IN THE MATTER OF WILLIAM PIERCE, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 28, 2019
• Docket: A-0892-17T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0892-17T2

IN THE MATTER OF WILLIAM PIERCE, CITY OF HACKENSACK, POLICE DEPARTMENT. ____________________________

Argued May 14, 2019 – Decided June 28, 2019

Before Judges Gilson and Natali.

On appeal from the New Jersey Civil Service Commission, Docket No. 2015-1891.

Maurice W. Mc Laughlin argued the cause for appellant William Pierce (Mc Laughlin & Nardi, LLC, attorneys; Maurice W. Mc Laughlin and Robert K. Chewning, on the briefs).

Raymond R. Wiss argued the cause for respondent City of Hackensack Police Department (Wiss & Bouregy, PC, attorneys; Raymond R. Wiss, of counsel; Timothy James Wiss and Thomas Kevin Bouregy, on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM Appellant William Pierce, a sixteen-year member of the Hackensack

Police Department (Department), appeals from a final decision of the Civil

Service Commission (Commission). Because we conclude the Commission's

decision was neither arbitrary nor capricious, we affirm.

I.

After serving as a patrol officer for ten years and passing the sergeant's

exam, Pierce was provisionally promoted to the title of sergeant, subject to his

successful completion of a three-month working test period (WTP). After Pierce

failed to complete successfully his WTP, the Department reduced his rank to

patrol officer. Pierce filed an administrative appeal of the Department's

decision, and the parties entered a settlement agreement whereby the

Department agreed to re-promote Pierce to the sergeant position, and provide

him with the opportunity to complete a second WTP.

At the end of the second WTP, the Department determined that Pierce

failed to perform the duties of sergeant and demoted him to patrolman. Pierce

filed an appeal with the Commission, which transferred the matter to the Office

of Administrative Law to be heard as a contested matter before an

Administrative Law Judge (ALJ).

A-0892-17T2 2 The ALJ conducted hearings over the course of six days. During those

proceedings, Pierce and four other Department police officers, Sergeant Walter

Peterson and Captains Patrick Coffey, Peter Busciglio, and Timothy Lloyd,

testified. The Department and Pierce also relied on documentary evidence.

The Department maintained that Pierce lacked the administrative skills

necessary for a sergeant, citing his inability to multitask, and his delay in

processing paperwork. In addition, the Department claimed, based on reports

from other officers, that Pierce communicated with them in a condescending

manner. The Department also maintained that fellow patrol officers lacked

confidence in Pierce, and expressed concern how he would respond in a

life-or-death situation.

For example, Coffey testified that he briefly supervised Pierce's work

during his second WTP, during which time he observed and received complaints

about Pierce using a condescending, "abrasive," or similar tone when

communicating with subordinate patrol officers. In a memorandum evaluation

of Pierce's performance, Coffey stated that he did not recommend that Pierce

"be permanently promoted to the rank of Sergeant." Peterson, who the ALJ

found to be "honest and credible," was primarily responsible for supervising

Pierce during the WTP, and also stated he would not recommend that Pierce be

A-0892-17T2 3 promoted to the position of sergeant. In Lloyd's written review of Pierce's WTP,

he noted that although he interacted with Pierce sporadically, based on his

limited observations and conversations with other supervisors and Pierce's

peers, he could not "in good consci[ence] say that [Pierce] [was] ready for the

full time role as Patrol Supervisor."

Sergeant T.M. Cappadonna recounted in a memorandum that she observed

Pierce during a fire incident behave professionally but he failed to "free up

man-power as soon as they were no longer needed." Cappadonna concluded that

Pierce was "capable of being a police sergeant," but "his shortcomings prevent

him from doing so at the same time." Cappadonna explained that "[i]f there is

any time left prior to his demotion date he should be made aware of them

immediately and . . . given an opportunity to eliminate them."

In its July 24, 2017 initial decision, the ALJ concluded that the

Department "failed to provide Pierce with adequate notice of his work

performance during his . . . WTP and therefore did not exercise good faith during

the WTP." Accordingly, the ALJ recommended the reversal of the Department's

A-0892-17T2 4 demotion of Pierce, and that he be provided another WTP as a result of the

aforementioned procedural irregularities.1

The ALJ faulted the Department for waiting until a week was left in his

WTP before providing Pierce with written copies of his evaluation reports.

