IN THE MATTER OF BRIAN COBB

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2055-11T2

IN THE MATTER OF

BRIAN COBB,

POLICE OFFICER (S9999K),

RIDGEWOOD.

_____________________________________________________________

March 25, 2013

Argued March 4, 2013 - Decided

Before Judges Parrillo and Maven.

On appeal from the Civil Service Commission, Docket No. 2011-3026.

Catherine M. Elston argued the cause for appellant Brian Cobb(C. Elston & Associates, L.L.C., attorneys; Ms. Elston, on the brief).

Christopher C. Botta argued the cause for respondent Village of Ridgewood (Botta & Associates, L.L.C., attorneys; Mr. Botta, of counsel and on the brief; Natalia R. Angeli, of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant Brian Cobb appeals from a decision of the Civil Service Commission (Commission) issued on November 23, 2011, upholding the action of respondent Village of Ridgewood to bypass Cobb for appointment from the certified Police Officer (S9999K) eligible list. The Commission concluded that Cobb has failed to meet his burden to prove Ridgewood's decision to bypass him was improper. We affirm.

Cobb is a twenty-five year old life-long resident of Ridgewood. In June 2008, he successfully completed the New Jersey Civil Service Law Enforcement Examination to obtain a position as a Ridgewood police officer. In December 2008, he was ranked number two on the eligible list for appointment. Ryan Ward ranked number four, Stephen Cummings ranked number five, and John A. Ward ranked number six.

In December 2010, Ridgewood sought to hire two police officers. By that time, the number one and number three ranked candidates were already employed and therefore removed from consideration for hiring. Consequently, the other candidates moved up the eligibility list. Cobb was ranked number one, Ryan Ward was ranked number two, Cummings was ranked number three, and John Ward was ranked number four.

Cobb completed an employment application on December 3, 2010. As part of his employment history, he noted that he worked for Cutting Edge Contracting from May 2005 to present. Cobb also noted that he was arrested as a juvenile for trespassing and resisting arrest, and was sentenced to community service by a Juvenile Conference Committee. He submitted no letters of recommendation with his application.

As part of the appointment process, the candidates were interviewed. The Chief of Police, John M. Ward, removed himself from the interviewing process because he was the father of two eligible candidates, Ryan and John. In his stead, according to Cobb, James Batelli, Chief of the Police Department in Mahwah, a neighboring municipality, interviewed the six eligible candidates. Cobb was supposedly later advised by Detective Doug Williams of the Ridgewood Police Department that Cobb "unanimously performed the best in the interview."

The top five candidates were also interviewed by Ridgewood Manager Kenneth Gabbert who, pursuant to Village Ordinance 3-28, was responsible as the appointing authority to select the two candidates to be hired. During Cobb's interview, he was questioned about his employment and driving history, and generally his temperament. When Gabbert asked why he never filed tax returns in the past to account for his employment with Cutting Edge Contracting, Cobb responded that as a full-time college student making modest income working on a part-time basis, he was advised that he did not have to file tax returns. Cobb further advised that he was "on the books" as of January 2010 and could provide tax returns for the past year. In May 2011, Cobb sought professional tax advice to resolve any discrepancies for the years 2005-2009 in which he never filed returns.

On January 19, 2011, Cummings, the third-ranked eligible and John Ward, the fourth-ranked eligible, were appointed. According to Gabbert, the appointed candidates were more qualified and better suited than Cobb for employment as a police officer.

On January 20, 2011, Cobb filed a pro se appeal letter with the Commission, concluding that he was bypassed without a valid reason and that the hiring decision was an "abuse of nepotism" as one of Chief Ward's sons was hired. When he later discovered that Cummings had been arrested on September 12, 2010, for criminal mischief for allegedly discharging a fire extinguisher in an Atlantic City hotel room, Cobb supplemented his January 20, 2011 letter, complaining as well about a conflict of interest citing Gabbert's previous working relationship in the Borough of Little Ferry with an "associate" of Cummings's father.1

On February 15, 2011, Gabbert notified the Commission of his selections. In his letter to Cobb on February 15, 2011, explaining why other candidates were selected over him, Gabbert wrote:

As you have been advised, the Village has determined that two other candidates were more qualified and/or better suited to employment as a Police Officer in the Village of Ridgewood. In light of your request for a more detailed explanation of why other candidates were selected over you for the position of Police Officer, please see the explanation below.

