NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2268-18T1
IN THE MATTER OF CRAIG G. HOWLETT, POLICE SERGEANT (PM0721P), AND LORI A. SOARES, POLICE CAPTAIN, (PM1255T), BOROUGH OF ROSELLE. _______________________________
Argued telephonically April 21, 2020 – Decided May 15, 2020
Before Judges Yannotti, Currier and Firko.
On appeal from the New Jersey Civil Service Commission, Docket Nos. 2019-687 and 2019-688.
Robert K. Chewning argued the cause for appellants Craig G. Howlett and Lori A. Soares (Mc Laughlin & Nardi, LLC, attorneys; Maurice W. Mc Laughlin and Robert K. Chewning, on the briefs).
Douglas S. Zucker argued the cause for respondent Borough of Roselle (Weiner Law Group LLP, attorneys; Douglas S. Zucker, of counsel and on the brief; Dustin F. Glass, on the brief).
Steven Michael Gleeson, Deputy Attorney General, argued the cause for respondent Civil Service Commission (Gurbir S. Grewal, Attorney General, attorney; Sookie Bae, Assistant Attorney General, of counsel; Steven Michael Gleeson, Deputy Attorney General, on the brief).
PER CURIAM
Craig G. Howlett and Lori A. Soares appeal from a final decision of the
Civil Service Commission (CSC) dated December 21, 2018, which found that
the Borough of Roselle (Borough) did not abuse its discretion in bypassing
Howlett for promotion to the position of Sergeant on PL170170 and Soares for
promotion to the position of Lieutenant on PL170171. We affirm.
I.
In 2006, Howlett began his employment as an officer in the Borough's
police force. He was later certified as eligible for promotion to the position of
Sergeant but bypassed in November 2014 (PL140948), June 2015 (PL150368),
September 2015 (PL150832), and November 2016 (PL161246). Howlett again
applied for promotion to the position of Sergeant and in February 2017, he
ranked first on the certified eligibility list (PL170170).
In March 2017, as part of the Borough's promotional process, the three
members of the Borough's Public Safety Committee (PSC) interviewed four
candidates for the position of Sergeant: Howlett, William D. Lord (who ranked
second), Carmen Olivera-Barnes (ranked third), and Victor Conti (ranked
fourth). Lord and Olivera-Barnes each received total scores of 136, and
A-2268-18T1 2 Howlett's score was 115. The Borough bypassed Howlett and promoted Lord
and Olivera-Barnes.
In 1994, Soares began her employment as a police officer in the Borough.
Soares was certified as eligible for promotion to the position of Lieutenant, but
she was bypassed in November 2016 (PL161247). In February 2017, Soares
was ranked second on the certified eligibility list (PL170171).
In March 2017, the three members of the Borough's PSC interviewed
Soares, Michael Cyktor (ranked first), Brian Brennan (ranked third), and
Michael Sojka (ranked fourth). Chief of Police Gerald J. Orlando recommended
Soares and Cyktor for promotion. Cyktor received a total score of 140, Brennan
138, Soares 131, and Sojka 128. The Borough bypassed Soares and promoted
Cyktor and Brennan.
In April 2017, Howlett filed an administrative appeal with the CSC
challenging the Borough's decision to bypass him for promotion regarding
PL161246 and PL170170. Soares also filed an appeal in April 2017. She
challenged the Borough's decision to bypass her for promotion regarding
PL161247 and PL170171. The parties submitted position papers to the CSC in
support of their respective appeals.
A-2268-18T1 3 Howlett and Soares contended that the PSC's interview process was
inconsistent, undefined, and random, and that the Borough did not have
legitimate reasons for bypassing them for promotion. The Borough asserted,
however, that Howlett's appeal regarding PL161246 and Soares's appeal
regarding PL161247 were untimely and should not be considered. The Borough
also asserted that it correctly applied the applicable civil service rules in
bypassing Howlett and Soares, and properly based those decisions on the scoring
of the candidates in the PSC's interview process.
While the administrative appeals were pending, Orlando wrote to the CSC
and recommended that Howlett and Soares be promoted to the positions they
were seeking. Orlando stated that the Borough implemented the interview
process to circumvent the civil service eligibility list and select candidates who
are "politically connected in various ways[,]" specifically monetary donations
and relationships with local politicians. He said the individuals promoted ahead
of Howlett and Soares "are fine officers" but there was no reason to bypass
Howlett or Soares, "who have impeccable service records."
The CSC issued letters to Howlett and Soares dated January 9, 2018. The
CSC found that Howlett's appeal regarding PL161246 and Soares's appeal
regarding PL161247 were untimely and would not be considered. The CSC then
A-2268-18T1 4 addressed the appeals regarding PL170170 and PL170171, and noted that
effective November 13, 2017, Howlett was promoted to the position of Sergeant
and Soares was promoted to the position of Lieutenant.
The CSC found, however, that the Borough had provided legitimate
reasons for bypassing Howlett and Soares for promotion earlier. The CSC stated
that an appointing authority has the discretion to choose the method of selecting
persons for promotion and, in the exercise of that discretion, could choose to
interview candidates and rank their performance in the interviews.
The CSC noted that Howlett and Soares were asked the same questions as
the other candidates for promotion. It stated that, while Howlett and Soares may
have ranked higher on the respective eligibility lists, neither had a vested interest
in promotion to the positions they were seeking.
Howlett and Soares then appealed to this court.1 In September 2018, we
entered orders in both appeals granting motions by the CSC to remand the
matters for further review. We did not retain jurisdiction.
The CSC thereafter consolidated the administrative appeals and issued its
final decision on December 21, 2018. The CSC stated that although Howlett
1 Howlett's appeal was docketed under A-2773-17 and Soares's appeal was docketed under A-2776-17. A-2268-18T1 5 and Soares were promoted to the positions they were seeking, their appeals of
the bypasses on PL170170 and PL170171 were not moot. The CSC noted that
if the prior bypass decisions were improper, Howlett and Soares would be
entitled to retroactive relief.
Therefore, the CSC addressed the merits of the appeals. The CSC stated
that under the so-called "Rule of Three," an appointing authority has the
discretion to select any one of the top three eligible persons on a promotion list,
so long as no veteran heads the list. The bypassed candidate has the initial
burden of presenting a prima facie case that the bypass was the result of
discrimination, retaliation, or otherwise improper.
The appointing authority then has the burden to articulate a legitimate,
non-discriminatory, or non-retaliatory reason for the decision. The candidate
may still prevail if he or she establishes that the appointing authority's proffered
reasons are pretextual or the improper reasons were the more likely motivations
for the decision. The appointing authority then must prove the adverse action
would have been taken regardless of any discriminatory or retaliatory motives.
The CSC found that neither Howlett nor Soares had shown that the
Borough abused its discretion in bypassing Howlett on PL170170 and Soares on
PL170171. The CSC found that the Borough properly based its bypass decisions
A-2268-18T1 6 on the scoring of the eligible candidates during the interview process, which has
been in place since 2014.
The CSC noted that the members of the Borough's PSC asked all of the
eligible candidates the same preset interview questions and scored each response
on a scale of one to five. The PSC also added five points to the scores of any
candidate recommended by the Chief of Police, and the persons with the highest
scores were selected for promotion.
The CSC found there was no evidence the Borough's bypass decisions
were due to invidious reasons, or a lower-ranked eligible candidate was selected
based on political considerations. The CSC concluded that the Borough's
decisions to bypass Howlett and Soares for the promotions were proper. This
appeal followed.
II.
On appeal, Howlett and Soares argue: (1) the CSC should have referred
the appeals to the Office of Administrative Law (OAL) for an evidentiary
hearing before an Administrative Law Judge (ALJ) because material facts were
in dispute; and (2) the Borough's reasons for bypassing Howlett on PL170170
and Soares on PL170171 were unlawful, arbitrary and capricious.
