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Lobue v. City of Hoboken

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 8, 2007

DANIEL LOBUE, III, PLAINTIFF-APPELLANT, AND WILLIAM BRENNAN, PLAINTIFF,
v.
CITY OF HOBOKEN, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, HUD-L-2111-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 7, 2007

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.

I.

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:

October 17, 2004

CHIEF Chief LaBruno

CAPTAINS

1 Capt. Carrier

2 Capt. Cunning

3 Capt. DiMonde

4 Capt. Falco

5 Capt. Garcia

6 Capt. Lisa

7 Capt. Simone

8 Capt. Tuminardo

LIEUTENANTS

1 Lt. Competello

2 Lt. Edgar

3 Lt. Ferrante

4 Lt. Fitzsimmons

5 Lt. Lobue

6 Lt. McGurk

7 Lt. Mecka

8 Lt. Romano

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:

January 1, 2005

CHIEF Chief LaBruno

CAPTAINS

1 Capt. Carrier

2 Capt. Cunning

3 Capt. DiMonde

4 Capt. Falco

5 Capt. Garcia

6 Capt. Lisa

7 Capt. Simone

8 Vacancy

LIEUTENANTS

1 Lt. Competello

2 Lt. Edgar

3 Lt. Ferrante

4 Lt. Fitzsimmons

5 Lt. Lobue

6 Lt. McGurk

7 Lt. Mecka

8 Lt. Romano

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:

January 13, 2005

CHIEF Chief LaBruno

CAPTAINS

1 Capt. Carrier

2 Capt. Cunning

3 Capt. DiMonde

4 Capt. Falco

5 Capt. Fitzsimmons

6 Capt. Garcia

7 Capt. Lisa

8 Capt. Simone

LIEUTENANTS

1 Lt. Competello

2 Lt. Edgar

3 Lt. Ferrante

4 Lt. Lobue

5 Vacancy

6 Lt. McGurk

7 Lt. Mecka

8 Lt. Romano

9 to 17 Other Lieutenants

On February 10, 2005, the Merit System Board ("the MSB" or "the Board"), a subagency within the DOP, determined that Lobue had been ineligible to sit for the promotional exam because his application had been untimely. On March 18, 2005, Lobue requested the Board's reconsideration of that determination.*fn4

In the meantime, the City made several controversial personnel decisions. On March 10, 2005, the City promoted Lieutenants Kenneth McGurk and Anthony Romano, Jr. to captain. These two promotions were made despite the fact that no vacancies existed at the rank of captain, which was already filled with the maximum authorized number of eight. The City attempted to justify this increase in the number of captains on grounds of necessity. In any event, the two promotions to captain yielded the following:

March 10, 2005

CHIEF Chief LaBruno

CAPTAINS

1 Capt. Carrier

2 Capt. Cunning

3 Capt. DiMonde

4 Capt. Falco

5 Capt. Fitzsimmons

6 Capt. Garcia

7 Capt. Lisa

8 Capt. McGurk

9 Capt. Romano

10 Capt. Simone

LIEUTENANTS

1 Lt. Competello

2 Lt. Edgar

3 Lt. Ferrante

4 Lt. Lobue

5 Vacancy

6 Vacancy

7 Lt. Mecka

8 Vacancy

9 to 17 Other Lieutenants

Subsequently, on April 5, 2005, the City made additional personnel decisions that were also controversial. These decisions occurred only one day before the new promotional list, generated from the results of the most recent captain's examination, was expected to be issued by the DOP. In particular, the City created a new title of "inspector" in the police department, ranked below the police chief but above the rank of captain. At the same time as it created that new title, the City promoted Captains John Carrier, Edward Cunning and Edelmiro Garcia, Jr., to fill the inspector positions. On that same date, the City elevated three lieutenants -- Dennis Edgar, Edward Mecka, and Fred Ferrante -- from the expiring promotional list to captain. Three new lieutenants were appointed to fill their vacancies. The resulting new organizational chart was as follows:

April 5, 2005

Chief Chief LaBruno

INSPECTORS

1 Insp. Carrier

2 Insp. Cunning

3 Insp. Garcia

CAPTAINS

1 Capt. Edgar

2 Capt. Ferrante

3 Capt. DiMonde

4 Capt. Falco

5 Capt. Fitzsimmons

6 Capt. Mecka

7 Capt. Lisa

8 Capt. McGurk

9 Capt. Romano

10 Capt. Simone

LIEUTENANTS

1 Vacancy

2 Vacancy

3 Vacancy

4 Lt. Beck

5 Lt. Bartley

6 Lt. Cahill

7 Lt. Competello

8 Lt. Lobue

9 to 17 Other Lieutenants

All of these appointments to captain and inspector were made without notice to the public.