In the determination of the Appointing Authority, you were deemed less experienced [than] the eligibles selected for the open positions. This decision was based in part on a review of relevant work experience and your inability to fully explain some aspects of your own alleged experience.

In addition, the Appointing Authority determined that some of the responses to questions posed to you during your interview were not fully forthright and failed to demonstrate an understanding of the qualifications and attributes of a Police Officer in the Village of Ridgewood. Specifically, our discussion regarding your employment at Cutting Edge Contracting (which had been omitted from your employment application), revealed that despite claiming to have earned an hourly wage since 2005, you had never filed a tax return. . . . Candidly, your glibness about being "paid off the books", which you admitted was a violation of law by you and your employer does not demonstrate the character we look for in Police Officers in the Village.

On May 18, 2011, respondent submitted its position statement to the Commission. Respondent reiterated Gabbert's letter to Cobb and maintained that Cobb was less qualified and less experienced than the two candidates ultimately selected. As to them, respondent stated:

The candidates selected were John Ward and Stephen Cummings. Mr. Cummings was qualified and presented well during the interview. Furthermore, Mr. Cummings' employment background incorporated two internships with the Bergen County Sheriff's Department and the Dutchess County Sheriff's Department. Additionally Mr. Cummings received extremely positive reviews from his supervisors at these internships. . . . [Cobb] suggests that Mr. Cummings was arrested for criminal mischief, and therefore he should not have been selected. It is apparent that [Cobb] knows nothing about the matter, and therefore his comments should be disregarded. What is pertinent is that all charges were dismissed against Mr. Cummings.

John Ward, the second candidate selected, is the Chief's son. [Cobb] fails to disclose how John Ward was not suitable to be selected for the subject position. As with Mr. Cummings, Mr. John Ward was qualified and also presented well during the interview. Mr. John Ward demonstrated a maturity and honest demeanor which [Cobb] did not portray. Simply stated, Mr. John Ward was the more qualified candidate.

Cobb responded, asserting he is well-qualified and provided four letters of recommendation drafted after the interview process.

On review, on November 23, 2011, the Commission denied Cobb's appeal, determining that he had not met his burden to prove Ridgewood's decision to bypass him was improper. The Commission reasoned:

In this matter, [Cobb] did not provide any substantive documentation indicating that his qualifications surpass those of the other candidates who were appointed. The appointing authority has broad discretion to use several factors while making its decision to appoint the candidates. In this regard, the appointing authority was correct to consider several factors including, but not limited to, education, letters of recommendation, and responses to interview questions. Other than [Cobb's] allegations, he has not provided any information that would establish that he was improperly bypassed. The appointing authority provided information regarding John A. Ward's and Stephen Cummings' qualifications, and [Cobb] has not established that his qualification are superior. The Rule of Three does not entitle an appellant to an appointment, and the appointing authority was not required to appoint him simply because he was ranked in the first position. Further, although [Cobb] suggests that his bypass was related to a political and/or business relationship that existed between Monaghan, Gabbert and Richard Cummings, other than his tenuous allegations generally relating to Gabbert, he has not presented any evidence to support his claims. While Gabbert, Richard Cummings, and Monaghan may have known each other, the information submitted by [Cobb] does not confirm that any political relationships existed which may have directly influenced the appointments of John A. Ward and Stephen Cummings. Further, while Stephen Cummings was arrested only four months prior to his interview, the appointing authority states that the charges against him were dismissed, which [Cobb] does not dispute.

It is also noted that John M. Ward, the Police Chief for Ridgewood, is John A. Ward's father. However, the record established that John M. Ward did not participate in the hiring process because the appointing authority wanted to avoid the appearance of nepotism. In addition, while John M. Ward may have assisted in the hiring process on previous occasions, the appointments made on previous occasions have no relevance to the matter at issue.

