IN THE MATTER OF DAVID NILAND, POLICE CHIEF, CLIFTON

NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
  internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-1775-20

IN THE MATTER OF DAVID
NILAND, POLICE CHIEF
(PM0169A), CLIFTON.
___________________________

                Argued March 2, 2022 – Decided March 16, 2022

                Before Judges Hoffman, Whipple, and Geiger.

                On appeal from the New Jersey Civil Service
                Commission, Docket No. 2020-2726.

                Robert K. Chewning argued the cause for appellant
                David Niland (McLaughlin & Nardi, LLC, attorneys;
                Robert K. Chewning and Maurice W. McLaughlin, on
                the briefs).

                Thomas A. Abbate argued the cause for respondent
                City of Clifton (DeCotiis, Fitzpatrick, Cole & Giblin,
                LLP, attorneys; Thomas A. Abbate, of counsel;
                Gregory J. Hazley and Angelo J. DeFlora, on the
                brief).

                Matthew J. Platkin, Acting Attorney General, attorney
                for respondent New Jersey Civil Service Commission
                (Pamela M. Ullman, Deputy Attorney General, on the
                statement in lieu of brief).

PER CURIAM
      Appellant David Niland appeals from the final administrative action of

the New Jersey Civil Service Commission (Commission of CSC) upholding

the bypass of his name on the certified eligible list for Police Chief of the City

of Clifton Police Department (CPD). We affirm.

      We take the following facts from the record. In February 2020, the City

of Clifton (City) announced a vacancy for Police Chief. A promotional exam

was called. The Commission issued a list of three captains certified as eligible

to take the exam – Captain Niland, Captain Christopher Stabile, and Captain

Thomas Rinaldi, who was serving as Acting Police Chief.

      Under the City's form of government, City Manager Dominick Villano

was the appointing authority and, in that capacity, appointed personnel to

positions in the CPD upon resolution of the City. The so-called Rule of Three

regulation affords discretion to the City in selecting the new Police Chief from

the top three eligible candidates, where none of the eligible candidates is a

military veteran. N.J.A.C. 4A:4-4.8(a)(3).

      On February 7, 2019, Villano and City Personnel and Equal Employment

Opportunity Officer Douglas Johnson met with the eligible candidates to

discuss the promotional process.      Niland alleges that during the meeting,

Villano stated that the promotional exam scores would determine the selection




                                                                           A-1775-20
                                        2
of Police Chief to avoid promotion based on an "improper basis" and did not

mention that an interview process would be used.

      Following the promotional exam, the Commission certified a list of two

eligible candidates – Niland and Rinaldi. Niland scored 79.58 on the exam,

Rinaldi scored 77.87. Neither is a veteran.

      Niland and Rinaldi were interviewed by Villano and Johnson and asked

the same questions.    The interview's weight and grading method were not

explained.

      Niland and Rinaldi were both well-respected, longtime members of the

CPD. Their exam scores were only 1.71 points apart. They each presented

extensive but materially different qualifications.

      Rinaldi was a twenty-five-year veteran of the CPD. He had served in

several Divisions and every Bureau in the CPD, including Administrative

Services, Field Operations, and Investigations. Rinaldi had received several

commendations, achieved various certifications, and completed advanced

training. In addition, he served as Acting Police Chief during the vacancy

period, which took place during the COVID-19 pandemic.

      Niland had been a police officer for twenty-five years, all but three of

those years with the CPD. He too had achieved various certifications and




                                                                       A-1775-20
                                        3
completed advanced training. Niland had served in two of the three bureaus of

the CPD, Field Operations and Administrative services.

      Villano certified that "[b]ased on Rinaldi's comprehensive and overall

experience, and his positive qualities and skills, [he] determined Rinaldi was

the best fit and most meritorious for the appointment to Police Chief." Villano

noted that "Acting Chief Rinaldi was immediately put to the test amid the

COVID-19 pandemic this year, which caused significant scheduling changes in

the [CPD], and has performed his duties successfully."       Villano bypassed

Niland and appointed Rinaldi as Acting Police Chief, pending formal

appointment by the City. Thereafter, Rinaldi was formally appointed Police

Chief effective May 1, 2020.

