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Tharpe v. City of Newark Police Department

Decided: December 24, 1992.


On appeal from State of New Jersey, Department of Personnel, Merit System Board.

Bilder, Baime and Wallace. The opinion of the court was delivered by Baime, J.A.D.


The issue presented is whether an arrest unsupported by a conviction disqualifies an individual from obtaining employment as a police officer. Jesse Tharpe appeals from the decision of the Merit System Board, removing him from the eligibility list for the title of police officer. The Board concluded that Tharpe's arrest seven years earlier for possession of a small amount of marijuana, a disorderly persons offense under N.J.S.A. 24:21-20a(4), for which he was later conditionally discharged pursuant to N.J.S.A. 24:21-27, barred him from employment for that position. Tharpe contends that the Board failed to give adequate consideration to the de minimis nature of his involvement in the possession offense and to his subsequent unblemished record. We reverse the Board's determination and remand for reconsideration.

The facts are not in dispute. On August 10, 1988, the Department of Personnel certified a list of individuals eligible for the position of police officer in the City of Newark. Tharpe, whose name appeared on the certified list, was advised that a decision respecting his application would be made in due course. However, on January 24, 1990, the City requested removal of Tharpe's name because of his arrest record.

Tharpe appealed to the Department. Included in Tharpe's documentary submissions were two letters explaining the circumstances of his arrest in October 1983. Tharpe recounted that he and three friends were returning in his car from a basketball game in New York when he was stopped by the police. Tharpe asserted that upon noticing the patrol car, one of his friends removed a bag of marijuana from his pocket and placed it on the floorboard. All four occupants of the vehicle were arrested.

It is undisputed that Tharpe was later found not guilty of being under the influence of marijuana under N.J.S.A. 24:21-20b. In addition, he pleaded not guilty to possession of marijuana and was conditionally discharged pursuant to N.J.S.A.

24:21-27. The possession charge was later dismissed after Tharpe successfully completed his participation in a supervisory treatment program. Despite this information, the Department's Assistant Regional Administrator denied Tharpe's appeal, erroneously finding that he had been convicted of a crime.

Tharpe then appealed to the Director of County and Municipal Government Services. On August 13, 1990, the Director sustained the City's removal of Tharpe's name from the eligibility list. While noting that Tharpe had not been convicted of a crime, the Director emphasized that the appointing authority had the right to consider his conditional discharge "in evaluating the applicant's eligibility for a law enforcement position."

Tharpe appealed the Director's decision to the Merit System Board. On March 7, 1991, the Board sustained the Director's action. The Board noted that a conditional discharge is not a conviction, but may be considered in determining an applicant's qualifications. Without making specific findings, the Board concluded that a conditional discharge for possession of a controlled dangerous substance "related adversely to the unique position held by a police officer." This appeal followed.

The applicable statutes are contained in the 1986 reform of the Civil Service Act. For the selection and appointment of civil service employees, the Commissioner of Personnel must administer examinations that fairly test the "knowledge, skills and abilities" required to perform the task of a given job classification. N.J.S.A. 11A:4-1(a). On the basis of such tests, the Commissioner establishes an "eligibility list" from which an appointing authority must make selections. N.J.S.A. 11A:4-5.

The eligibility lists are not sacrosanct. An applicant's name may be removed for a variety of reasons. For example, a criminal conviction may be found to "adversely relate[] to the employment sought," in which case the Commissioner may strike the applicant's name from the list. N.J.S.A. 11A:4-11. Although we are not ...

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