EDWARD WHEELER v. MAYOR and COUNCIL OF THE TOWNSHIP OF EDISON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EDWARD WHEELER,

Plaintiff-Respondent,

v.

MAYOR and COUNCIL OF THE

TOWNSHIP OF EDISON, BRIAN

COLLIER, TOWNSHIP OF

EDISON'S POLICE DIRECTOR,

and THOMAS BRYAN, CHIEF

OF POLICE,

Defendants-Respondents.

_______________________________

FRANK TODD,

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-10306-09.

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

Stephen E. Klausner argued the cause for respondent Edward Wheeler.

Victoria A. Flynn argued the cause for respondents Mayor and Council of the Township of Edison, Brian Collier, Township of Edison's Police Director, and Thomas Bryan, Chief of Police (DeCotiis, FitzPatrick & Cole, LLC, attorneys; Ms. Flynn, on the brief).

PER CURIAM

Appellant, Frank Todd, appeals from the trial court order denying his motion to intervene and the grant of summary judgment to plaintiff. We reverse in part and affirm in part.

Todd moved to intervene in the present matter brought by Edward Wheeler, whose complaint, filed in December 2009, sought to nullify and invalidate three promotions from sergeant to lieutenant within the Edison Township Police Department approved on November 9, 2009, days after the incumbent mayor lost re-election. In his evaluation by the command staff, Wheeler, who was not promoted, achieved the same score as the three sergeants who were promoted. In addition, he had more seniority as a police officer and in the rank of sergeant than the three sergeants promoted. Todd was one of the sergeants promoted to lieutenant. Within days of assuming her office, the new mayor rescinded the promotions, resulting in Todd's demotion. In February 2010, Todd commenced his own action against the Township and new mayor challenging his demotion.

Two and one-half years after filing his complaint, Wheeler moved for summary judgment, six weeks before the September 2012 trial date. Todd moved to intervene in the action on August 15, 2012. Although the Township did not oppose Wheeler's motion, it opposed Todd's motion to intervene. After conducting oral argument, the motion judge reserved his decision. He subsequently issued a written opinion denying Todd's motion to intervene, but granting Wheeler's motion for summary judgment. The present appeal followed.

On appeal, Todd contends the trial court erred in denying his motion to intervene solely upon the basis that it was untimely. In addition, Todd urges his November 4, 2009 promotion was fully consistent with the Township's ordinance governing promotions. Finally, Todd contends the decisions upon which the court relied in concluding the police director was required to provide a statement of reasons for his decisions do not support the court's determination.

The factual record upon which the summary judgment determination was reached is largely undisputed. It is the application of those facts to the law which Todd challenges. In that regard, we owe no deference to the trial court's legal determination. Henry v. New Jersey Dep't of Human Services, 204 N.J. 320, 330 (2010).

Intervention as of right, pursuant to Rule 4:33-1, must be granted if all requirements for intervention have been met:

The applicant must (1) claim "an interest relating to the property or transaction which is the subject of the transaction," (2) show he is "so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest," (3) demonstrate that the "applicant's interest is not "adequately represented by existing parties," and (4) make a "timely" application to intervene.

[Meehan v. K.D. Partners, L.P., 317 N.J. Super. 563, 668 (App. Div. 1998) (quoting Chesterbrooke Ltd. Partnership v. Planning Bd., 237 N.J. Super. 118, 124 (App. Div.), certif. denied, 118 N.J. 234 (1989)).]

The motion judge based the decision to deny intervention solely upon his determination the motion was untimely. The court particularly noted that in April 2010, two months after Todd filed his complaint, the Township moved to consolidate all of the actions. Todd was provided a copy of Wheeler's complaint but did not seek to intervene at that point.

Whether the application to intervene was timely should not be measured solely in the context of the passage of time. Rather, timeliness should be assessed based upon the passage of time as well as any other relevant factor. Here, with the court's concurrence, Todd agreed to stay proceedings in his complaint until the resolution of the Wheeler action as well as the action brought by another officer, Bruce Polkowitz, who was passed over for promotion from lieutenant to captain and whose complaint also sought to nullify and invalidate the November 4, 2009 promotions. On June 1, 2012, the court granted Polkowitz partial summary judgment, vacating the promotions made on November 4, 2009, from lieutenant to captain. Wheeler filed his motion for partial summary judgment, setting aside the November 4, 2009 promotions from sergeant to lieutenant the following month on July 9, 2012.

The trial court, in its recitation of the factual and procedural history, stated: "The promotion process at issue in Polkowitz is the same promotion process challenged herein, except that Wheeler challenges the promotions made from the rank of sergeant to lieutenant." The court granted a similar motion to intervene in the Polkowitz motion filed by another officer aggrieved when the mayor rescinded the promotions. That motion, however, was unopposed.

Two factors illustrate the error in the court's conclusion that the motion was untimely. First, with the court's concurrence, Todd agreed to stay the proceedings in his complaint until the Polkowitz/Wheeler matters were resolved, presumably because all parties agreed that resolution of the issues raised in those matters may impact the resolution of the issues raised in the other complaints. Second, the Township did not oppose Wheeler's motion. Thus, there was no party participating in the proceedings who could adequately represent his interests. Under these circumstances and given the court's determination the preceding month relative to the same issues, we do not conclude the motion to intervene was untimely.