      On June 15, 2020, Niland appealed to the Commission, challenging the

bypass under the Rule of Three for promotion as Police Chief. Niland claimed

he was the superior candidate for Police Chief and had more years of service

as a police officer, superior work assignments, and more extensive training.

Niland alleged that contrary to indicating that the promotion would be based

on the test scores, the City ignored his qualifications and promoted Rinaldi

based on favoritism, nepotism, and Rinaldi's political connections and

relationships. Niland contended that that no weight should have been placed

on the candidate's performance during the interview because the City failed to



                                                                        A-1775-20
                                       4
demonstrate that the interview process was structured, objective, and uniform

for each candidate. Niland requested that his appeal be referred to the Office

of Administrative Law (OAL) as a contested case for hearing.

      The City contended that its selection was based on legitimate criteria in

accordance with Civil Service law. It noted that each candidate was asked the

same questions during separate interviews. The City averred that the selection

was based, in part, on Rinaldi's experience serving in every Bureau within the

CPD during his twenty-five-year tenure, in contrast to Niland having only

served in two Bureaus. The City asserted that it considered Rinaldi's overall

experience and positive qualities and skills, and determined Rinaldi was the

"best fit and most meritorious for appointment to Police Chief." The City also

considered Rinaldi's successful service as Acting Police Chief during the

COVID-19 pandemic. The City argued that Niland offered only generalized

accusations of alleged ulterior motives for the promotion that were devoid of

any factual support and fell short of showing that the decision to bypass Niland

was based on an improper motive.

      On January 22, 2021, the Commission issued a final administrative

action denying Niland's appeal.         After considering the briefing and

certifications submitted by the parties, the Commission provided the following

analysis:



                                                                         A-1775-20
                                       5
      Initially, bypass appeals are treated as reviews
of the written record. See  N.J.S.A. 11A:2-6(b).
Hearings are granted in those limited instances where
the Commission determines that a material and
controlling dispute of fact exists that can only be
resolved through a hearing. See N.J.A.C. 4A:2-1.1(d).
For the reasons explained below, no material issue of
disputed fact has been presented that would require a
hearing. See Belleville v. Dep't of Civ. Serv.,  155 N.J. Super. 517 (App. Div. 1978).

        N.J.S.A. 11A:4-8,  N.J.S.A. 11A:5-7, and
N.J.A.C. 4A:4-4.8(a)(3)(ii) allow an appointing
authority to select any of the top three interested
eligibles on a promotional list, provided that no
veteran heads the list. Moreover, it is noted that the
appellant has the burden of proof in this matter. See
N.J.A.C. 4A:2-1.4(c).

      In cases of this nature where dual motives are
asserted for an employer's actions, an analysis of the
competing justifications to ascertain the actual reason
underlying the actions is warranted. See Jamison v.
Rockaway Twp. Bd. of Educ.,  242 N.J. Super. 436
(App. Div. 1990). In Jamison, [id.] at 445, the court
outlined the burden of proof necessary to establish
discriminatory    or    retaliatory    motivation    in
employment matters. Specifically, the initial burden of
proof in such a case rests on the complainant who
must establish discrimination or retaliation by a
preponderance of the evidence. Once a prima facie
showing has been made, the burden of going forward,
but not the burden of persuasion, shifts to the
employer to articulate a legitimate non-discriminatory
or non-retaliatory reason for the decision. If the
employer produces evidence to meet its burden, the
complainant may still prevail if he or she shows that
the proffered reasons are pretextual or that the
improper reason more likely motivated the employer.
Should the employee sustain this burden, he or she has

                                                          A-1775-20
                          6
established a presumption of discriminatory or
retaliatory intent. The burden of proof then shifts to
the employer to prove that the adverse action would
have taken place regardless of the discriminatory or
retaliatory motive. In a case such as this, where the
adverse action is failure to promote, the employer
would then have the burden of showing, by
preponderating evidence, that other candidates had
better qualifications than the complainant.

