BRUCE A. POLKOWITZ v. TOWNSHIP OF EDISON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BRUCE A. POLKOWITZ,

Plaintiff-Respondent,

v.

TOWNSHIP OF EDISON, JUN CHOI,

MAYOR OF THE TOWNSHIP OF

EDISON, BRIAN COLLIER, POLICE

DIRECTOR OF THE TOWNSHIP OF

EDISON, AND THOMAS BRYAN,

CHIEF OF POLICE OF THE TOWNSHIP

OF EDISON, Individually and in

their capacities as officials of

THE TOWNSHIP OF EDISON,

Defendants-Respondents,

and

GREGORY FORMICA,

Plaintiff/Intervenor-

Appellant.

____________________________________

August 22, 2014

Argued March 5, 2014 - Decided

Before Judges Sapp-Peterson, Maven and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1043-09.

Stephen B. Hunter argued the cause for appellant (Detzky, Hunter & DeFillippo, LLC, attorneys; Mr. Hunter, of counsel and on the brief).

Stephen E. Klausner argued the cause for respondent Bruce Polkowitz.

Louis N. Rainone argued the cause for respondents Township of Edison; Jun Choi, Mayor of the Township of Edison; Brian Collier, Police Director of the Township of Edison; and Thomas Bryan, Chief of Police of the Township of Edison (DeCotiis, FitzPatrick & Cole, LLC, attorneys; Victoria A. Flynn, on the brief).

PER CURIAM

This matter arises out of the lame duck promotions of three Edison Township sergeants to lieutenants, and three lieutenants to captains on November 4, 2009, one day after the defeat of the incumbent mayor. Plaintiff, Bruce Polkowitz, who was one of the candidates considered for promotion to captain, was not promoted and commenced an action against defendants, which included a count in lieu of prerogative writs seeking to set aside the promotions as arbitrary and contrary to Ordinance 2-29.6 ("Ordinance"), and N.J.S.A. 40A:14-129. Upon completion of discovery, Polkowitz moved for partial summary judgment on his prerogative writs count. Appellant, Gregory Formica, moved to intervene and to participate in the summary judgment proceeding. The court granted his motion, which was unopposed. Formica, along with Frank Todd, had instituted a separate prerogative writs action after the new mayor rescinded the promotions, but they both consented to a stay of their action until the complaints filed by Polkowitz and the separate action filed by Edward Wheeler, a candidate for promotion to lieutenant who was also passed over for promotion on November 4, 2009, were resolved.

Following oral argument, the court issued a written opinion in which it found that the Township's Police Director, Brian Collier, who made the decisions as to which candidates would be promoted, failed to explain his reasoning. The court reasoned further that in light of the timing of the promotions, near the end of the former mayor's term in office, the Township's decisions were subject to greater scrutiny and, because Polkowitz met all the criteria for promotion, the Township's decision to promote the other lieutenants over Polkowitz was arbitrary, capricious and unreasonable. Formica's appeal of that order was dismissed as interlocutory. Two months later, the court granted the Township's motion for summary judgment on the remaining counts contained in Polkowitz's complaint. Formica filed the present appeal.

On appeal, Formica contends the court erred when it granted partial summary judgment because the November 4, 2009 promotions "were fully consistent with the Township's ordinance governing promotions to the rank of captain and were not arbitrary, capricious and unreasonable." In addition, Formica contends the decisions upon which the court relied in reaching its decision do not, as a matter of law, hold that the Director Collier was required to provide a statement of reasons for his promotional decisions.

We agree that there is no statutory or Township ordinance that requires, as a matter of course, that the police director, in a non-civil service community, articulate his reasons for promoting one candidate over another. However, where, as here, an aggrieved candidate has established a prima facie case of arbitrary, capricious and unreasonable decision-making in the promotion process, some explanation is required. Borough of Glassboro v. Fraternal Order of Police, 197 N.J. 1 (2008). Because Polkowitz established such a prima facie case, and because there is no evidence in the record of any explanation from Director Collier for his decision and no explanation will be forthcoming,1 the promotions must be set aside.

An appellate court's review of an order granting summary judgment is subject to the same standard employed by the trial court. Bauer v. Nesbitt, 198 N.J. 601, 605 n.1 (2009) (citing R. 4:46-2(c)); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). Summary judgment is proper if the record demonstrates that "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Burnett v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009) (citing R. 4:46-2(c)). Issues of law are subject to the de novo standard of review, and the trial court's determination of such issues is accorded no deference. Selective Ins. Co. of Am. v. Hudson E. Pain Mgmt., 210 N.J. 597, 605 (2012) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)).