Notwithstanding the court's error in denying intervention, the court correctly determined that Wheeler was entitled to summary judgment as a matter of law. Wheeler established a prima facie case of entitlement to promotion, and the Township, admittedly, can provide no explanation why he was rejected in favor of candidates with less seniority, which factor, by ordinance and statute, is to be given preference. Thus, Todd's intervention would not have altered the outcome. Consequently, the court's error in denying intervention was not harmful. R. 2:10-2.

Turning to the merits,1 we first reiterate the well-settled legal principle guiding our review of the Township's action, which is that we determine whether the action taken by the municipality was arbitrary, capricious or unreasonable. See Burke v. Twp. of Franklin, 261 N.J. Super. 592, 598 (App. Div. 1993). Thus, the purpose of our review, as was the purpose of the trial court's review, is to determine whether there is a rational basis to support the Township's actions. Borough of Glassboro v. Fraternal Order of Police, 197 N.J. 1, 12 (2008). As long as there is "an appropriate record to justify the appointment" of the candidates, the promotional decisions will be upheld and we may not substitute our judgment for that of the Township in this regard. Ibid.

Township Ordinance 2-29.6 ("Ordinance") enumerates the promotional criteria of sergeant to lieutenant. Section 2-29.6(b)(2) specifically states that

[e]ach member of the command staff will have (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.

[Ibid.]

Pursuant to N.J.S.A. 40A:14-129 ("the statute"):

In any municipality where in Title 11 (Civil Service) of the Revised Statutes is not in effect, and except in cities of the first and second class, a promotion of any member or officer of the police department or force to a superior position shall be made from the membership of such 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.

When ascertaining the Legislature's intent in adopting a statute, we "look first to the plain language of the statute, seeking further guidance only to the extent that the Legislature's intent cannot be derived from the words that it has chosen." Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 264 (2008). Thus, the first step in our analysis requires that we ascribe to the words chosen by the Legislature their ordinary meaning. Marino v. Marino, 200 N.J. 315, 329 (2009). If the language is plain and if its meaning is clear, we do not rewrite it, nor do we "presume that the Legislature intended something other than that expressed by way of the plain language." O'Connell v. State, 171 N.J. 484, 488 (2002).

Guided by these tools of statutory construction, the words "consideration" and "preference" are two distinct concepts the Legislature has included in the statute, with the obvious intention that an officer's seniority on the police force is not simply something the appointing authority must consider, but for which a preference is mandated when considering individuals for promotion. We do not interpret the use of the word "preference" in this context as meaning that seniority controls where there is a tie, but that among the considerations, seniority is to be given "preference."

Wheeler, as well as the sergeants promoted to lieutenants in November, all received ten votes from the command staff. Wheeler was hired in 1988, Todd in 1993, Masi in 1994, and Schreck in 1985. Therefore, Wheeler had seniority over two of the three sergeants promoted, and pursuant to N.J.S.A. 40A:14-129, Police Director Collier was required to give preference to Wheeler's seniority in his consideration of the candidates. Whether he gave such consideration is not reflected in the record because there is no explanation from Police Director Collier.

Wheeler's rating by the command staff and his seniority established that he made a prima facie case that the Township's decision was arbitrary. Glassboro, supra, 197 N.J. at 10. The Township was therefore required to come forward with the "simplest explanation on the record of some rational reason for its decision." Ibid. Former Police Director Collier unexpectedly passed away within one month after Wheeler filed his complaint. In an email from Police Director Collier to Wheeler, who was making inquiries about the promotions from sergeant to lieutenant, Police Director Collier stated, "I base my decision on promotions on a number factors. The aforementioned counsel [meaning command staff votes] is one part of the equation. It is not the end-all." Beyond this email, the record is devoid of any other explanation. This explanation is not an explanation inasmuch as it did not articulate why the other candidates were selected over Wheeler. Ibid.

What is contemplated under Glassboro is not simply an explanation of what factors were considered generally as to all candidates, but the "simplest [of] explanation" as to why he was not promoted. Ibid. As in Glassboro, the conclusion that this record is "bare" as to the Township's reasoning for elevating the other sergeants over Wheeler is "unassailable." Ibid. .

We emphasize, as we have in the companion Polkowitz decision, Polkowitz v. Township of Edison, No. A-0853-12 (App. Div. Aug. 22, 2014), we also decide today, that our decision here must not be construed as removing from the promotion process the subjective component that is implied in any promotion process. Ibid. (stating "this case does not implicate public policy, or the highly deferential standard of review. Nor is it a commentary on [a municipality's] entirely proper choice to incorporate subjective components into its promotional procedure"). 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.

Reversed in part, affirmed in part.

1 Because Todd has briefed the merits of the court's decision granting summary judgment in favor of Wheeler, there is no need to remand to the trial court to permit Todd an opportunity to re-argue his opposition to summary judgment, which we review guided by the same standards as the trial court. CBS Outdoor v. Lebanon Plan. Bd., 414 N.J. Super. 563, 577 (App. Div. 2010).