This appeal follows in which appellant raises the following issues:

I. THE COMMISSION'S DETERMINATION UPHOLDING APPELLANT'S BYPASS TO APPOINTMENT TO THE TITLE OF POLICE OFFICER CONSTITUTES AN ARBITRARY, CAPRICIOUS, AND UNREASONABLE APPLICATION OF N.J.A.C. 4A:4-4.8(a)3, KNOWN AS THE "RULE OF THREE"

II. THE COMMISSION'S RULING IS ARBITRARY, CARPICIOUS AND UNREASONABLE AS APPELLANT'S BYPASS IS NOT BASED ON THE STATUTORY AND CONSTITUTIONAL REQUISITE OF MERIT OR FITNESS AND, THEREFORE, OFFENDS THE STATE CONSTITUTION AS WELL AS VIOLATES EXPRESS AND IMPLIED LEGISLATIVE POLICIES

III. THE AGENCY'S RULING IS ARBITRARY, CAPRICIOUS AND UNREASONABLE AS IT VIOLATES THE EXPRESS LEGISLATIVE PURPOSES OF THE LOCAL GOVERNMENT ETHICS LAW, N.J.S.A. 40A:9-22.1 ET SEQ., WHICH ACT SERVES TO LIMIT AN APPOINTING AUTHORITY'S DISCRETION UNDER THE "RULE OF THREE"

IV. THE COMMISSION'S DENIAL OF TRANSFER OF THIS MATTER TO THE OAL FOR A CONTESTED HEARING WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE AS SUCH DENIAL COUNTERVENED THE EXPRESS LEGISLATIVE PURPOSES OF THE OAL

We find no merit to these contentions.

Except for hiring preferences awarded to military veterans, appointments and promotions in the civil service "shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive[.]" N.J. Const. art. VII, 1, 2. This principle of merit-based appointments is embodied in the Civil Service Act, N.J.S.A. 11A:4-1 to -16.

The "Rule of Three" governs the discretion of the appointing authority by requiring selection from the three highest scoring candidates. N.J.S.A. 11A:4-8 states:

The commission shall certify the three eligibles who have received the highest ranking on an open competitive or promotional list against the first provisional or vacancy. For each additional provisional or vacancy against whom a certification is issued at that time, the commission shall certify the next ranked eligible. If more than one eligible has the same score, the tie shall not be broken and they shall have the same rank. If three or more eligibles can be certified as the result of the ranking without resorting to all three highest scores, only those eligibles shall be so certified.

A certification that contains the names of at least three interested eligibles shall be complete and a regular appointment shall be made from among those eligibles. An eligible on an incomplete list shall be entitled to a provisional appointment if a permanent appointment is not made.

Eligibles on any type of reemployment list shall be certified and appointed in the order of their ranking and the certification shall not be considered incomplete.

See also N.J.A.C. 4A:4-4.8(a)(3) ("Upon receipt of a certification, an appointing authority shall . . . [a]ppoint one of the top three interested eligibles (rule of three) from an open competitive or promotional list . . . .").

"[T]he purpose of the 'rule of three' is to narrow hiring discretion, not to eliminate it." Terry v. Mercer Cnty. Bd. of Chosen Freeholders, 86 N.J. 141, 149 (1981). "The rule of three recognizes employment discretion and seeks to ensure that such discretion is not exercised in a way inconsistent with 'merit' considerations." Id. at 149-50. "[T]he discretion of government to hire is not absolute," and "other important criteria in governmental employment practices" are still relevant. Id. at 150. An applicant "who successfully passes an examination and is placed on an eligible list does not thereby gain a vested right to appointment. The only benefit inuring to such a person is that so long as that list remains in force, no appointment can be made except from that list." In re Crowley, 193 N.J. Super. 197, 210 (App. Div. 1984).

The appointing authority can bypass a candidate for any legitimate reason based on merit. Id. 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. In re Foglio, 207 N.J. 38, 49 (2011). There is no definitive list of valid reasons, just that they be merit-based.

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); Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 445 (App. Div. 1990). Once the claimant makes a prima facie showing, the burden of going forward, but not the burden of persuasion, shifts to the employer to articulate a legitimate, non-discriminatory or non-retaliatory reason for the decision. Jamison, supra, 242 N.J. Super. at 445. If the employer meets its burden, the claimant can still prevail if the claimant shows that the proffered reasons are pretextual or that the improper reason more likely motivated the employer. Ibid. If the employee meets that burden, the employee has established a presumption of discriminatory or retaliatory intent and the burden shifts to the employer. Id. at 446. The employer must then prove that the action would have taken place regardless of the discriminatory or retaliatory motive, usually by showing that the other candidates had better qualifications. Ibid.