The next day, April 6, 2005, DOP issued to the City a new promotional list, listing six eligible candidates for promotion to captain. Lieutenant Competello was ranked first on this list. Lobue was ranked number two. However, because of the Board's determination that Lobue's application to sit for the exam had been untimely filed, he was consequently deemed ineligible to remain on that certified list.

In the wake of these personnel decisions, Lobue filed a prerogative writ action in the Law Division on April 22, 2005. The verified complaint describes Lobue as "a resident, property owner and taxpayer in the City of Hoboken, New Jersey," as well as "the number two ranked eligible for promotion to police captain on the current promotional list[.]" Joining Lobue as a co-plaintiff was William Brennan,*fn5 a resident of Wayne who is identified as "a firefighter in a jurisdiction covered by [N.J.S.A.] 11A:4-6" and who asserted "a vested interest in forcing the DOP to comply with its statutory mandate[s]." The lawsuit challenged, and sought to rescind, the City's promotions of Carrier, Cunning and Garcia to inspector, and of Edgar, Ferrante, McGurk, Mecka and Romano to captain. Plaintiffs also sought an order "requiring any future promotions [to] be made [by the City] from a current, unexpired and valid promotional list[.]"

Plaintiffs contended that the challenged promotions were made contrary to the City's table of organization, which authorized a maximum of eight captains and which did not contain the title of inspector. Plaintiffs also contended that the City improperly used a "stale" promotional list for the captain appointments it made on April 5, 2005. Additionally, plaintiffs contended that the City's actions were made without notice to the public, allegedly in violation of N.J.S.A. 10:4-12(b)(8), the Open Public Meetings Act ("OPMA").

The City moved to dismiss the verified complaint pursuant to R. 4:6-2(e), for failure to state a claim upon which relief may be granted. While that dismissal motion was pending, on August 17, 2005, the City enacted Ordinance No. DR-201, which amended Ordinance § 59A-8(A). The new ordinance revised the table of organization in the City's police force so as to authorize one chief, three inspectors, ten captains, seventeen lieutenants, twenty-nine sergeants, and 127 police officers. The ordinance stated, without explanation, that it would be retroactive to July 1, 1986. It also noted that the new position of inspector would expire within one year "from the date of [unidentified] promotions, unless further action is taken by the Hoboken City Council to extend the existence of the position of Inspector."

As Lobue was pursuing his claims, other members of the Hoboken police department were litigating related personnel matters. Two patrolmen with the department, Brian Brereton and James Peck, filed their own prerogative writ action in the Law Division on May 13, 2005. The Brereton complaint (Docket No. HUD-L-2521-05) alleged that the City had unlawfully promoted three patrolmen on April 1, 2005 to the rank of sergeant from an expired promotional list. Additionally, Lieutenant Mark Competello filed an administrative complaint with the MSB challenging, essentially on the same substantive grounds raised here by Lobue, the City's April 5, 2005 appointments of the three inspectors and the promotions of the three lieutenants to captain. Competello likewise sought to have those appointments declared invalid and rescinded.

After hearing oral argument on the City's dismissal motion in the instant case, the Law Division judge issued a bench ruling on October 3, 2005. The judge granted the motion, without prejudice, determining that Lobue had failed to exhaust his administrative remedies within the Department of Personnel.

In the course of his oral decision, the judge made the following pertinent observations:

[T]his court finds that [plaintiff] has failed to exhaust his administrative remedies and that the interests of justice do not require immediate intervention by the court.

Plaintiff Lobue has an administrative appeal pending before the New Jersey Department of Personnel. The two issues on administrative appeal are one, whether plaintiff was ineligible to take the exam because his application was allegedly filed too late.

If so, he would not be eligible to be placed on the new list which became effective on April 6, 2005.

The second issue is whether Hoboken violated department of personnel regulations by making appointments from the old list on April 5, 2005 when no vacancies actually existed.

It is clear that a resolution of these two issues by the Department of Personnel could be dispositive of the case.

The judge was unpersuaded by Lobue's contention that he should follow the reasoning of a different Law Division judge in Brereton, who had decided on September 23, 2005 that Brereton's challenge to the City's April 2005 promotions from patrolman to sergeant should not be dismissed for failure to exhaust administrative remedies.*fn6 The judge did not address Lobue's contentions under the Open Public Meetings Act.

