Staller, J.c.c., Temporarily Assigned.
In these cross-motions for summary judgment the parties have agreed that the ruling shall be made on the papers pursuant to R. 1:6-2. Plaintiffs' complaint essentially alleges that they were illegally passed over for promotion from patrolman to sergeant in the Police Department of the Borough of Avalon. For reasons hereinafter stated, plaintiffs' motion for summary judgment is denied and defendants' motion is granted.
The Avalon Police Department is not subject to Civil Service. In promoting officers the borough is required to follow N.J.S.A. 40A:14-129, which provides as follows:
In any municipality wherein Title 11 (Civil Service) of the Revised Statutes is not in effect, and except in cities of the first and second class, a promotion of any member or officer of the police department or force to a superior position shall be made from the membership of such department or force. Due consideration shall be given to the member or officer so proposed for the promotion, to the length and merit of his service and preference shall be given according to seniority in service.
No person shall be eligible for promotion to be a superior officer unless he shall have previously served as a patrolman in such department or force.
Under either system, the main concern is merit and fitness. See N.J.S.A. 11:21-3; N.J. Const. (1947), Art. VII, § I, par. 2.
The parties do not agree on the exact method of computing seniority -- whether it accrues from the date of probationary appointment or permanent appointment -- but this is a point that need not be decided, as Patrolman Gaskill
at least clearly has greater seniority than Sergeant Shaw. Plaintiffs and defendants agree that the officer with the most seniority should not automatically receive the promotion. The difference is that plaintiffs contend that the burden of proof should be on the borough to demonstrate the reasons for not strictly following seniority in making promotions, while defendants contend that the burden of proof is on the plaintiffs to show an abuse of discretion by the borough.
In McBride v. Bloy , 13 N.J. Misc. 136, 176 A. 675 (Sup. Ct. 1935), a case arising under R.S. 40:47-18, the predecessor statute to N.J.S.A. 40A:14-129, the court was also faced with a case where a more senior officer was passed over for a promotion. The court denied relief to that officer, saying that "[s]o far as we can discover from the record, there seems to be good reason for the action taken". This is tantamount to saying that the action will not be revoked unless it is clearly arbitrary, capricious or unreasonable. This is also the standard in reviewing decisions on zoning variances by municipalities, see, e.g., Kramer v. Sea Girt Bd. of Adj. , 45 N.J. 268, 296-297 (1965), and of decisions of administrative agencies. Flanagan v. Civil Service Dep't. , 29 N.J. 1, 9 (1959). Recently, in Guerrero v. Burlington Cty. Memorial Hospital , 70 N.J. 344 (1976), (Slip opinion at p. 16.), the same standard of review has been applied to review of personnel decisions of hospitals. This court agrees with the McBride court that it is the appropriate standard of review here.
The case of Sogliuzzo v. Hoboken , 62 N.J. Super. 243, 249-250 (App. Div. 1960), cited by plaintiffs is not strictly applicable because it dealt with a municipality subject to Civil Service and its attendant rules and regulations, but it is instructive since it applied the "arbitrary, capricious or unreasonable" standard to a case involving a police promotion from a list of Civil Service policemen eligible for promotion. There plaintiff had a higher score than the Director's brother who was appointed, and the Director told plaintiff that he was not appointed because "blood
is thicker than water." The court refused to invalidate that appointment, stating (at 250) that there was no evidence that there were not other ...