The Township is a non-civil service municipality, whose criteria for promotion from the rank of lieutenant to the rank of captain are delineated in the Township Code, Section 2-29.7. which provides:

a. Qualifications

1. The candidate must have a minimum of one (1) year in grade as lieutenant to be eligible for promotion to captain.

2. The candidate must be recommended to the command staff for promotion, in writing, by his or her immediate supervisor or his or her division commander.

b. Command Staff Review

1. The command staff will consist of all sworn members of the Edison Police Department at the rank of captain and above.

2. Each member of the command staff will have one (1) vote in a majority-rules system. The person nominated by the command staff for promotion must be approved by the Director of Public Safety. In the event of a tie vote, the Director of Public Safety will make the final decision in conformity with applicable sections of Titles 40 and 40A.

c. Promotional Procedure

1. The command staff will meet and discuss the names of all candidates recommended for promotion.

2. The command staff will consider seniority, job performance, attendance and a review of the candidate's personnel file.

3. After review, the command staff will vote on the candidates and present its results to the Director of Public Safety. The Director of Public Safety will then have final approval on the candidate for promotion.

In a non-civil service municipality such as Edison,

a promotion of any member or officer of the police department or force to a superior position shall be made from the membership of the department or force. Due consideration shall be given to the member or officer so proposed for the promotion, to the length and merit of his service and preference shall be given according to seniority in service.

 
[N.J.S.A. 40A:14-129.]

It is undisputed that plaintiff had more seniority than Formica and the other lieutenants who were promoted. It is equally undisputed that Polkowitz was unanimously recommended for promotion by the command staff, whereas Formica and the other candidates did not receive unanimous votes for promotion from the command staff.

We agree, as Formica argues, the unanimous recommendation from the command staff that Polkowitz be promoted and his seniority did not entitle him to promotion. Gaskill v. Mayor & Comm'rs of Borough of Avalon, 149 N.J. Super. 364, 365 (App. Div. 1977) (noting that seniority "is but an additional factor to be considered on the merits of the evaluation of the individuals for promotion and not a mechanical rule which guarantees promotion to the senior employee"). Nor did the fact that the promotions occurred the day after the municipal elections, where the incumbent mayor was defeated, render the promotions illegal. Thomas v. McGrath, 145 N.J. Super. 288, 293 (App. Div. 1976), rev'd on other grounds, 75 N.J. 372 (1978). However, as we have stated in the companion case we decided today, Wheeler v. Mayor and Council of the Twp. of Edison, No. A-0854-12 (App. Div. Aug. 22, 2014), these are factors that establish a prima facie case of arbitrary decision-making, requiring some explanation, even the "simplest explanation" for the decision to promote the other candidates over Polkowitz. Glassboro, supra, 197 N.J. at 10. No such explanation was provided here, and because of Director Collier's untimely death, further discovery will not bring forth any explanation from him. Moreover, there are no notes from Director Collier that in any way memorialized his thought processes in reaching his promotion decisions.2 Under these circumstances, we conclude the Court's reasoning in Glassboro that in the face of an aggrieved promotion candidate's prima facie showing of arbitrary decision-making, if a "municipality [is unable] to provide even the simplest explanation on the record of some rational reason for its decision, the decision cannot stand." Id. at 10. The Township here concedes it cannot present any justification for its decision and therefore did not oppose Polkowitz's motion.3

Finally, both Police Chief Thomas Bryan and former Mayor Jun Choi were deposed. While both testified to discussing the promotions with Director Collier, those discussions, when viewed in the light most favorable to Formica, Brill v. Guardian Life Ins. Co. of Am., 142 N.J.520, 529-30 (1995), did not include any statements to them from Director Collier why he promoted the three other lieutenants over Polkowitz.

We emphasize that our decision here and in Wheeler, supra, must not be construed as removing subjective components, which the Township is free to incorporate into its promotional process. Glassboro, supra, 197 N.J. at 10. Nor should our decision be construed as requiring, in every instance, a statement of reasons for promotional decisions. We limit our decision to the circumstances presented in both of these cases, namely the fact that both Polkowitz and Wheeler established a prima facie case of arbitrary municipal action, requiring some explanation for its actions. Ibid.

Affirmed.

1 We were advised during oral argument that Director Collier passed away in January 2010.

2 There were handwritten notes included in Formica's appendix, but counsel for both sides confirmed to this panel, during oral argument, these were not handwritten notes of Director Collier.

3 We are completely cognizant that the Township, having rescinded the promotions for budgetary reasons, may not have had any incentive to oppose Polkowitz's motion. However, extensive discovery was undertaken in this case and nothing has been revealed from that discovery from which a contrary conclusion may be reached sufficient to raise a genuinely disputed issue of fact. Moreover, in his appellate brief, Formica does not raise as an argument that summary judgment should have been denied due to incomplete discovery.