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In re Davis

August 9, 2007

IN THE MATTER OF RICHARD DAVIS, POLICE SERGEANT (PM2542D), TOWNSHIP OF PARSIPPANY-TROY HILLS


On appeal from a Final Administrative Decision of the New Jersey Merit System Board, 2006-2833.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically June 7, 2007

Before Judges Kestin and Lihotz.

Respondent Richard Davis and appellant Daniel Bendas are both police officers employed by the Township of Parsippany-Troy Hills (the "Township"). On December 19, 2002, the Township promulgated a list of police officers eligible for promotion, PM2542D (the "first list"). Davis was ranked sixth on that list. The first list was due to expire on December 18, 2005; but, consistent with established policy, was extended until January 12, 2006, when a second list, PM2551G (the "second list") would become available.

Between December 19, 2002, and December 16, 2005, the officers ranked first through fifth on the first list were promoted, left the department, or otherwise not available for promotion. Thus, on the first list, Davis became the next officer eligible for promotion.

On December 20, 2005, the Township passed Ordinance No. 2005:30, which created a position for a police lieutenant, and authorized that a lieutenant be hired. A sergeant, then employed in the police department, was promoted to the lieutenant position, effectively creating an opening for a sergeant position. The Township's police chief, Michael Filippello, received mayoral approval of his request to hire Davis to fill the position of police sergeant on January 4, 2005. The required mayoral approval of Filippello's request was delayed due to a legal challenge to the mayoral election, which in turn delayed the mayor's installation until January 4, 2006.

Also on January 4, 2006, the second list was presented to the Township and subsequently promulgated on January 12, 2006.

Bendas was ranked third and Davis was ranked tenth on the second list.

On January 5, 2006, Filippello requested that the New Jersey Department of Personnel (NJDOP) certify Davis for permanent appointment as police sergeant for the Township. In a letter dated January 10, 2006, NJDOP denied the request to promote Davis as the next eligible candidate from the first list. The NJDOP reasoned that the first list expired on January 3, 2006, when the second list was issued on January 4, 2006. Davis appealed that decision to the Merit System Board (MSB).

In an opinion dated June 7, 2006, the MSB determined, an eligible list is not available . . . when it is issued. Between the issue and promulgation dates, certifications of an eligible list cannot be issued, and appointments cannot be made. Therefore, on the date on which Filippello requested that [Davis's] name be certified for appointment, January 5, 2006, there existed a genuine Police Sergeant vacancy and a valid eligible list, PM2542D [the first list].

MSB ordered that the first list be revived for the police sergeant hiring, and that Davis's name be certified as an eligible candidate at the time of the next certification. If Davis was appointed, and upon successful completion of his working test period, Davis was to receive a retroactive date of permanent appointment of January 12, 2006, for salary-step placement and seniority-based purposes.

Bendas appeals from the MSB decision. After considering these contentions in light of the record, the written and oral arguments of the parties, and the applicable law, we affirm.

The scope of our review of administrative decisions is narrow. Aqua Beach Condo. Ass'n. v. Dep't of Comm. Affairs, 186 N.J. 5, 15 (2006). Appellate courts must defer to an agency's expertise and superior knowledge of a superior field. We will not overturn an agency decision unless we are convinced "that it was arbitrary, capricious, or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies expressed or implicit in the [enabling legislation]." Id. at 16 (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)); see also Karins v. ...


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