NEW JERSEY STATE TROOPERS FRATERNAL ASSOCIATION and NEW JERSEY STATE TROOPERS NCO ASSOCIATION v. NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY STATE TROOPERS

FRATERNAL ASSOCIATION and

NEW JERSEY STATE TROOPERS

NCO ASSOCIATION,

Appellants,

v.

NEW JERSEY DEPARTMENT OF LAW

AND PUBLIC SAFETY and OFFICE

OF THE ATTORNEY GENERAL,

Respondents.

October 7, 2015

Argued September 16, 2015 Decided

Before Judges Yannotti and St. John.

On appeal from the New Jersey Department of Law and Public Safety.

Michael A. Bukosky argued the cause for appellants (Loccke, Correia & Bukosky, attorneys; Lauren P. Sandy, of counsel and on the brief).

Lisa A. Puglisi, Assistant Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Ms. Puglisi, of counsel; Eric S. Pasternack, Deputy Attorney General, on the brief).

PER CURIAM

New Jersey State Troopers Fraternal Association ("STFA") and New Jersey State Troopers Non-Commissioned Officers Association ("NCOA") appeal from a decision by respondents, New Jersey Department of Law and Public Safety (the "Department") and the Office of the Attorney General of New Jersey (the "Attorney General"), which denied promotions for certain members of the Division of State Police ("Division"). For the reasons that follow, the appeal is dismissed.

I.

We briefly summarize the relevant facts and procedural history. The STFA represents all New Jersey State Troopers holding Trooper and Detective titles. The State and the STFA are parties to a Collective Negotiations Agreement ("CNA"), which was in effect from July 1, 2008, to June 30, 2012. The NCOA represents all New Jersey State Troopers holding the title of Sergeant. The State and the NCOA are parties to a CNA, which also was in effect from July 1, 2008, to June 30, 2012.

The relevant provisions of the CNAs governing the STFA and NCOA are substantially the same. According to the CNAs, the Division must establish the criteria to be met by the candidates for promotion, and the particular weight to be assigned to each. The Division then must apply the criteria to each candidate and prepare a promotional list for each position in order of highest to lowest total score. The CNAs state, "[P]romotions shall be made in order of the highest numerical scores."

However, if the Superintendent of the State Police ("Superintendent") "determines that the candidate with the highest score is not qualified for promotion, that list will no longer be utilized." The CNAs also state that

[i]f the list remains effective for a period after the announced vacancies are filled, subsequently announced similar vacancies may be filled from the remaining list in the order of the highest score subject to the Superintendent's determination that such list shall continue and [be] subject to his judgment that the highest scoring individual(s) on the list is (are) qualified for promotion.

In addition, the CNAs provide that the specified promotional procedures "shall be uniformly applied to all employees." Moreover, "[a]rbitration disputes arising under [these provisions] shall be limited to consideration of the procedures set forth herein. In no case shall an arbitrator consider the propriety of the application of promotional criteria or the selection of the most qualified candidate(s)."

The CNAs further provide that members covered by the agreements may be "formally designated to occupy a position in an acting capacity, which is structured at a higher rank in the then currently published staffing tables of the Division." Members in an out-of-title work assignment at a higher rank receive the rate of pay of the higher rank upon the completion of periods of continuous service. Such members receive this higher rate of specified pay until promoted, or the acting assignment is terminated. The CNAs state, "Any decision to initiate or terminate any acting assignment shall be within the sole discretion of the Superintendent and shall not be subject to any grievance procedure contained in this Agreement."

In November 2011, the Division commenced a promotional process for the Division and, on June 5, 2012, the Superintendent, Colonel Joseph R. Fuentes, submitted a request to Attorney General Jeffrey S. Chiesa seeking permission to promote certain individuals to positions within the Division, including Lieutenant Dewey P. Bookholdt ("Bookholdt"), Sergeant Patrick J. McCall ("McCall"), Sergeant John E. Cardini ("Cardini"), and Sergeant Erik S. Ruczynski ("Ruczynski").

On September 14, 2012, the Division issued the Superintendent's personnel order, which indicated that certain individuals had been promoted, effective September 22, 2012. Bookholdt, McCall, Cardini, and Ruczynski were not on the list of the persons promoted. It appears that Bookholdt, McCall, Cardini, and Ruczynski had been serving in out-of-title positions on an acting basis since 2009-2011. In February 2013, the SFTA and NCOA learned that these individuals would be removed from their acting assignments, effective February 9, 2013.

The STFA and NCOA filed grievances on behalf of Bookholdt, McCall, Cardini, and Ruczynski, challenging application of the promotional procedures to these individuals and their removal from their acting positions.1 The Superintendent denied the grievances, and the STFA and NCOA demanded arbitration. On August 2, 2013, the State filed a scope-of-negotiations petition with the Public Employment Relations Commission ("PERC").