       Since only non-veterans were listed on the
certification, it was within Clifton's discretion to
select any of the two interested eligibles on the
certification. Nevertheless, the appellant alleges that
he was bypassed for the improper reasons of
favoritism, nepotism and political connections and
relationships.    However, the appellant has not
provided any substantive evidence beyond mere
allegations that his bypass was motivated by such
improper reasons. Moreover, Clifton has presented
legitimate reasons for bypassing the appellant and
selecting [Rinaldi]. In this regard, [Rinaldi], unlike
the appellant, served in every division of the Police
Department. It is of no moment that Clifton may have
used the term "division" when it should have used the
term "bureau." Even assuming that "bureau" is the
correct term, the appellant still acknowledges that
[Rinaldi] has served in every bureau, while the
appellant has served in two of the Police Department's
three bureaus.      Additionally, Clifton points to
[Rinaldi's] successful performance of his duties while
serving as "Acting" Police Chief. See [In re] Donald
Fillinger (CSC, decided December 16, 2009) ([a]bsent
a showing that another individual was selected for an
"acting" position based on an improper reason, [the]
Commission determined it was appropriate for
appointing authority to rely on experience gained in
the "acting" position when exercising its discretion
under the "Rule of Three"). [Rinaldi's] experience in
the foregoing respects is not in dispute.

                                                          A-1775-20
                          7
      Neither has the appellant shown that Clifton's
proffered reasons were pretextual. For example, the
appellant claims that no mention was made at the
February 7, 2019 meeting that an interview would take
place; . . . that that this was the first time that Clifton
used an interview process in a police promotion; and
that the interview was unstructured. It should be
emphasized though that appointing authorities are
permitted to interview candidates and base their hiring
decision on the interview.           This is within the
appointing authority's discretion and may apply to all
positions, including Police Chief.               However,
interviews, whether structured or not, are not required.
See [In re] Nicholas R. Foglio (CSC, decided February
22, 2012). It is within the appointing authority's
discretion to choose its selection method, i.e., whether
or not to interview candidates. See e.g., [In re] Angel
Jimenez (CSC, decided April 29, 2009); [In re] Abbas
J. Bashiti (CSC, decided September 24, 2008); [In re]
Paul H. Conover (MSB, decided February 25, 2004);
[In re] Janet Potocki (MSB, decided January 28,
2004).       Thus, since conducting interviews is
discretionary, any purported lack of structure in the
interview is not cause to find that the appellant's
bypass was improper. So long as the hiring decision is
in compliance with N.J.A.C. 4A:4-4.8(a)[(3)], the
Commission cannot find that the interview was
conducted inappropriately. In this case, the record is
clear that Clifton interviewed both candidates and
considered their qualifications. In this regard, it is
evident that Clifton interviewed the appellant, and his
experience was evaluated in comparison with
[Rinaldi's], as noted earlier. The appellant does not
substantively dispute Clifton's representation that both
candidates were asked the same questions. In short,
even assuming that this was the first time that Clifton
used an interview process for a police promotion, the
Commission lacks any substantive basis to conclude
that Clifton instituted such process for any improper

                                                              A-1775-20
                            8
reason or that the format of the process establishes
that the appellant was improperly bypassed. Further,
even assuming that the City Manager represented on
February 7, 2019 that the candidate who scored the
highest on the examination would be selected, the
appellant has not established that such statement had
any binding effect or that the City Manager changed
his mind for any improper reason.