Lobue filed his present appeal (A-1404-05T3) on November 17, 2005. In his appeal, Lobue principally argues (1) that his prerogative writ complaint should not have been dismissed because of a failure to exhaust administrative remedies since the DOP allegedly "does not have the expertise or jurisdiction to analyze and interpret the prescriptions of N.J.S.A. 40A:14-118." He also contends that (2) exhaustion of administrative remedies should be dispensed with in the public interest; (3) the April 2005 inspector and captain promotions violated DOP regulations as well as the City's own promotional ordinance; (4) the City's attempt to ratify the personnel actions in August 2005 was ineffective; (5) his OPMA claims are not subject to administrative exhaustion requirements; (6) the contrary reasoning of the Law Division in Brereton on the exhaustion issue should be followed; and (7) this court should exercise original jurisdiction under R. 2:10-5 and grant Lobue the relief he sought in his prerogative writ action.

Perhaps realizing that it had erred, the City subsequently rescinded its appointments of the three police inspectors. The rescission, which is not dated in the record before us, followed a determination by the DOP's Division of Human Resource Management ("HRM") on October 18, 2005, concluding that the inspector classifications were improper.*fn7 Consequently, the City returned Carrier, Cunning and Garcia to their former titles of police captain. This changed the organization chart as follows:

October 18, 2005

CHIEF Chief LaBruno

INSPECTORS

1 None

2 None

3 None

CAPTAINS

1 Capt. Carrier

2 Capt. Cunning

3 Capt. DiMonde

4 Capt. Falco

5 Capt. Fitzsimmons

6 Capt. Garcia

7 Capt. Lisa

8 Capt. McGurk

9 Capt. Romano

10 Capt. Simone

LIEUTENANTS

1 Lt. Beck

2 Lt. Bartley

3 Lt. Cahill

4 Lt. Competello

5 Lt. Edgar

6 Lt. Ferrante

7 Lt. Lobue

8 Lt. Mecka

9 to 17 Other Lieutenants

Meanwhile, Lieutenant Competello was achieving some success before the MSB on his own challenges to the City's actions. On January 26, 2006, the Board rendered a final administrative decision in I/M/O Mark Competello, MSB Docket No. 2005-4228. In that decision, the Board concluded, among other things, that the City had not violated N.J.S.A. 40A:14-118 nor the applicable civil service regulations in promoting Lieutenants McGurk or Romano to captain on March 10, 2005. Hence, the Board did not require the City to rescind the promotions of McGurk and Romano. However, with respect to the City's six personnel decisions on April 5, 2005, the Board determined that the City had indeed acted improperly. In this regard, the Board found that the City had inappropriately requested the DOP to extend the so-called "disposition due date" of the existing promotional lists that had included the six officers in question. Accordingly, the Board in I/M/O Competello directed the City in January 2006 to rescind the conditional appointments of Edgar, Mecka and Ferrante, and to return those officers to their prior titles as lieutenants.*fn8 The Board declined to grant Competello any further relief, but did instruct that the City must use, for any future promotions to captain, the existing promotional list on which Competello was ranked first.

Following the MSB's initial decision in I/M/O Competello, the City moved for reconsideration. On March 22, 2006, the Board denied the City's application, declaring it a "thinly veiled and frivolous attempt[] at delaying compliance with the orders of HRM and the Board."

The City found it unnecessary to comply with the MSB's directives in I/M/O Competello, because officers Carrier, Cunning, Edgar, Mecka and Ferrante retired shortly after the MSB denied the City's motion for reconsideration. These retirements, which were approved by the State Division of Pensions and Benefits on April 10, 2006, resulted in the following changes to the organization chart:

April 10, 2006

CHIEF Chief LaBruno

INSPECTORS

1 None

2 None

3 None

CAPTAINS

1 Capt.DiMonde

2 Capt.Falco

3 Capt. Fitzsimmons

4 Capt. Garcia

5 Capt. Lisa

6 Capt. McGurk

7 Capt. Romano

8 Capt. Simone

9 Vacancy

10 Vacancy

LIEUTENANTS

1 Vacancy

2 Vacancy

3 Vacancy

4 Lt. Bartley

5 Lt. Beck

6 Lt. Cahill

7 Lt. Competello

8 Lt. Lobue

9 to 17 Other Lieutenants

On April 19, 2006, the City enacted another ordinance, once again amending the table of organization for the police department. This further enactment eliminated the City's recently-created title of police inspector. It also temporarily returned the authorized number of captains back to eight from ten, effective April 5, 2006. As a final restructuring measure, the ordinance further reduced the authorized number of captains from eight to six, effective July 1, 2006.