A hearing was held in the matter and, on September 11, 2013, the Superintendent testified. He stated that he had placed certain members in acting positions. The Superintendent submitted their names to the Attorney General and requested that he approve their promotions. The Superintendent believed the persons on the list were qualified for promotion. He later removed Bookholdt, McCall, Cardini and Ruczynski from the list of persons to be promoted, to comply with the Attorney General's decisions on his promotional requests.

On October 10, 2013, the STFA and NCOA filed a notice of appeal which stated that they were appealing from the final agency decision of the Office of the Attorney General, which denied the promotions of "some" Troopers. On December 2, 2013, the STFA and NCOA filed an amended notice of appeal, stating that they were appealing "the final agency decision, as an agency inaction, of the Office of the Attorney General."

On May 2014, PERC granted the State's petition and restrained arbitration of the aforementioned grievances. PERC determined that the removal of Bookholdt, McCall, Cardini, and Ruczynski from their acting assignments represented the exercise of the Superintendent's non-negotiable prerogative to reassign members of the Division. According to PERC, the Superintendent's decision was a policy determination that could not be the subject of a grievance. PERC further found that the Superintendent's decision did not "clearly invoke" the provisions of the CNAs pertaining to promotions.

II.

We first consider whether the appeal was timely filed. Rule 2:4-1(b) provides in pertinent part that "[a]ppeals from final decisions or action of state administrative agencies or officers" must be filed "within [forty-five] days from the date of service of the decision or notice of the action taken."

As we have explained, on June 5, 2012, the Superintendent sent the Attorney General a request to approve promotions for various individuals including Bookholdt, McCall, Cardini, and Ruczynski. Thereafter, the Superintendent issued a personnel order, which indicated that various individuals were promoted, effective September 22, 2012. Bookholdt, McCall, Cardini, and Ruczynski were not promoted.

The Attorney General does not dispute that Bookholdt, McCall, Cardini, Ruczynski were not provided with a copy of the Superintendent's June 5, 2012 promotion request, or the order indicating that certain individuals had been promoted effective September 22, 2012. The Attorney General also does not dispute the claim that Bookholdt, McCall, Cardini and Ruczynski first became aware that the Attorney General had made decisions on the promotion requests when the Superintendent testified concerning the promotions at the September 11, 2013 arbitration proceeding.

As noted previously, the STFA and NCOA filed a notice of appeal, challenging the Attorney General's decision on October 10, 2013. We conclude that the notice of appeal was filed within the time required by Rule 2:4-1(b), because it was submitted within forty-five days after the SFTA and NCOA had notice of the Attorney General's decision on the requests to promote Bookholdt, McCall, Cardini, and Ruczynski.

III.

Since this dispute concerns a decision made by the Attorney General on recommendations to promote members of the Division, we begin our consideration of the appeal by briefly summarizing the statutes pertaining to the Attorney General's action.

The Department has been established as one of the principal departments of the state government, N.J.S.A. 52:17B-1, and the Attorney General is the head of the Department. N.J.S.A. 52:17B-2. The Division was initially created as the Department of State Police, L. 1921, c. 102, 1, codified as N.J.S.A. 53:1-1. However, the Division's functions, powers and duties were later transferred to the Department. L. 1948, c. 439, 6, codified as N.J.S.A. 52:17B-6. The Superintendent is "[t]he executive and administrative head of the Division." N.J.S.A. 52:17B-7. Furthermore, N.J.S.A. 53:1-5.2 states that

Notwithstanding any other provision of law, the rank and grade of any member of the State Police may be changed from time to time, and the number of personnel increased, by the [S]uperintendent of State Police where such change or increase is necessary for the efficient operation of the Division of State Police in the Department of Law and Public Safety; provided, the action of the said [S]uperintendent in making any such change or increase, shall be approved by the head of said department. No such change or increase shall be made unless it can be effected within the limitations of the appropriations for the said division.

Here, it is undisputed that the Superintendent submitted a request to the Attorney General to approve promotions for Bookholdt, McCall, Cardini, Ruczynski, but the Attorney General refused to approve their promotions. The STFA and NCOA argue that, in rejecting the Superintendent's request, the Attorney General acted outside the scope of his authority under N.J.S.A. 53:1-5.2. The SFTA and NCOA assert that the Attorney General may only refuse to approve the Superintendent's recommendation for a change of State Police member's rank or grade if the change cannot be "effected within the appropriations" for the State Police.

In addition, the STFA and NCOA contend the Attorney General never provided any explanation for refusing to approve the promotions of Bookholdt, McCall, Cardini, and Ruczynski. The STFA and NCOA therefore maintain that the Attorney General's decision is arbitrary and capricious. The STFA and NCOA further argue that, in refusing to approve the promotions after the Superintendent concluded that Bookholdt, McCall, Cardini, Ruczynski met the criteria for promotion, the Attorney General and the Department essentially established new promotional criteria.

