. See In re Crowley, 193 N.J. Super. 197, 206 (App. Div. 1984).

2 The Town initially stated its reasons for the bypass in the comments section of the June 28, 2011 certification.