       Additionally, even assuming, arguendo, that the
appellant is more qualified for the position at issue,
Clifton still has selection discretion under the "Rule of
Three" to appoint a lower-ranked eligible absent any
unlawful motive. See N.J.A.C. 4A:4-4.8(a)[(3)]; [In
re] Nicholas R. Foglio, Fire Fighter (M2246D), Ocean
City,  207 N.J. 38, 49 (2011). [Cf.] In re Crowley,  193 N.J. Super. 197 (App. Div. 1984) (Hearing granted for
individual who alleged that bypass was due to anti-
union animus); Kiss v. Dep't of Cmty. Affs.,  171 N.J.
Super. 193 (App. Div. 1979) (Individual who alleged
that bypass was due to sex discrimination afforded a
hearing). Moreover, the appellant does not possess a
vested property interest in the position. In this regard,
the only interest that results from placement on an
eligible list is that the candidate will be considered for
an applicable position so long as the eligible list
remains in force. See Nunan v. Dep't of Pers.,  244 N.J. Super. 494 (App. Div. 1990). The appellant has
not presented any substantive evidence regarding his
bypass that would lead the Commission to conclude
that the bypass was improper or an abuse of Clifton's
discretion under the "Rule of Three." Moreover,
Clifton presented legitimate reasons for the appellant's
bypass that have not been persuasively refuted.
Accordingly, a review of the record indicates that
Clifton's bypass of the appellant's name was proper,
and the appellant has not met his burden of proof in
this matter.




                                                             A-1775-20
                            9
      This appeal followed.    Appellant raises the following points for our

consideration:

             I. STANDARD OF REVIEW.

             II. THE   COMMISSION     SHOULD   HAVE
             REFERRED THIS MATTER TO THE OAL BASED
             ON THE MATERIAL FACTS IN DISPUTE.

             III. CLIFTON'S  REASON TO   BYPASS
             APPELLANT WAS UNLAWFUL, ARBITRARY,
             AND CAPRICIOUS.

      We affirm the denial of appellant's appeal without an evidentiary hearing

substantially for the reasons expressed by the Commission in its written

decision.   The Commission's final administrative action "is supported by

sufficient credible evidence on the record as a whole" and does not warrant

extended discussion. R. 2:11-3(e)(1)(D). We add the following comments.

      Our scope of review of the final administrative action of an agency is

limited. Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,  206 N.J. 14, 27

(2011).     "[A] 'strong presumption of reasonableness attaches'" to the

Commission's decision. In re Carroll,  339 N.J. Super. 429, 437 (App. Div.

2001) (quoting In re Vey,  272 N.J. Super. 199, 205 (App. Div. 1993), aff'd,

 135 N.J. 306 (1994)). The party challenging the final administrative action has

the burden to demonstrate grounds for reversal. Lavezzi v. State,  219 N.J.
 163, 171 (2014) (citing In re J.S.,  431 N.J. Super. 321, 329 (App. Div. 2013)).



                                                                         A-1775-20
                                      10
      "We will not set aside the determination of an administrative agency"

unless the challenger clearly demonstrates that the decision was "arbitrary,

capricious, unsupported by substantial credible evidence contained in the

record, or in violation of express or implicit legislative policy ." Carroll,  339 N.J. Super. at 437.    When reviewing an agency decision, we examine (1)

whether the agency action violated "express or implied legislative policies,"

(2) whether there is substantial evidence in the record to support the agency's

decision, and (3) whether in applying the law to the facts, the agency reached a

conclusion "that could not reasonably have been made on a showing of the

relevant factors." Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n,  234 N.J. 150, 157 (2018). Where an agency's decision satisfies these criteria, we

accord substantial deference to the agency's fact-finding and legal conclusions,

recognizing "the agency's 'expertise and superior knowledge of a particular

field.'" Circus Liquors, Inc. v. Governing Body of Middletown Twp.,  199 N.J.
 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr.,  127 N.J. 500,

513 (1992)).

      Niland argues the Commission erred by not referring the appeal to the

OAL as a contested case because there are material facts in dispute regarding

the City's true reasons for changing its promotional process. We disagree.