The STFA and NCOA contend that any new promotional criteria constitute administrative rules that could not be adopted without complying with the rule-making requirements of the Administrative Procedure Act (the "APA"), N.J.S.A. 52:14B-1 to-15. The STFA and NCOA also contend that the Attorney General and the Department refused to promote Bookholdt, McCall, Cardini, Ruczynski without affording them due process.

We are convinced that these issues are not ripe for review at this time. In determining if a controversy is ripe, we consider "(1) the fitness of issues for judicial review[;] and (2) the hardship to the parties if judicial review is withheld at this time." K. Hovnanian Cos. of N. Cent. Jersey, Inc. v. N.J. Dept. of Envtl. Prot., 379 N.J. Super. 1, 9-10 (App. Div.), certif. denied, 185 N.J. 390 (2005) (quoting 966 Video, Inc. v. Mayor & Twp. Comm. of Hazlet Twp., 299 N.J. Super. 510, 515-16 (Law Div. 1995)) (internal quotation marks omitted). We conclude that the issues raised by STPA and NCOA are not fit for review at this time, and deferring consideration of the issues will not be a hardship to the parties.

As we stated previously, the record discloses that on June 5, 2012, the Superintendent included Bookholdt, McCall, Cardini, and Ruczynski on the list of persons who he proposed to promote, and submitted that list to the Attorney General for approval. The record also discloses that, on September 22, 2012, the Division announced promotions for certain individuals but Bookholdt, McCall, Cardini, and Ruczynski were not promoted.

The State acknowledges that, sometime before the promotions were announced, Attorney General Chiesa decided that Bookholdt, McCall, Cardini, and Ruczynski should not be promoted. These individuals apparently were not aware that they had been recommended for promotion, or that the Attorney General had rejected the Superintendent's recommendations. The Attorney General acknowledges that Bookholdt, McCall, Cardini, and Ruczynski only became aware of those decisions when the Superintendent testified at the arbitration proceeding in September 2013.

However, there is nothing in the record indicating that Bookholdt, McCall, Cardini, and Ruczynski ever made formal requests for decisions by the Attorney General concerning his refusal to approve the Superintendent's requests for their promotions. The SFTA and NCOA assert that Bookholdt, McCall, Cardini, and Ruczynski do not know the reasons for the Attorney General's decision, but there is no indication that they ever made specific requests for a written statement of those reasons.

Moreover, the STFA and NCOA claim that the Attorney General applied undisclosed criteria in his promotional decisions, but Bookholdt, McCall, Cardini, and Ruczynski never sought disclosure of any such criteria. They assert that the Attorney General failed to provide them with due process when he rejected the Superintendent's recommendations, but they never asserted a right to be heard before the agency on the Attorney General's promotional decisions.

We note that, in responding to the STFA's and NCOA's arguments on appeal, the State asserts that the Attorney General has "absolute discretion" in the areas of promotion of members of the State Police. In support of that assertion, the Attorney General cites State Troopers Fraternal Ass'n v. State, 62 N.J. 302, 304 (1973). However, in that case, the Court merely held that the members of the State Police are in the unclassified service and the Division need not conduct promotional examinations for vacancies in the officer ranks. Id. at 303-04.

The Court also stated that, in view of its decision, it need not consider the STFA's contention that delegation of "absolute discretion" to the Superintendent with regard to promotions was invalid for lack of standards. Id. at 304. The Court added that

[w]hile the very concept of the unclassified service necessarily implies discretion in the appointing power, it is always desirable, even if not legally required, for that authority, especially in a body as large as the State Police and where membership morale is so important, to announce in advance the considerations for promotion insofar as they may reasonably be articulated and to give the opportunity, unless definitely infeasible, to a [member] to be advised of why he [or she] was not considered eligible for or failed of promotion.

[Id. at 304-05.]

As we noted previously, the State's CNAs with the STFA and NCOA in effect from July 1, 2008, to June 30, 2012, require the Division to prescribe the criteria for promotions, and afford members covered by the agreements limited opportunities to file grievances regarding the promotional procedures and promotions. The CNAs do not give covered members the right to file a grievance challenging a decision by the Attorney General to deny a promotion.

As the Supreme Court stated, however, even if not legally required, it might be reasonable to inform members of the State Police why they were not "considered eligible for or failed of promotion." Ibid. We also note that if the Superintendent continues to believe Bookholdt, McCall, Cardini, and Ruczynski should not be promoted, the STFA and NCOA could request the present Attorney General to reconsider the earlier decisions.

If the present Attorney General refuses to do so, the STFA and NCOA may ask the Attorney General for a statement of the reasons for his decision. If the Attorney General takes the position that he has no obligation to provide reasons for rejecting the Superintendent's recommendations, or afford Bookholdt, McCall, Cardini, and Ruczynski any administrative remedy to challenge his decisions, he should provide a statement of the legal basis for that decision.

Appeal dismissed.

1 A grievance also was filed on behalf of another member of the State Police. This individual is not involved in this appeal.