The upshot of this tortuous procedural and factual history is that, at least as of April 19, 2006,*fn9 the only remaining police captains on the force who had been promoted over Lobue in an allegedly-improper manner, were Captains McGurk and Romano.

Lastly, we note that on November 20, 2006 Lobue filed a separate appeal with this court (A-1626-06T2) challenging the Board's decision of February 9, 2005 holding that he was ineligible to sit for the 2004 promotional examination, and the Board's October 6, 2006 denial of reconsideration of that ruling. That appeal is not before this panel and has not yet been briefed.

II.

The principle of requiring litigants to exhaust administrative remedies before seeking relief in the courts is well established in our jurisprudence. See City of Atlantic City v. Laezza, 80 N.J. 255, 265 (1979); Macleod v. City of Hoboken, 330 N.J. Super. 502, 508 (App. Div. 2000). The exhaustion requirement is "'designed to allow administrative bodies to perform their statutory functions in an orderly manner without preliminary interference from the courts.'" Paterson Redevelopment Agency v. Shulman, 78 N.J. 378, 386-87, cert. denied, 444 U.S. 900, 100 S.Ct. 210, 62 L Ed. 2d 136 (1979). (quoting Brunetti v. Borough of New Milford, 68 N.J. 576, 588 (1975)). This ensures that the agency with appropriate expertise will hear the claims as a preliminary matter. Id. at 387. Additionally, the requirement furthers the policy of avoiding unnecessary adjudication. Ibid.

In general, available and appropriate administrative remedies should be fully explored before judicial action is sanctioned. Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 558 (1979). The interests to be furthered by the exhaustion requirement include: (1) having claims heard initially by a body with expertise in the area; (2) allowing the parties to create a factual record necessary for meaningful appellate review; and (3) pursuing whether an agency decision may satisfy the parties and thus obviate resort to the courts. Abbott v. Burke, 100 N.J. 269, 297-98 (1985).

Here, Lobue's complaint in the Law Division challenging the City's various personnel decisions was styled as an action in lieu of prerogative writs. The rule governing such applications, R. 4:69, explicitly directs parties to exhaust their administrative remedies before seeking judicial relief, unless the interests of justice demand otherwise:

Except where it is manifest that the interest of justice requires otherwise, actions under R. 4:69 [Actions in Lieu of Prerogative Writs] shall not be maintainable as long as there is available a right of review before an administrative agency which has not been exhausted.

[R. 4:69-5 (emphasis added).]

To be sure, as R. 4:69-5 acknowledges, there are limited situations in which the exhaustion of administrative remedies is not mandatory. The exceptions to the requirements include: (1) when only a question of law need be resolved; (2) when the administrative remedies would be futile; (3) when irreparable harm would result; (4) when jurisdiction of the agency is doubtful; or (5) when an overriding public interest calls for a prompt judicial decision. Abbott v. Burke, supra, 100 N.J. at 298.

A court must carefully weigh various considerations to determine whether to require exhaustion of administrative remedies. Ibid. Those considerations include "the relative delay and expense, the necessity for taking evidence and making factual determinations thereon, the nature of the agency and the extent of judgment, discretion and expertise involved," and any other pertinent factors that may aid in determining whether "the interests of justice dictate the extraordinary course of bypassing the administrative remedies made available by the Legislature." N.J. Civil Serv. Ass'n v. State, 88 N.J. 605, 613 (1982).

The issues presented in this case strongly implicate the jurisdiction and expertise of the DOP. The DOP's authority is set forth in the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6, specifically N.J.S.A. 11A:2-2, which states that the DOP "shall implement and enforce this title," and N.J.S.A. 11A:4-1.2, which grants the Commissioner of the DOP authority to promulgate rules and regulations to effectuate the statute. Title 11A governs the examination, selection, and appointment of civil service employees, including promotions. The DOP, and the subordinate units within it including the MSB and the HRM, is therefore the agency that has been granted jurisdiction to hear appeals related to civil service promotional procedures. N.J.A.C. 4A:4-6.3(a).