A-2268-18T1 7 An appellate court has "a limited role" in the review of administrative
agency decisions. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980).
Therefore, an appellate court may only reverse an agency's decision where it
finds that the decision is "arbitrary, capricious or unreasonable or . . . not
supported by substantial credible evidence in the record as a whole." Id. at 579-
80 (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).
In determining if an agency's decision is arbitrary, capricious or
unreasonable, we 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.
[In re Carter, 191 N.J. 474, 482-83 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
We "may not substitute [our] own judgment for the agency's even though
[we] might have reached a different result . . . ." Id. at 483 (quoting Greenwood
v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). "This is particularly
true when the issue under review is directed to the agency's special 'expertise
A-2268-18T1 8 and superior knowledge of a particular field.'" In re Stallworth, 208 N.J. 182,
195 (2011) (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).
The New Jersey Constitution provides in pertinent part that
"[a]ppointments and promotions in the civil service of the State, and of such
political subdivisions as may be provided by law, 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, 43-44
(2011) (quoting N.J. Const. art. VII, § 1, ¶ 2).
The Civil Service Act (CSA), N.J.S.A. 11A:1-1 to 12-6, and regulations
promulgated pursuant to the CSA, implement the policies underlying this
constitutional provision. Id. at 44 (citing N.J.S.A. 11A:2-6(d)). The CSA and
the regulations generally provide for merit-based appointments to positions in
the civil service. Ibid.
If there is a vacancy in a civil service position for which an examination
is required, the CSA "provides for an examination process." Ibid. (citing
N.J.S.A. 11A:4-2). "When an examination is announced, minimum
qualifications for the position must be posted." Ibid. (citing N.J.A.C. 4A:4-2.1).
"After the examination, an eligible list is published ranking all passing
A-2268-18T1 9 candidates by score, with special ranking rules for veterans and for tie scores."
Ibid. (citing N.J.A.C. 4A:4-3.2).
If "an appointing authority requests a list of candidates for a vacant
position, the [Commissioner of Personnel] will issue a certification 'containing
the names and addresses of the eligibles with the highest rankings on the
appropriate list.'" Ibid. (citing N.J.A.C. 4A:4-4.2(a)). "A complete certification
consists of 'three interested eligibles for the first permanent appointment, and
the name of one additional interested eligible for each additional permanent
appointment.'" Ibid. (quoting N.J.A.C. 4A:4-4.2(c)(2)).
"The Rule of Three . . . governs the hiring discretion of the appointing
authority[ and] '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)). In its present form, the Rule of
Three states:
The commissioner shall certify the three eligibles who have received the highest ranking on an open competitive or promotional list against the first provisional or vacancy. For each additional provisional or vacancy against whom a certification is issued at that time, the commissioner shall certify the next ranked eligible. If more than one eligible has the same score, the tie shall not be broken and they shall have the same
A-2268-18T1 10 rank. If three or more eligibles can be certified as the result of the ranking without resorting to all three highest scores, only those eligibles shall be so certified.
A certification that contains the names of at least three interested eligibles shall be complete and a regular appointment shall be made from among those eligibles. An eligible on an incomplete list shall be entitled to a provisional appointment if a permanent appointment is not made.
Eligibles on any type of reemployment list shall be certified and appointed in the order of their ranking and the certification shall not be considered incomplete.
[N.J.S.A. 11A:4-8.]
After the Commissioner certifies the list of three eligible candidates, the
appointing authority has the discretion to choose among the candidates to fill
the vacancy. Foglio, 207 N.J. at 45 (citing N.J.S.A. 11A:4-8). "The [R]ule of
[T]hree recognizes employment discretion and seeks to ensure that such
discretion is not exercised in a way inconsistent with 'merit' considerations."
