DOUGLAS ROMARY v. CITY OF PATERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DOUGLAS ROMARY, RONALD VAN WOLDE,

EDWIN RODRIGUEZ, STEPHEN IACUZZO,

RONALD ALTMAN, PATRICK LENOY and

ANGEL VARGAS,

Plaintiffs-Appellants,

v.

CITY OF PATERSON and PATERSON

POLICE DEPARTMENT,

Defendants,

and

CIVIL SERVICE COMMISSION and STATE

OF NEW JERSEY,

Defendants-Respondents.

______________________________________

October 10, 2013

Argued September 11, 2013 Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-5367-11.

Joseph S. Murphy argued the cause for appellants (Law Offices of Joseph S. Murphy, attorneys; Jesse D. Stovin, on the brief).

Lisa Dorio Ruch, Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney;

Ms. Ruch, on the brief).

PER CURIAM

Plaintiffs, sergeants and one lieutenant in the City of Paterson's police department, filed a complaint charging the City, the Department, and the New Jersey Civil Service Commission with violating the New Jersey Civil Rights Act ("CRA"), N.J.S.A. 10:6-1 to -2. They alleged that a layoff plan, approved by the Commission, violated Article VII, Section I, Paragraph 2 of the New Jersey Constitution, the merit and fitness provision. The layoff plan called for the demotion of twenty-eight sergeants and six lieutenants. On the Commission's motion to dismiss for failure to exhaust administrative remedies, the trial court dismissed their complaint and transferred the matter to the Commission pursuant to Rule 1:13-4. Plaintiffs appeal, and we affirm.

Each of the plaintiffs was promoted to their pre-layoff rank as a result of their performance on competitive examinations certified by the Commission. Several of the Department's sergeants, and several of its lieutenants, were promoted on the same day. The layoff plan approved by the Commission required demotion according to seniority in position; where there was a "tie" for example, where two or more officers were promoted to the same rank on the same day seniority in the Department controlled. Plaintiffs assert that the Constitution requires a different tie breaker between officers promoted on the same day one that is based upon the officers' respective scores on the competitive examination that led to their promotion.

None of the plaintiffs filed a challenge to the layoff plan with the Commission. The Legislature has assigned the Commission general responsibility for interpreting and resolving disputes arising under the Civil Service Law, N.J.S.A. 11A:8-4, and for promulgating rules governing layoffs, N.J.S.A. 11A:8-1. Additionally, the Legislature has specifically provided for the Commission to hear appeals from layoff actions, N.J.S.A. 11A:8-4. In turn, the Commission has promulgated a rule providing for administrative appeals of certain layoff determinations, N.J.A.C. 4A:8-2.6.

It was wholly proper for the trial court to grant the Commission's motion for an opportunity to consider this claim in the first instance. Our courts recognize that an agency charged with the responsibility of administering and enforcing a statutory scheme and having pertinent expertise, essential to performance of these obligations, should be given the opportunity to address questions in the first instance, and on that ground require exhaustion of administrative remedies. Boss v. Rockland Elec. Co., 95 N.J. 33, 40 (1983).

Contrary to plaintiffs' claim, the transfer to the Commission is neither a futile exercise, nor a bar to presentation of their claims to the court. The trial court's order will permit the Commission, which has expertise, to explain its approval of the layoff plan in question and its reasons for accepting or rejecting plaintiffs' contrary view of what our constitutionally mandated merit and fitness system requires. The Commission's decision will undoubtedly inform any decision this court may be called upon to render should plaintiffs opt to appeal the Commission's determination, as they may pursuant to Rule 2:2-3(a)(2).

Affirmed.