Lobue argues that the Law Division erred in dismissing his civil action without prejudice, and that one or more of the exceptions to the exhaustion requirement apply. As his primary argument, Lobue contends that determining the propriety of the challenged personnel decisions involves pure questions of law that are cognizable in the courts. In this regard, Lobue cites to Reuter v. Borough Council of Fort Lee, 328 N.J. Super. 547, 554 (App. Div. 2000), aff'd in part, rev'd in part on other grounds, 167 N.J. 38 (2001), in which we construed N.J.S.A. 40A:14-118 to require that a municipality making appointments within its police department must do so in a manner consistent with local ordinances and the established table of organization for the department. Lobue argues that the City's patent non-compliance with its existing ordinances and table of organization raises a straightforward legal issue that does not necessitate the DOP's administrative expertise. Lobue also suggests that bypassing the administrative agency in these circumstances would serve an overarching public interest.

Although we agree that the City's personnel decisions in question raise several legal issues, those issues were not presented to the Law Division in a vacuum. At the very same time that the Law Division was entertaining Lobue's prerogative writ action, Lobue and Lieutenant Competello were seeking relief from the DOP concerning the City's actions. The Competello case in particular squarely attacked the City's promotions of the three captains to the new title of inspector and the five lieutenants to captain, arguing that those appointments were inconsistent with the City's table of organization and with pertinent civil service laws and regulations. Although Lobue's own administrative appeal initially focused upon his perceived ineligibility to sit for the captain's promotional examination, it is evident from the MSB's two written decisions in I/M/O Lobue that Lobue expanded his administrative claims to include arguments comparable to these set forth by Competello, challenging the City's promotional decisions as ultra vires.

Given that Lobue and Competello were administratively litigating overlapping issues before the DOP, the Law Division in this case wisely decided to let the administrative process run its course. To do otherwise would have risked inconsistent outcomes in the judicial and administrative forums. For example, it is entirely conceivable that the DOP might have invalidated all of the personnel actions at issue, while the Law Division may have declared them valid, or vice-versa. Or the two tribunals might have disagreed on some, but not all, of the challenged appointments. As our case law instructs, such inconsistencies are to be avoided. See City of Hackensack v. Winner, 82 N.J. 1, 32-33 (1980) (noting that inconsistent administrative adjudications diminish confidence in the administration of justice).

The wisdom of enforcing the exhaustion requirement of R. 4:69-5 here is underscored by remedy considerations. The challenges raised by Lobue and Competello affected not only themselves, but also at least eight other police department employees who the City respectively had promoted to police inspector and captain. If any of those personnel decisions were rescinded, that ruling would have had ripple effects for others within the police force. The DOP has expertise in regularly dealing with such interdependent remedial issues. As it turned out, the DOP agreed with Competello and Lobue that at least six of the challenged appointments were defective. The DOP went on to fashion a remedy. It would have been counter-productive for the Law Division to interfere with the ongoing administrative process, particularly given that other affected employees such as Competello were not parties to Lobue's court action. We discern no error in the Law Division's application of the exhaustion requirement in these circumstances.

The City has argued to us that its personnel decisions at issue should all be declared valid retroactively, under a theory of ratification. Specifically, it contends that the City Council's subsequent adoption of Ordinance DR-201 on August 17, 2005, increasing the authorized allotment of police captains from eight to ten and temporarily creating the new title of police inspector, legitimized the City's prior appointments that had exceed the limits of the earlier table of organization. See Casamasino v. City of Jersey City, 158 N.J. 333, 347 (1999).

We need not resolve this issue, which we note was also considered by the DOP in its review of the Competello and Lobue matters. It does strike us as peculiar that the City would first expand its complement of police captains from eight to ten, and then shrink the rank from ten to eight and then to six -- as well as create and then eliminate the title of police inspector -- all within about one year's time. We also perceive, without deciding the issue, that the MSB had a sound basis to question the abruptness of the City's numerous April 5, 2005 appointments, contrary to its table of organization on the eve of the promulgation of new promotional lists. In any event, we confine our disposition to sustaining the Law Division's dismissal of the verified complaint on exhaustion grounds.*fn10

We do, however, modify the Law Division's order in two respects.

First, we acknowledge that Lobue filed the prerogative writ action in two distinct capacities as an affected member of the police force and also as a resident and taxpayer of Hoboken. As to the latter, we are persuaded that the doctrine of administrative remedies should not defeat Lobue's access to the courts as a city resident. The DOP presumably would not have entertained Lobue's claims had he not been an affected employee in the police department. As framed in the verified complaint, the City's alleged violation of its own ordinances, and its corresponding table of organization, caused injury to the citizens of Hoboken at large, including plaintiff. See Reuter, supra, 328 N.J. Super. at 554 (observing the "public impute" of requiring the passage of an ordinance for decisions concerning the organizational composition of local police departments). As a Hoboken resident and taxpayer, Lobue was entitled to challenge the legality of the City's personnel actions in court, particularly to the extent they would have increased the department's taxpayer-funded payroll, irrespective of his employment within that department.

