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In re Davis


August 9, 2007


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

Per curiam.


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. City of Atlantic City, 152 N.J. 532, 540 (1998). However, we are not bound by an agency's conclusions of law. In re Taylor, 158 N.J. 644, 658 (1999).

Arguing that the MSB "inappropriately interpreted and applied the law" and ignored the public policy expressed in N.J.A.C. 4A:4-4.8(b), Bendas contends that the hiring vacancy did not come into effect until January 12, 2006, and that the appointing authority was required to use of second list in filling the vacancy. Certifications of appointment by the NJDOP are made in response to vacancies. See N.J.A.C. 4A:4-4.8(b). Bendas maintains that, because the effective date for the lieutenant position set forth in the hiring ordinance was January 12, 2006, the sergeant's position did not exist until the internal promotion of an officer to lieutenant occurred on January 12, 2006. Thus, Bendas concludes that no "genuine vacancy" existed, as required by N.J.A.C. 4A:4-4.8(b), which permitted the extension of the first eligibility list beyond its normal expiration date. We understand Bendas's argument to require that the Township take no action toward the certification and hiring of a police officer to fill a vacancy until the position to be filled officially commences. We reject this contention.

Generally, a valid appointment cannot be made from an expired eligible list. Saletta v. Civil Serv. Comm'n, 148 N.J. Super. 451, 455 (App. Div. 1977). Certain circumstances allow extension or revival of an eligible list; those circumstances are established by statute or regulation. A recent amendment to NJDOP's promulgated regulations certifies the circumstances when an eligible candidate may be appointed from an expired eligibility list. N.J.A.C. 4A:4-4.8(b) provides:

The appointing authority shall notify the Department of Personnel of the disposition of the certification by the disposition due date in the manner prescribed by the Department. The disposition due date may be extended beyond the expiration date of the eligible list to fill current vacancies. Under no circumstances shall a disposition due date be extended beyond the expiration date of the eligible list when vacancies do not exist. An anticipated vacancy shall not be considered the same as an existing vacancy.

The amended regulation, which prohibits certification of a candidate to fill an "anticipated vacancy," was proposed in response to our unpublished decision, In re William J. Brennan, No. A-3104-00 (App. Div. June 18, 2002). See 37 N.J. Reg. 4351(a) (identifying Brennan decision as impetus for amendment).

Brennan was a firefighter employed by the Township of Teaneck. A list of eligible candidates for promotion within the fire department, initially promulgated in September 1996, was to expire on September 4, 2000. "Expected retirements at the end of 2000," resulted in the Township's request to promote candidates from the existing expired list. NJDOP granted the Township's request and four firefighters were promoted on January 1, 2001, using the expired list. We affirmed MSB's determination not to disturb the four promotions made, relying on the NJDOP authorization, but modified the practice such that "good cause" for extending an expired list would not include "anticipated - as opposed to existing or 'current' - vacancies." As noted, the language of the revised regulation reflects this change in policy. See N.J.A.C. 4A:4-4.8(b).

We determine that the creation of a "genuine vacancy" need not coincide with the effective start date of the position as set forth in the ordinance. The Township's interest is to ensure that the police department functions effectively, thereby meeting the goal of assuring public safety. To this end, it is reasonably necessary to take steps to fill a leadership position in the department, such as a police lieutenant or sergeant, as soon as practicable.

In this matter, we find no comparison to the facts of Brennan, in which there was no assurance of position openings when the eligible list expired. The certification of Judith Silver, Township Clerk of Parsippany-Troy Hills, addresses the procedures following the adoption of the Township ordinance on December 20, 2005. She states "a notice of final passage was published in the Daily Record [the township's newspaper of record] on December 23, 2005," verifying that notice of the ordinance's passage was published well before the position's January 12, 2006, start date. The "ordinance became effective on the day that it was adopted," Bruno v. Borough of Shrewsbury, 2 N.J. Super. 550, 554 (Law Div. 1949), only "subject to defeasance if it were not properly published." Ibid. Filippello was required to wait for the resolution of the mayoral legal contest to secure the newly-elected mayor's approval of Davis's promotion to sergeant. Filippello contacted the NJDOP immediately thereafter, on January 5, 2006, to seek Davis's certification, filling the position, which resulted from the Township's approved ordinance.

The distinction between "anticipated" and "genuine" regards the certainty and urgency to fill the vacancy. On this basis, the instant case may be distinguished from Brennan. Here, a township ordinance mandated the creation of a new lieutenant's position, which in turn required that another officer become a sergeant. The eventuality of the vacancy was certain. Conversely, in Brennan, the voluntary retirements were neither announced nor certain and were subject to change at the prerogative of the retiring firefighter. We agreed with the MSB determination that, here, there was a genuine vacancy to be filled when the ordinance was passed. The Township's steps to secure a candidate's certification assuring his or her commencement of employment by January 12, 2006, were reasonable and necessary. The appointment and certification could only be made from the first list as the second had not yet been promulgated, which occurs when candidates on the list may be available for certification and appointment by the NJDOP.



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