IN THE MATTER OF PHILLIP CHERRY FIRE FIGHTER

NOT FOR PUBLICATION WITHOUT THE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 PHILLIP CHERRY,

FIRE FIGHTER (M2320H), ASBURY PARK.

______________________________________

December 31, 2014

Submitted December 9, 2014 Decided

Before Judges Yannotti and Hoffman.

On appeal from the New Jersey Civil Service Commission, Docket No. 2013-530.

Byrnes, O'Hearn & Heugle, LLC, attorneys for appellant Phillip Cherry (Sean F. Byrnes, on the briefs).

Ruderman & Glickman, P.C., attorneys for respondent City of Asbury Park (Steven S. Glickman, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Phillip Cherry ("Cherry") appeals from a final determination of the Civil Service Commission ("Commission"), which rejected his challenge to decisions by the City of Asbury Park ("City") to select other eligible candidates for appointment to the position of firefighter. We affirm.

This appeal arises from the following facts. The Department of Personnel announced an open-competitive examination for a firefighter, with a closing date of August 31, 2006. The examination resulted in an eligible list consisting of thirty-four names. Cherry ranked eighteenth on the list. In December 2007, a certification naming ten persons was issued to the City, which appointed the first two ranked veteran eligibles and requested removal of the person ranked eighth.

In October 2008, another certification was issued and included thirty-three names, including Cherry who was the sixteenth eligible. The City appointed the first listed veteran eligible and several non-veteran eligibles. It requested the removal of several non-veteran eligibles, and bypassed Cherry and a non-veteran eligible.

In January 2010, a certification was issued to the City with five names, including Cherry, who was the second listed non-veteran eligible. The City appointed the fourth listed non-veteran eligible. It requested the removal of the first, third and fifth listed non-veteran eligibles, and bypassed Cherry.

Cherry appeared as the first listed non-veteran eligible on the September 20, 2011 certification. The City appointed F.B., who was the second listed non-veteran eligible, effective November 16, 2011. The City indicated that F.B. was selected because he already held a Firefighter I Certification (the "Certification") and therefore it would not have to pay him to attend the Fire Academy.

Cherry appealed the bypass, arguing that he had been passed over three times without legitimate reasons. The Division of Classification and Personnel Management in the New Jersey Department of Personnel (the "Division") upheld the bypass, noting that the City had appointed F.B. because he possessed the Certification.

Cherry appealed the Division's decision to the Commission, arguing that he did not believe he had been bypassed for legitimate reasons. Cherry said he also possessed the Certification. In addition, he claimed the other candidates were chosen due to "nepotism or bias." In response, the City maintained that Cherry had not been recommended for appointment due to information in his background report.

According to the City, the report revealed that Cherry had been arrested in 2008 for disorderly conduct and pled guilty to a downgraded charge of violating of a municipal ordinance. Since 2003, Cherry had received numerous summonses for speeding, careless driving, unsafe operation of a motor vehicle, failure to wear a seat belt, using a hand-held cell phone while driving, and driving without a license, registration or insurance identification in his possession. Cherry's driver's license and registration had been suspended twice. He had six points on his license. The City denied Cherry's other allegations.

Cherry responded by stating that initially the City had not cited the background report as a reason for its bypass decisions. He said he was never removed from the employment process and never given an opportunity to explain or defend the results of the background check. He said the information in the report did not justify the bypass decisions in 2008 and 2010, which were made before the background check was completed. He insisted the City's decisions to appoint others from the lists were due to nepotism and bias.

On May 21, 2013, the Commission issued its final decision on the appeal. The Commission determined that Cherry's challenges to the City's 2008 and 2010 bypass decisions were untimely, because N.J.A.C. 4A:2-1.1(b) required that any appeal from those decisions be taken within twenty days of the decisions being challenged. The Commission found that Cherry had not shown good cause pursuant to N.J.A.C. 4A:2-1.1(c) to extend the time for an appeal.

The Commission then addressed Cherry's appeal regarding the bypass in 2011. The Commission found that the City had legitimate reasons for bypassing Cherry, and his claim that the bypass was due to nepotism or bias was not supported by the record. This appeal followed. Cherry argues that the Commission's decision is arbitrary, capricious and unreasonable and lacks support in the record as a whole.1

The scope of our review in an appeal from a final decision of an administrative agency is limited. In re Herrmann, 192 N.J. 19, 27 (2007) (citing In re Carter, 191 N.J. 474, 482 (2007)). We must consider

(1) whether the agency's action 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.

[Id. at 28 (citing Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

If the agency's decision satisfies those criteria, the court should give "substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid. (citations omitted).

"The New Jersey Constitution prescribes that Civil Service appointments '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.'" In re Foglio, 207 N.J. 38, 40 (2011) (citing N.J. Const. art. VII, 1, 2). The constitutional provision is implemented by the Civil Service Act (the "Act"), N.J.S.A. 11A:1-1 to 12-6, and the regulations promulgated pursuant to the Act, N.J.A.C. 4A:4-1.1 to 7.12. Ibid.

The Act establishes an examination process for Civil Service appointments. Id. at 44 (citing N.J.S.A. 11A:4-2). "After the examination, an eligible list is published ranking all passing candidates by score, with special ranking rules for veterans and for tie scores." Ibid. (citing N.J.A.C. 4A:4-3.2). "When an appointing authority requests a list of candidates for a vacant position, the Commission will issue a certification 'containing the names and addresses of the eligibles with the highest rankings on the appropriate list.'" Ibid. (quoting N.J.A.C. 4A:4-4.2(a)).

The so-called "Rule of Three" allows "'an appointing authority to select one of the three highest scoring candidates from an open competitive examination.'" Id. at 45 (quoting Local 518, N.J. State Motor Vehicle Emps. Union v. Div. of Motor Vehicles, 262 N.J. Super. 598, 603 (App. Div. 1993)). "Once the appointing authority exercises its discretion and selects the candidate(s), the regulations . . . require that it file a report with the [Department of Personnel]." Id. at 46 (citing N.J.A.C. 4A:4-4.8(b)).

The appointing authority has "discretion to bypass a higher-ranked candidate 'for any legitimate reason based upon the candidate's merit.'" Id. at 47 (citing In re Hruska, 375 N.J. Super. 202, 210 (App. Div. 2005)). A bypassed candidate may challenge the appointing authority's action, by appealing the decision to the Commission. Id. at 47 (citing N.J.A.C. 4A:2-1.1). "The burden of proving unlawful, arbitrary, or capricious action is on the appellant." Ibid. (citing N.J.A.C. 4A:2-1.4(c)).

We are convinced that the record supports the Commission's determination that Cherry had not carried his burden of showing that the City's 2011 hiring decision was unlawful, arbitrary or capricious. Although the first explanation the City provided for its bypass decision was incorrect, the City later cited the results of Cherry's background check for its decision.

As noted, the background check revealed that Cherry pled guilty to a municipal violation and had numerous driving violations. His driver's license and registration had been suspended twice, and he had six points on his license. The Commission properly found that this information provided legitimate reasons for the 2011 bypass decision.

Affirmed.

1 We note that in his brief Cherry does not argue that the Commission erred by finding that his challenges to the City's bypass decisions in 2008 and 2010 were untimely. Thus, any challenge to that part of the Commission's decision is deemed to have been waived. See Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001).