Further, the ALJ criticized Coffey, who was assigned to work with Pierce during

the WTP in order to evaluate his performance, yet only observed Pierce's

performance on eight out of the ninety days, and failed to complete nine of

twelve evaluations, many of which lacked sufficient detail. The ALJ determined

these deficiencies prevented Pierce from remedying his inadequate job

performance and accordingly reversed Pierce's demotion and awarded him a new

WTP "so a true evaluation of his abilities can be made."

1 The ALJ who presided over the trial issued an "initial decision" on February 16, 2017, which found that due to "irregularities in the procedures regarding Pierce's working test period," the Department "demoted Pierce in bad faith," and accordingly "ordered . . . Pierce be re-promoted to the rank of sergeant and be provided with a [new] working test period . . . along with costs and reasonable attorney's fees." On February 22, 2016, however, the Acting Director and Chief ALJ sent the parties a letter advising that the ALJ who had presided over the trial and authored the February 16, 2017 "initial decision" had retired, and the matter was reassigned to a new ALJ. The Chief ALJ also informed the parties that prior to her retirement, the first ALJ released the February 16, 2017 "initial decision" "accidentally" as it "was actually a draft." The second ALJ issued the July 24, 2017 initial decision that was affirmed by the Commission. A-0892-17T2 5 Pierce submitted a letter brief to the Commission on August 4, 2017

asserting that the ALJ failed "to include all of the required remedies [he] should

be awarded . . . ." Specifically, Pierce maintained that he should be promoted

to the permanent position of sergeant, without having to go through another

WTP. He also argued that he should be entitled to attorney's fees, back pay, and

seniority status.

In a September 7, 2017 final decision, the Commission adopted the ALJ's

recommendations, findings of fact and conclusions of law, reversed Pierce's

demotion, and awarded him a new WTP. The Commission determined that

although Pierce "will be permitted to complete a new working test period, [he]

has not obtained permanent status as a [p]olice [s]ergeant" as "the record does

not adequately establish [Pierce's] satisfactory work performance." Relying on

two Merit System Board decisions, the Commission denied his application f or

counsel fees and costs, back pay, and seniority status. As to Pierce's request for

counsel fees and back pay, the Commission concluded that "sufficient cause has

not been demonstrated in this matter to award back pay or counsel fees" because

"it was found that [Pierce] is not entitled to a permanent appointment since he

had not successfully completed his working test period." This appeal followed.

A-0892-17T2 6 II.

On appeal, Pierce argues that the Commission committed error in refusing

to appoint him to the position as sergeant. Next, Pierce maintains he should

have been awarded back pay, seniority status, counsel fees, and costs.

Specifically, he asserts that under N.J.A.C. 4A:2-1.5(b), the Commission was

required to award these remedies based on the ALJ's and Commission's findings

of bad faith on the part of the Department. Finally, Pierce contends N.J.A.C.

4A:2-2.12(a) also compelled an award of counsel fees and costs as he was a

successful claimant because he would have "completed his working test period

and remained a permanent sergeant . . . [b]ut for [HPD's] bad faith." We

disagree with all of these arguments and affirm.

III.

Our review of a decision of an administrative agency is limited. In re

Herrmann, 192 N.J. 19, 27 (2007). "A strong presumption of reasonableness

attaches" to agency action. In re Vey, 272 N.J. Super. 199, 205 (App. Div.

1993). Further, the Commission has "broad powers" in deciding personnel

matters. City of Hackensack v. Winner, 82 N.J. 1, 18 (1980). Reviewing courts

"will not upset a determination by the Commission in the absence of a showing

that it was arbitrary, capricious or unreasonable, or that it lacked fair support in

A-0892-17T2 7 the evidence, or that it violated legislative policies expressed or implicit in the

civil service act." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

A.

Pierce's first argument that the Commission committed error in failing to

appoint him permanently to the position of sergeant is without merit as there

was substantial credible evidence in the record to support the ALJ's and

Commission's conclusion that he failed to satisfactorily complete the WTP.

