IN THE MATTER OF WILLIAM PEPPARD, COUNTY POLICE SERGEANT (PC5095N), BERGEN COUNTY AND STATEWIDE (NEW JERSEY CIVIL SERVICE COMMISSION)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 25, 2018
• Docket: A-4366-16T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4366-16T1

IN THE MATTER OF WILLIAM PEPPARD, COUNTY POLICE SERGEANT (PC5095N), BERGEN COUNTY. _____________________________

Submitted September 17, 2018 – Decided September 25, 2018

Before Judges Messano and Rose.

On appeal from the New Jersey Civil Service Commission, Docket No. 2017-7865.

Loccke, Correia & Bukosky, attorneys for appellant William Peppard (Corey M. Sargeant, of counsel and on the briefs).

Gurbir S. Grewal, Attorney General, attorney for respondent Civil Service Commission (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Pamela N. Ullman, Deputy Attorney General, on the brief).

PER CURIAM

William Peppard appeals from the May 3, 2017 final agency decision of

the Civil Service Commission (CSC) denying his request for retroactive appointment as a sergeant in the Bergen County Police Department. The facts

are undisputed.

Peppard was scheduled to take the sergeant's examination on June 1, 2013,

but failed to appear. In its March 5, 2014 order, the CSC granted Peppard's

request to take a make-up examination upon his furnishing proof of his military

deployment explaining his non-appearance. The order also provided that if

Peppard passed the exam, his name would be prospectively added to the certified

list of eligibles; if appointed and upon successfully completing his working test

period, Peppard or the appointing authority could petition for a retroactive

appointment for seniority purposes. As a result of the June 2013 test, a list of

eligibles was promulgated in August 2014, and Bergen County made five

appointments from the list effective October 1, 2014.

For reasons that are not fully explained by the record, and for which

Peppard does not blame the CSC, the make-up exam was not administered until

January 2016.1 Peppard passed the exam and was ranked "2A." He was then

added to the list of eligibles set to expire on August 6, 2017. On December 8,

2016, Peppard petitioned the CSC for appointment to the list, retroactive to its

1 Peppard asserts a "consent decree" prohibited the administration of a make-up exam until January 2016. At another point in his brief, he states without any further explanation or support that the delay was "caused by the County." A-4366-16T1 2 August 22, 2014 certification date. Peppard asserted that vacancies existed,

thereby permitting his promotion without displacing previous appointees.

In its final decision denying the petition, the CSC noted that N.J.A.C.

4A:4-1.10(c) permits a retroactive appointment "to correct an administrative

error, for administrative delay or for other good cause." Therefore, the CSC will

grant a retroactive appointment "where an employee is actually serving in and

performing the duties of a title, but, due to some error or other good cause, the

employee's attainment of permanent status was delayed or hindered[,]" or "their

name was improperly removed from or bypassed on an eligible list." In such

circumstances, to correct the "improper list removal or bypass," the CSC may

also order "the employee's appointment and a retroactive date of permanent

appointment commensurate with the date of which other candidates were

appointed" from the certified list of eligibles.

The CSC observed that it lacked any authority to tell the appointing

authority, Bergen County, "what positions to create and how to manage its

workforce." Therefore, that vacancies existed and Peppard's appointment to the

rank of sergeant would not displace others was irrelevant. The CSC noted that

the regulations "do[] not mandate that [d]epartments or jurisdictions spend funds

to make promotional appointments, and promotional appointments are not

A-4366-16T1 3 entitlements, but [rather] are based on factors such as the needs of the appointing

authority to fill a vacancy subject to fiscal and other considerations, which

include merit and fitness." Citing our decision in Nunan v. Department of

Personnel, 244 N.J. Super. 494 (App. Div. 1990), the CSC said Peppard "does

not possess a vested property interest in a vacant position," but only that he "will

be considered for an applicable position so long as the eligible list remains in

force." The CSC denied the petition, and this appeal followed.