Terry v. Mercer Cty. Bd. of Chosen Freeholders, 86 N.J. 141, 149-50 (1981).
After the appointing authority selects a candidate for appointment to a
vacancy, it must file a report with the Department of Personnel (DOP)
explaining its decision. Foglio, 207 N.J. at 46 (citing N.J.A.C. 4A:4-4.8(b)).
When the appointing authority bypasses a higher-ranked candidate, it must
provide the DOP with a "statement of reasons why the appointee was selected
A-2268-18T1 11 instead of a higher ranked eligible . . . ." Ibid. (quoting N.J.A.C. 4A:4-
4.8(b)(4)). "[T]he appointing authority retains discretion to bypass a higher-
ranked candidate 'for any legitimate reason based upon the candidate's merit.'"
Id. at 47 (quoting In re Hruska, 375 N.J. Super. 202, 210 (App. Div. 2005)).
III.
As noted, Howlett and Soares argue that the CSC erred by failing to refer
their administrative appeals to the OAL for an evidentiary hearing before
an ALJ. They argue that each appeal is a "contested case" under N.J.S.A.
52:14B-2 and that N.J.A.C. 4A:2-1.1(d) requires an evidentiary hearing to
resolve disputes of material fact pertinent to the Borough's bypass decisions.
"It is well settled that a party affected by administrative action who desires
a hearing must first demonstrate the existence of a constitutional or statutory
right to such [a] hearing." In re Crowley, 193 N.J. Super. 197, 208-09 (App.
Div. 1984). "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." Id. at 209 (citing Cunningham v. Dep't of
Civil Serv., 69 N.J. 13, 18-19 (1975)).
"[T]he mere expectancy of employment [i]s not an interest of
constitutional dimension . . . ." Ibid. (citing Bd. of Regents v. Roth, 408 U.S.
A-2268-18T1 12 564, 576-77 (1972)). Moreover, "[n]o right accrues to a candidate whose name
is placed on an eligible list." Foglio, 207 N.J. at 44 (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. Therefore, Howlett and Soares do not have a
constitutional right to a hearing.
We note that Howlett and Soares do not contend that they have a right
under the CSA to an evidentiary hearing on a bypass decision. Rather, they
contend an evidentiary hearing was required by N.J.S.A. 4A:2-1.1(d). The
statute provides in pertinent part that the CSC will decide an appeal "on the
written record" except when a hearing is required by law or the CSC finds "a
material and controlling dispute of fact exists that can only be resol ved by a
hearing . . . ." Ibid.
Howlett and Soares have identified issues which they contend are
"material and controlling" and can only be resolved by an evidentiary hearing.
Those issues are: (1) the "actual reasons and motivations" for the Borough's
bypass decisions and the use of the Rule of Three for those decisions; (2) the
identities of the members of the PSC who conducted the interviews of the
eligible candidates for promotion to the positions of Sergeant and Lieutenant in
A-2268-18T1 13 March 2017 so that "conflicts and bias" on the part of these members can be
examined; (3) the grades each PSC member gave to each candidate interviewed;
(4) the date or dates each interviewer graded the candidates; (5) the "actual
reasons and motivations" for the grades given to the candidates; (6) the
Borough's process for selecting the members of the PSC who would conduct the
interviews; (7) whether Borough officials made any statements against interest
or admissions regarding the appeals; and (8) whether there are any other
documents related to the policies or procedures for the promotional interviews.
However, the record shows that in its submissions to the Commission, the
Borough explained the "actual reasons and motivations" for utilizing the Rule
of Three and bypassing Howlett and Soares for promotions on PL170170 and
PL170171, respectively. The Borough stated that the members of the PSC
interviewed the candidates for Sergeant and Lieutenant, asked each candidate an
identical series of preset questions, and scored each candidate on their answers
on a fixed numerical basis.