That said, our review of the Commission's decision is limited. Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). We will not upset a determination by the Commission unless it is arbitrary, capricious or unreasonable or that it lacks fair support in the record as a whole. Ibid. A strong presumption of reasonableness attaches to a decision of the Commission, In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001), as we "defer to an agency's expertise and superior knowledge of a particular field[,]" Outland v. Bd. of Trustees of the Teachers' Pension & Annuity Fund, 326 N.J. Super. 395, 400 (App. Div. 1999). "If the original findings are supported by substantial credible evidence in the record as a whole, we must accept them." Ibid.

Our review of the record persuades us that the Commission's decision is supported by substantial credible evidence. Both Gabbert's letter to Cobb and respondent's submission to the Commission contain an adequate statement of reasons as to why the two appointees were selected instead of the higher-ranked Cobb. As those statements, as well as the Commission's final decision, indicate, Cobb had no relevant work or professional experience and presented no recommendations at the time of interview, whereas Cummings had law enforcement internships and positive reviews from his supervisors. Moreover, both Cummings and Ward interviewed well, the latter demonstrating "a maturity and honest demeanor," which Cobb did not portray.2 Indeed, during his interview with the appointing authority, Cobb cavalierly reported failing to file tax returns and Gabbert properly considered Cobb's dismissive attitude as a negative character trait for a police officer candidate. And although Cobb points to Cummings's arrest for a disorderly persons offense, it is clear that Gabbert considered the matter in his review of the candidate's qualification, but stressed that the charge was ultimately dismissed.

Equally unavailing is Cobb's claim of political favoritism and conflict of interest based on Gabbert's relationship with an individual (Monaghan) who works in the same office building with Stephen Cummings's father (Richard) and represented Stephen in his Atlantic City disorderly persons matter.

The Supreme Court has identified four types of conflicts that require disqualification under the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 to -22.25:

(1) "Direct pecuniary interests," when an official votes a matter benefiting the official's own property or affording a direct financial gain; (2) "Indirect pecuniary interests," when an official votes on a matter that financially benefits one closely tied to the official, such as an employer, or family member; (3) "Direct personal interest," when an official votes on a matter that benefits a blood relative or close friend in a non-financial way, but a matter of great importance . . .; and (4) "Indirect Personal Interest," when an official votes on a matter in which an individual's judgment may be affected because of membership in some organization and a desire to help that organization further its policies.

[Shapiro v. Mertz, 368 N.J. Super. 46, 52 (App. Div. 2004) (quoting Wyzykowski v. Rizas, 132 N.J. 509, 525-26 (1993)).]

A conflict of interest determination is done on a case-by-case basis. Wyzykowski, supra, 132 N.J. at 523. "The question will always be whether the circumstances could reasonably be interpreted to show that they had the likely capacity to tempt the official to depart from his sworn public duty." Van Itallie v. Franklin Lakes, 28 N.J. 258, 268 (1958). The deciding factor is whether there is a potential for conflict, not its actual effect. Wyzykowski, supra, 132 N.J. at 524. "A conflicting interest arises when the public official has an interest not shared in common with the other members of the public." Ibid. "There cannot be a conflict of interest where there do not exist, realistically, contradictory desires tugging the official in opposite directions." LaRue v. Twp. of East Brunswick, 68 N.J. Super. 435, 448 (App. Div. 1961).

The appearance of impropriety must have some reasonable basis and be "something more than a fanciful possibility." Higgins v. Advisory Comm. on Prof'l Ethics of the Supreme Court of N.J., 73 N.J. 123, 129 (1977). In this regard, the Court has stated:

Local governments would be seriously handicapped if every possible interest, no matter how remote and speculative, would serve as a disqualification of an official. If this were so, it would discourage capable men and women from holding public office. Of course, courts should scrutinize the circumstances with great care and should condemn anything which indicates the likelihood of corruption or favoritism. But in doing so they must also be mindful that to abrogate a municipal action at the suggestion that some remote and nebulous interest is present, would be to unjustifiably deprive a municipality in many important instances of the services of its duly elected or appointed officials.

[Van Itallie, supra, 28 N.J. at 269.]

Here, Cobb has failed to demonstrate any conflict of interest. Relying on conjecture, speculation and "fanciful possibility," Cobb has shown, at most, that Monaghan worked for the Borough of Little Ferry as an attorney since 2006, while Gabbert was the Borough's Administrator from 2006 to 2009, and that Monaghan, in turn, works in the same office building as Richard Cummings, a certified public accountant, and represented Stephen Cummings on his Atlantic City disorderly persons complaint. Lacking is any claim, much less proof, of a close personal or business relationship or any shared pecuniary interest. Indeed, Cobb has demonstrated nothing more than that Gabbert may have known Richard Cummings. This simple familiarity, however, does not rise to the level that would require Gabbert to recuse himself, see Shapiro, supra, 368 N.J. Super. at 56 (invalidating an appointment to the Planning Board where a wife voted for the reappointment of her husband), inasmuch as disqualifying an official for merely knowing a candidate would significantly handicap local government decision-making. Given the remoteness and tenuousness of any such relationship, we are satisfied that "no reasonable person could conclude that such involvement would have tempted [Cobb] 'to depart from [his] sworn public duty.'" Hughes v. Monmouth Univ., 394 N.J. Super. 193, 198 (App. Div.), certif. denied, 192 N.J. 599 (2007).

Lastly, Cobb argues he was entitled to a hearing because there were numerous fact issues to be resolved. We disagree.

Bypass appeals are generally treated as reviews of the written record. N.J.S.A. 11A:2-6(b). Hearings are granted in those limited instances where the Commission determines that a "material and controlling dispute of fact exists that can only be resolved by a hearing[.]" N.J.A.C. 4A:2-1.1(d).

Here, no issues of material fact existed. As noted, Gabbert articulated the reasons Cobb was not selected. Cobb failed to make a prima facie showing of improper bypass through discrimination, retaliation or other wrongful motive. He offered no evidence of his superior qualifications and there were no disputed facts as to the qualifications of the eligible candidates ultimately selected. Moreover, Cobb's claim of a disqualifying conflict of interest similarly finds no support in the evidence.

Under the circumstances, the Commission reasonably concluded that Ridgewood had properly exercised its discretion under the Rule of Three to bypass Cobb and to appoint other candidates that Ridgewood considered better qualified to fill the law enforcement position. N.J.S.A. 11A:4-8; I/M/O Nicholas Foglio, supra, 207 N.J. at 47; Crowley, supra, 193 N.J. Super. at 214.

A

1 In his February 8, 2011 supplemental letter. Cobb stated in part:

While I am not making any accusations, the following facts are disturbing. Stephen Cummings was ranked third on the Civil Service list when he was hired by Ridgewood. His father, Richard Cummings, has a personal relationship with Joseph Monaghan. Both men work in the same office building at 11 State Street, Hackensack. Mr. Cummings is a Certified Public Accountant and Mr. Monaghan is an attorney. Further, Mr. Monaghan has been employed as the attorney for the Borough of Little Ferry since at least 2006. Interestingly, Ken Gabbert, the Village Manager of Ridgewood who was responsible for the hiring decision, was the Little Ferry Borough Administrator between 2006 and 2009. In 2008, when the Civil Service exam was administered, I believe that Stephen Cummings selected Little Ferry and Ridgewood as two towns where he wanted his scores to be sent. In addition, it was recently brought to my attention that after Stephen Cummings was selected, there was a luncheon attended by Richard Cummings and Joseph Monaghan at which Mr. Monaghan spoke of his long term relationship with Ken Gabbert. Either the relationship between Cummings, Monaghan, and Gabbert is purely coincidental, or their relationships lead to an unjust hiring decision.

2 As to Ward's qualifications, Cobb offered no contradictory evidence other than his bare assertion that Ward was selected because his father was Police Chief; however, his father did not participate in the hiring process, as he normally would, because his son was a candidate.