                                                                          A-1775-20
                                       11
      The Commission may transfer a "contested case" to the OAL for a

hearing. A contested case is defined as:

            [A] proceeding, ... in which the legal rights, duties,
            obligations, privileges, benefits[,] or other legal
            relations of specific parties are required by
            constitutional right or by statute to be determined by
            an agency by decisions, determinations, or orders,
            addressed to them or disposing of their interests, after
            opportunity for an agency hearing . . . .

            [N.J.S.A. 52:14B-2.]

      The Administrative Procedure Act,  N.J.S.A. 52:14B-1 to -31, "does not

create a substantive right to an administrative hearing; it merely provides for a

procedure to be followed in the event an administrative hearing is otherwise

required by statutory law or constitutional mandate." Toys "R" Us v. Twp. of

Mount Olive,  300 N.J. Super. 585, 590 (App. Div. 1997). An agency head has

the exclusive authority to determine whether a case is a contested case within

the intent of the APA.  N.J.S.A. 52:14F-7(a); N.J.A.C. 1:1-4.1; Sloan ex rel.

Sloan v. Klagholtz,  342 N.J. Super. 385, 392 (App. Div. 2001).

      "To establish a constitutional right to a hearing, an individual must show

that there is a genuine dispute of material fact and that he has a

constitutionally protected interest." In re Crowley,  193 N.J. Super. 197 (App.

Div. 1984) (citing Cunningham v. Dep't of Civ. Serv.,  69 N.J. 13, 18-19

(1975)).   "[T]he mere expectancy of employment [is] not an interest of



                                                                          A-1775-20
                                       12
constitutional dimension . . . ." Ibid. (citing Bd. of Regents v. Roth,  408 U.S. 564, 576-77 (1972)). Moreover, "[n]o right accrues to a candidate whose name

is placed on an eligible list." In re Foglio,  207 N.J. 38, 44 (2011) (citing

Crowley,  193 N.J. Super. at 210). "The only benefit inuring to such a person

is that so long as that list remains in force, no appointment can be made except

from that list." Crowley,  193 N.J. Super. at 210.

      Niland did not have a constitutional right to a hearing as his only interest

was his expectation that he would be promoted to Police Chief. Id. at 209.

Nor did Niland have the right to an evidentiary hearing under N.J.A.C. 4A:2-

1.1(d) or  N.J.S.A. 52:14B-2. N.J.A.C. 4A:2-1.1(d) provides in pertinent part

that the Commission will decide an appeal "on a written record" except when a

hearing is required by law or the Commission finds "a material and controlling

dispute of fact exists that can only be resolved by a hearing[.]" When there are

no contested material issues of fact, the matter is not considered a "contested

case." Sloan,  342 N.J. Super. at 392 (citing  N.J.S.A. 52:14B-2(b)).

      Here, the Commission did not base its final decision on credibility

findings and there was no genuine dispute as to any material fact. Rather, the

Commission relied on the undisputed facts in the record that showed the City's

"actual reasons and motivations" for utilizing the Rule of Three to bypass

Niland and promote Rinaldi. The City was permitted to consider Niland and



                                                                           A-1775-20
                                       13
Rinaldi's respective experience and training.     Further, as discussed below,

Niland failed to establish a prima facie case of favoritism, nepotism,

discrimination, or other improper motivation for bypassing him and selecting

Rinaldi.   Therefore, he did not have a right of discovery based on those

unsupported claims. Instead, he made bare, unsupported allegations. Such

unsupported allegations do not warrant an evidentiary hearing.               The

Commission rejected Niland's legal conclusions.

      Niland further argues that the Commission's final agency action is

arbitrary, capricious, and unreasonable. He contends that the City failed to

provide legitimate reasons when it bypassed him on the eligible list. The Civil

Service Act,  N.J.S.A. 11A:1-1 to 12-6, and regulations promulgated thereunder

generally provide for merit-based appointments to positions in the civil

service. Foglio,  207 N.J. at 43-44 (quoting N.J. Const. Art. VII, § 1, ¶ 2).