The Borough further explained that scoring sheets were completed
anonymously, and copies of those documents were provided. Howlett and
Soares have not shown that the identities of the members who completed the
scoring sheets are relevant or material to their appeals. They also have not
A-2268-18T1 14 explained why the date or dates each candidate was graded is either relevant or
material. Even so, the Borough's attorney stated in a letter dated December 16,
2018, to the Police Benevolent Association, that the scoring sheets were
completed when the candidates were interviewed.
Moreover, the Borough explained that all three members of the PSC
conducted the interviews and graded the candidates. Thus, there is no issue as
to the manner in which the Borough selected the members of the PSC to conduct
the interviews. In addition, the Borough explained that the "actual reasons and
motivations" of the persons who conducted the interviews was to score the
candidates based on their answers to the questions to determine their merit and
fitness for the positions.
Furthermore, Howlett and Soares have not shown that an inquiry into
potential conflicts and bias on the part of the PSC members is warranted . They
did not present the CSC with evidence of any such conflict or bias. Howlett and
Soares also failed to show that disclosure of any statements against interest by
Borough officials regarding their appeals, or the production of "other"
documents related to the policies and procedures for the promotion interviews,
would be relevant or material to the appeals.
A-2268-18T1 15 We therefore conclude that the CSC correctly determined that an
evidentiary hearing was not required to resolve the issues raised by Howlett and
Soares in their administrative appeals. The Borough provided the CSC with
explanations for its decisions to bypass Howlett and Soares for promotions in
March 2017. There were no disputed issues of material fact which required an
evidentiary hearing, and the CSC did not err by deciding the appeal based on the
written record.
IV.
Howlett and Soares further argue that the Commission's final decision is
arbitrary, capricious and unreasonable. They contend the Borough failed to
provide legitimate reasons when it bypassed Howlett on PL170170 and Soares
on PL170171. They assert the Borough bypassed them for promotion because
they were not "connected" with local politicians in the Borough. They also
argue that the Borough's interview process "itself leads to arbitrary and
capricious results[,]" and is "clearly against New Jersey's Constitution . . . ." We
disagree.
As we previously stated, under the Rule of Three, "the appointing
authority has the discretion to bypass a higher-ranked candidate on a list of
eligible 'for any legitimate reason based upon the candidate's merit.'" Foglio,
A-2268-18T1 16 207 N.J. at 47 (quoting In re Hruska, 375 N.J. Super. at 210). If the appointing
authority has a "legitimate reason" for bypassing a higher-ranked candidate, then
the appointment does not run afoul of New Jersey’s Constitution. Crowley, 193
N.J. Super. at 214.
Here, the record supports the Commission's determination that the
Borough properly exercised its discretion under the Rule of Three when it
bypassed Howlett on PL170170 and Soares on PL170171. The CSC found the
Borough has the discretion to conduct interviews as part of the promotional
process. The Borough has been using the interview process since 2014.
The CSC noted that the members of the Borough's PSC conducted
interviews of the candidates for promotion to Sergeant and Lieutenant. Each
candidate was asked the same series of preset questions. The candidates'
answers to the questions were given a score of between zero to five. In addition,
five points were added to any candidate that the Chief of Police recommended.
The CSC found there was no credible evidence the interviews were
conducted inappropriately. It stated that "the selection of lower ranked
candidates based on their performance during the interview[s] was not arbitrary
and provided a legitimate reason for the bypass of [Howlett and Soares]." There
is sufficient credible evidence in the record to support that finding.
A-2268-18T1 17 The CSC also rejected Howlett's and Soares's assertions that the Borough's
bypass decisions were due to invidious reasons. The CSC noted that neither
Howlett nor Soares had presented any evidence to support their assertion that
the lower ranked eligible candidates were appointed based on political
considerations. We note that, while Orlando stated in his letter to the CSC that
the Borough implemented the interview process to circumvent the civil service
regulations and appoint persons with political connections, he provided no
evidence supporting that allegation.
Affirmed.
A-2268-18T1 18