"The purpose of [a] [WTP] is to permit an appointing authority to determine

whether an employee satisfactorily performs the duties of a title." N.J.S.A.

11A:4-15; see N.J.A.C. 4A:1-1.3 (defining "[w]orking test period" as "a part of

the examination process after regular appointment, during which time the work

performance and conduct of the employee is evaluated to determine if permanent

status is merited"). Thus, "the actual completion of a working test period is

ordinarily a basic condition of permanent employment." Cipriano v. Dep't of

Civil Serv., 151 N.J. Super. 86, 90 (App. Div. 1977); see also N.J.A.C. 4A:1-1.3

(conditioning permanent appointment upon "successful completion of the

working test period").

When an employee who has earned permanent appointment in a lower title

serves a WTP for a higher title, but does not satisfactorily complete and perform

A-0892-17T2 8 the duties of the higher title during the WTP, the employee is subject to

demotion to the lower permanent title that he or she has retained. N.J.S.A.

11A:4-15(d); Briggs v. Dep't of Civil Serv., 64 N.J. Super. 351, 355 (App. Div.

1960); accord N.J.A.C. 4A:4-5.1(a), (c). The question of satisfactory

performance is a matter typically entrusted to the Commission, and its decision

in that regard generally is entitled to deference when fairly supported by the

record. See Malani v. Cty. of Passaic, 345 N.J. Super. 579, 589-90 (App. Div.

2001); Briggs, 64 N.J. Super. at 354-55. "If bad faith is found by the

Commission, the employee shall be entitled to a new full or shortened working

test period and other appropriate remedies." N.J.A.C. 4A:2-4.3(c) (citing

N.J.A.C. 4A:2-1.5 as a source of other appropriate remedies).

Although Pierce established, and the ALJ and Commission agreed, that he

was entitled to a new WTP in light of the Department's procedural irregularities,

the record supports the Commission's decision that he did not satisfactorily

complete the WTP. For example, Coffey testified that sergeants are the first

supervisors in the chain-of-command from whom patrol officers "seek guidance

or assistance," and that a sergeant's duties include "giv[ing] suitable assignments

and instructions to the police officers on duty," and "to treat citizens and others

with uniform with courtesy and consideration." Coffey further testified that he

A-0892-17T2 9 observed Pierce use an "abrasive" tone with a subordinate who Coffey believed

was seeking advice, received similar complaints about Pierce's "demeanor" from

officers who were "unhappy with . . . the way they felt [Pierce] was speaking to

them," and received "a few complaints" from patrol officers who "weren't

comfortable or confident with [Pierce] handling certain situations as a

supervisor."

Specifically, Coffey stated that he believed Pierce did not multitask well,

and the written report of Lloyd echoes that sentiment. As Coffey explained, if

patrol officers "don't witness their direct supervisor keeping things . . . operating

smoothly, they start to lose faith and lack of confidence in that individual," and

when "officers become disgruntled and stop performing in their jobs" it may

lead to "public safety issues and officer safety issues." In accordance with

Cappadonna's memorandum, which concluded Pierce was "capable of being a

police sergeant" but "his shortcomings prevent him from doing so at the same

time," the Commission's decision not to award Pierce permanent appointment as

a sergeant, but instead to award a new WTP for the Department to evaluate in

good faith Pierce's ability to execute the duties and responsibilities of sergeant,

was reasonable and not an abuse of discretion.

B.

A-0892-17T2 10 Next, we also reject Pierce's argument that N.J.A.C. 4A:2-1.5 entitled him

to seniority status, back pay, and counsel fees and costs "based on [HPD's] bad

faith." Pursuant to N.J.A.C. 4A:2-1.5(a), "[s]eniority credit may be awarded in

any successful appeal." Because the Commission's decision not to award Pierce

permanent appointment as a sergeant was reasonable, it follows that the

Commission's decision not to award Pierce seniority credit as a sergeant was

neither arbitrary nor capricious.

With respect to the other remedies, N.J.A.C. 4A:2-1.5(b) provides:

Back pay, benefits and counsel fees may be awarded in disciplinary appeals and where a layoff action has been in bad faith. See N.J.A.C. 4A:2–2.10. In all other appeals, such relief may be granted where the appointing authority has unreasonably failed or delayed to carry out an order of the . . . Commission or where the Commission finds sufficient cause based on the particular case. A finding of sufficient cause may be made where the employee demonstrates that the appointing authority took adverse action against the employee in bad faith or with invidious motivation.

[(emphasis added).]

Pierce contends the Commission "[in]correctly applied" that regulation

because the ALJ found the Department's "failure to offer adequate time to

remediate deficiencies in job performance during a WTP constitutes bad faith,"

and the Commission adopted that finding. Thus, according to Pierce, because

A-0892-17T2 11 he demonstrated bad faith by the Department, the Commission "mistakenly

limited how sufficient cause could be established to only when an appellant

demonstrates that he [or she] has successfully completed his [or her] working

test period." We disagree.

"Under the 'plain meaning' rule . . . , the word 'may' ordinarily is

permissive and the word 'shall' generally is mandatory." Aponte-Correa v.

Allstate Ins. Co., 162 N.J. 318, 325 (2000). Under N.J.A.C. 4A:2-1.5(b), the

Commission "may" find "sufficient cause" to grant back pay, benefits and

counsel fees upon a showing of bad faith. There is nothing in the regulation that

suggests the word "may" was intended to be mandatory. Cf. Harvey v. Bd. of

Chosen Freeholders of Essex Cty., 30 N.J. 381, 392 (1959).

Further, "[a]n agency's interpretation of its own regulations is entitled to

substantial deference," and we generally defer to that interpretation "unless the

language of the regulations is not reasonably susceptible to that interpretation."

DiMaria v. Bd. of Trustees of Pub. Employees' Ret. Sys., 225 N.J. Super. 341,

351 (App. Div. 1988) (citations omitted). Clearly, the language of N.J.A.C.

4A:2-1.5(b) is reasonably susceptible to the interpretation that the Commission

has discretion whether to award back pay, benefits, and counsel fees upon a

showing of bad faith. We conclude the Commission reasonably exercised that

A-0892-17T2 12 discretion in denying Pierce those remedies based on Pierce's failure to establish

successful completion of the WTP, and its decision to grant Pierce a new WTP.

C.

Finally, we also reject Pierce's claim that N.J.A.C. 4A:2-2.12(a) entitled

him to counsel fees. Pursuant to N.J.A.C. 4A:2-2.12(a), the Commission "shall

award partial or full reasonable counsel fees incurred in proceedings before it

and incurred in major disciplinary proceedings at the departmental level where

an employee has prevailed on all or substantially all of the primary issues before

the Commission." According to Pierce, he was entitled to counsel fees under

that rule because he prevailed on the issue of whether the Department engaged

in bad faith. We disagree.

The "procedures established by chapter 2, subchapter 2" of Title 4A of the

administrative code, which includes N.J.A.C. 4A:2-2.12, are "for the appeal of

major disciplinary action by permanent employees in the career service." See

In re Hearn, 417 N.J. Super. 289, 303 (App. Div. 2010); accord Oches v. Twp.

of Middletown Police Dep't, 155 N.J. 1, 8 (1998) (explaining that N.J.A.C.

4A:2–2.12 "specifically appl[ies] to disciplinary appeals"). "Major discipline"

includes "[d]isciplinary demotion[s]," but not non-disciplinary demotions at the

end of a WTP. N.J.A.C. 4A:2-2.2(a). Therefore, N.J.A.C. 4A:2-2.12(a) is

A-0892-17T2 13 inapplicable to this non-disciplinary appeal. Further, the primary issue raised

by Pierce before the Commission was whether he successfully completed his

WTP and should therefore be promoted to the permanent position of sergeant.

Pierce did not prevail on that issue. Accordingly we conclude the Commission's

decision to deny counsel fees constituted a valid interpretation of its regulations

and was not arbitrary, capricious, or unreasonable.

To the extent we have not specifically addressed any of Pierce's remaining

contentions, it is because we find they have insufficient merit to warrant

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

Affirmed.

A-0892-17T2 14