The scope of our review of an agency decision is limited. Russo v. Bd. of

Trs., Police & Firemen's Ret. Sys., 206 N.J.14, 27 (2011) (citing In re Herrmann,

192 N.J. 19, 27 (2007)). The decision should be upheld unless there is a "clear

showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair

support in the record." Ibid. (quoting Herrmann, 192 N.J. at 27-28). Although

we are not bound by the "agency's interpretation of a statute or its determination

of a strictly legal issue," ibid. (quoting Mayflower Sec. Co. v. Bureau of Sec.,

64 N.J. 85, 93 (1973)), we "presume that the regulations they pass are valid

because 'agencies have the specialized expertise necessary to enact regulations

dealing with technical matters.'" In re Adoption of N.J.A.C. 7:15-5.24(b), 420

N.J. Super. 552, 564 (App. Div. 2011) (quoting N.J. State League of

Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999)).

A-4366-16T1 4 Peppard argues that the CSC erred in denying his petition because had he

been on the certified list of eligibles in 2014, and given his veteran status, he

would have certainly been appointed, and the regulations permit his retroactive

appointment under these circumstances. We disagree and affirm substantially

for the reasons expressed by the CSC in its final agency decision. We add the

following brief comments.

None of the regulations cited by Peppard in his brief compels a contrary

result. For example, N.J.A.C. 4A:4-3.6(b) requires the CSC to "determine the

retroactive certification and/or appointment rights" when "the name of an

eligible is added to an existing list to correct an error made by the [CSC]," but

otherwise gives the CSC the authority to "determine the effect" of adding a name

to the list of eligibles "on certifications and prior permanent appointments."

Here, Peppard was not omitted from the 2014 list because of the CSC's error.

N.J.A.C. 4A:4-6.4A(a) governs the status of an active military employee

already "on an open competitive eligible list" who "is called to active Federal

duty prior to the list's expiration date, and who does not return from active

Federal duty until after the list's expiration." Peppard was not on an open

competitive list until he took and passed the make-up examination in 2016.

Moreover, the CSC granted Peppard the relief he was entitled to given his

A-4366-16T1 5 military status. N.J.A.C. 4A:4-2.9(c) states that employees on military leave are

permitted to take make-up examinations they miss while on leave if eligible. If

the examinee passes the make-up examination, his or her score will be added to

the eligible list as if they had taken the exam when it was originally

administered. Ibid. The CSC's March 5, 2014 order granted Peppard's initial

appeal and permitted him to take the make-up examination.

Peppard argues the CSC failed to consider that appointment to the list after

he passed the examination was only a Pyrrhic victory, because placement on the

existing list of eligibles provided no remedy due to "merger within the county,"

resultant "attrition," and no possibility of a future list for the title. 2 However,

the CSC considered these circumstances and correctly noted that regardless of

when he was placed on the list of eligibles, Peppard had no "vested right to

appointment." Nunan, 244 N.J. Super. at 497 (quoting In re Crowley, 193 N.J.

Super. 197, 210 (App. Div. 1984)); see also In re Foglio, 207 N.J. 38, 44 (2011)

("No right accrues to a candidate whose name is placed on an eligible list.")

(citing Crowley, 193 N.J. Super. at 210).

2 Although not fully explained in the record, it appears that the Bergen County Police Department merged into another department, presumably the Sheriff's Department. A-4366-16T1 6 Lastly, Peppard's reliance on In re Meter Reader, Lavalette Borough

(M1344L), N.J. CSC LEXIS 172 (Feb. 22, 2012), is misplaced. There, the

employee had been serving in the title as a provisional appointment for three

years during which time the appointing authority delayed administration of an

examination for unexplained reasons. Id. at 6. Here, Peppard was not serving

provisionally when the test was administered and none of the "particular facts"

noted by the CSC in that case apply here.

Affirmed.

A-4366-16T1 7