However, "[t]he Rule of Three, which governs the hiring discretion of the

appointing authority, 'permits 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)). "Under the Rule of

Three, . . . the appointing authority has the discretion to select from among the

top three candidates in filling a vacancy." Ibid. (citing  N.J.S.A. 11A:4-8);



                                                                          A-1775-20
                                       14
accord Terry v. Mercer Cnty. Bd. of Chosen Freeholders,  86 N.J. 141, 149-50

(1981).   "[T]he appointing authority retains discretion to bypass a higher -

ranked candidate 'for any legitimate reason based upon the candidate's merit.'"

Foglio,  207 N.J. at 47 (quoting In re Hruska,  375 N.J. Super. 202, 210 (App.

Div. 2005)).

      If the appointing authority selects a lower-ranked candidate, it is

required to provide a "statement of the reasons 'why the appointee was selected

instead of a higher ranked eligible [candidate.]'" Ibid. (citing N.J.A.C. 4A:4-

4.8(b)(4)). The appointing authority has "broad discretion" to consider a wide

range of subjective factors. Terry,  86 N.J. at 150. The appointment does not

run afoul of our State Constitution if the appointing authority has any

"legitimate reason" for bypassing a higher-ranked candidate. Crowley,  193 N.J. Super. at 214. For example, the appointing authority may rely "on a

preference for a college degree; or the performance of the applicants in the

give-and-take of an interview; or on extraordinary character and references[,]

. . . experience and training.   Each of those reasons would have satisfied

N.J.A.C. 4A:4-4.8(b)(4)." Foglio,  207 N.J. at 49.

      A higher-ranked candidate challenging a bypass "bears the burden of

proving that the appointing authority was motivated by an illegitimate,

unlawful motive." Foglio,  207 N.J. at 56 (citing N.J.A.C. 4A:2-1.4(c)). Once



                                                                        A-1775-20
                                      15
the candidate makes a prima facie showing, the burden of going forward shifts

to the appointing authority to present a legitimate, non-discriminatory reason

for the decision. Jamison,  242 N.J. Super. at 445. Should the appointing

authority meet its burden, the candidate can still prevail if they show that the

articulated reasons are pretextual or that an improper motive was more likely

responsible. Ibid. If the candidate meets that burden, they have established a

presumption of discriminatory intent and the burden shifts to the appointing

authority. Id. at 446. The appointing authority must then prove that the action

would have taken place regardless of the discriminatory motive, typically by

showing that the other candidates had better qualifications. Ibid.

      Here, the record supports the Commission's determination that the City

properly exercised its discretion under the Rule of Three when it bypassed

Niland.   The Commission found the City had the discretion to conduct

interviews as part of the promotional process and that there was no evidence in

the record to suggest the interviews were pre-textual.      Nor was there any

evidence that the interviews were conducted inappropriately.         Moreover,

Villano's earlier statement that the test scores would be determinative did not

preclude the City from interviewing candidates, even if the City had not used

interviews for a police promotion. Niland produced no evidence that the City




                                                                         A-1775-20
                                       16
used the interviews "for any improper reasons or that the format of the process

establishes that Niland was improperly bypassed."

      The Commission also rejected Niland's assertions that the City's bypass

decisions were due to invidious reasons. The Commission noted Niland did

not present any evidence to support his assertion that Rinaldi was appointed

based on political considerations and the City "presented legitimate reasons for

Niland's bypass that have not been persuasively refuted." Unsupported,

generalized complaints of discrimination are insufficient.      Niland has not

alleged he is a member of a protected class or that he was bypassed for an

invidious reason such as his race, gender, ancestry, religion, or anti-union

animus. Niland's claim he was bypassed for invidious reasons lacks sufficient

merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

      The Commission's decision was supported by the record and consistent

with applicable law. We conclude that it did not abuse its discretion when it

denied Niland's appeal, thereby upholding the City's decision to bypass Niland

for promotion to Police Chief without the need for an evidentiary hearing.

      Affirmed.




                                                                          A-1775-20
                                       17