Given the dual nature of Lobue's standing, we note that a more appropriate course in the Law Division would have been to retain jurisdiction over Lobue's "citizen claims" but to stay the disposition of those claims while Lobue (and also Competello) were litigating overlapping issues before the DOP. As we have already noted, there would be no sense in allowing concurrent administrative and judicial proceedings that could have led to inconsistent rulings and remedies. A stay of Lobue's ancillary claims as a taxpayer, rather than their outright dismissal on exhaustion grounds, would have more fairly achieved the same goal of avoiding inconsistency. We thus modify the Law Division's order in that respect.

Second, we also consider Lobue's argument that the City's actions should have been nullified for non-compliance with OPMA. The discrete issue is one that also does not implicate the administrative expertise and processes of the DOP. The City argues that it was permitted to omit any public notice of the challenged police appointments, and to exclude the public from the City Council meeting at which those appointments were made, under the OPMA exception set forth at N.J.S.A. 10:4-12(b)(8) covering "the appointment [or] promotion . . . of any specific . . . public officer . . . employed or appointed by the public body . . . [.]" In opposition, Lobue contends that the "promotion" exception to OPMA is inapplicable, because the City did not notify the public, which included interested and affected members of the police department such as himself, of the Council's intention to consider the appointments at a forthcoming meeting. See Roman v. Twp. of South Hackensack, 302 N.J. Super. 568 (App. Div.), certif. denied, 152 N.J. 191 (1997) (voiding police promotions, where the public had not been advised in advance of the proposed promotional decisions). We need not resolve this issue, as it was not decided below by the Law Division judge. See Ins. Co. of North America, v. Gov't Employees Ins. Co., 162 N.J. Super. 528, 537 (App. Div. 1978). We simply note that the Law Division's without-prejudice dismissal of the complaint on exhaustion grounds should not have swept in this independent claim.

The procedural question now arises as to what, if any, further judicial proceedings are necessary, now that (1) the DOP has rendered several administrative determinations, (2) the City has rescinded most of its challenged decisions, and (3) at least five of the promoted officers have retired. The City contends in a supplemental post-argument brief that we should consequently dismiss this case, with prejudice, as moot. We agree that the issues originally presented by Lobue in his verified complaint have largely been eclipsed by the course of events and the passage of time. Nonetheless, we recognize that at least one and possibly two present captains, i.e., Romano and (if he has not yet retired) McGurk, were promoted above Lobue through the City's challenged actions. We are mindful that the DOP validated the appointments of Romano and McGurk in I/M/O Competello, making their promotions administratively permanent. Even so, Lobue may be entitled to judicial relief concerning those promotions if they are demonstrated to be in violation of OPMA.

Additionally, Lobue has pending his separate appeal in A-1626-06T2, seeking review of the MSB's determination that he was too late in applying to sit for the captain's promotional exam. The outcome of that appeal, either way, may affect future decisions related to this matter. If, for example, Lobue loses that appeal, then his sole standing in any future proceedings would be as a resident-taxpayer, without any personal entitlement to displace one of the captains promoted by the City in alleged non-compliance with law. On the other hand, if Lobue's other appeal is successful, and he is reinstated to the promotional list for captain, then broader remedies may be at stake.*fn11

In consideration of these various factors, we conclude that the order of the Law Division dated October 3, 2005 dismissing plaintiff's verified complaint without prejudice should be modified to recognize Lobue's independent standing as a resident taxpayer, and also to preserve his discrete claims under OPMA. As so modified, the order is affirmed. We also direct that any further judicial proceedings be deferred until the disposition of Lobue's appeal in A-1626-06T2. After that appeal is decided, Lobue may refile his verified complaint in the Law Division within thirty (30) days and with appropriate notice to the affected parties, including Captains McGurk and Romano, to pursue whatever remaining relief may be warranted that has not already been resolved either herein or by the DOP. In such proceedings, the Law Division shall consider any other arguments that may be appropriate, including but not limited to ratification, collateral estoppel, OPMA, and mootness. We do not retain jurisdiction.

Affirmed, as modified.


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