On appeal from the Superior Court of New Jersey, Law Division, Hudson County, HUD-L-2111-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Sabatino and Lyons.
Plaintiff, Daniel Lobue III, appeals the Law Division's dismissal of his complaint challenging certain personnel actions by the defendant City of Hoboken ("the City"). The dismissal was entered without prejudice to plaintiff, in order to exhaust his administrative remedies. We affirm the dismissal, with some modifications.
The facts and procedural history in this multi-faceted civil service dispute are intertwined. We present them in tandem.
Lobue is a resident of Hoboken. At the times germane to this matter, Lobue has been employed as a lieutenant in the City's police department. The rank of lieutenant is immediately below the rank of police captain. As of October 17, 2004, the City employed eight captains in its police department. Lobue was and remains interested in advancing to the rank of captain.
Pursuant to a local ordinance, § 59A-8(A), the City had a table of organization for the police department, which it promulgated under the authority of N.J.S.A. 40A:14-118. Among other things, the table of organization identified job titles within the police department and specified the maximum number of authorized positions for each such title. In particular, Ordinance § 59A-8(A) provided that the police department could have only one chief and a maximum of eight captains, seventeen lieutenants, twenty-five sergeants and 127 police officers. A related provision, Ordinance § 59A-8(C), further provided that "[i]n the event of a vacancy in any rank or position [within the police department], such rank or position shall not be filled by the appointing authority [the City] unless there shall be a vacant rank or position pursuant to the table of organization set forth herein." Thus, as of October 17, 2004, the City employed its maximum authorized allotment of eight captains, and there were no vacancies in that rank.
As depicted on the following chart*fn1 , the persons employed as of October 17, 2004 within the police department with a rank above sergeant, including Lobue, were as follows:
9 to 17 Other Lieutenants*fn2
The hiring, firing, and promotion of employees within the City's police department is subject to civil service regulations administered by the State Department of Personnel ("The DOP"). See N.J.S.A. 11A:1-1 to 12-6. In order to be promoted to another title within the police department, an officer must sit for a promotional examination administered by the DOP. N.J.A.C. 4A:4-2.3(a). After such examinations are scored, the DOP promulgates ranked promotional lists for the local appointing authority. N.J.A.C. 4A:4-3.2. The appointing authority must fill vacant positions by hiring from such lists, in a manner consistent with the pertinent civil service regulations. N.J.S.A. 11A:4-5; N.J.A.C. 4A:4-2.3. The DOP certifies such lists, which have a specified duration, to the appointing authority. N.J.A.C. 4A:4-3.3.
On July 22, 2004, Lobue filed an application with the DOP to sit for the promotional examination for the rank of captain. Although his application was filed one day late, Lobue was permitted to sit for the examination conditionally, while his appeal of the timeliness issue was pending with the DOP.
Despite the fact that the City then did not have any vacancies in the rank of captain, on October 18, 2004 it requested from the DOP three names for promotion to captain from the extant promotional list. The promotional list had been promulgated by the DOP on March 1, 2001, and was not due to expire until February 28, 2005. Based upon that request, the DOP issued to the City on October 26, 2004, a certified list of the names eligible for appointment. Lobue was not on that list.
On December 3, 2004, the City determined, and represented to the DOP, that there would be "expected additional vacancies" in the police captain's rank. It therefore requested a new list with six names of people eligible for promotion to captain. In response, the DOP issued a new certified promotional list on December 16, 2004, slated to expire on March 16, 2005.*fn3 Again, Lobue was not on that list.
On January 1, 2005, one of the City's police captains, James Tuminardo, retired, creating a vacancy at that rank. His retirement changed the organizational chart as follows:
9 to 17 Other Lieutenants
The City selected Lieutenant James Fitzsimmons to fill Captain Tuminardo's vacancy from the extant promotional list. Fitzsimmons' promotion was made official as of January 13, 2005. This particular appointment, which Lobue does not challenge, altered the organizational chart as follows: