On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, L-1752-05.
The opinion of the court was delivered by: Coleman, R. B., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, R. B. Coleman and Gilroy.
In 2004, plaintiff Borough of Glassboro (plaintiff or the Borough), a non-civil service municipality whose police officers are represented by defendant Fraternal Order of Police, Lodge No. 108 (the union or FOP), appointed Sergeant William Highley to the position of lieutenant, ahead of Sergeant Peter Amico, who scored higher on the first two portions of the Borough's three-step promotional procedure.
On August 19, 2004, the union, on behalf of Amico, filed a contractual grievance for improper denial of promotion and on June 16, 2005, the matter was submitted to arbitration before the Public Employment Relations Commission (PERC). On July 26, 2005, the arbitrator issued an Award and Opinion, finding that Amico "was improperly denied a promotion to Lieutenant" because there was "nothing in the record to determine what factors in Phase III caused the grievant to drop to second place accept [sic] the suggestion from the testimony of the Borough witnesses that it must have been that the grievant, a longtime resident of Glassboro and a graduate of its high school, had recently moved away from the Borough." Hence, the arbitrator directed the Borough to promote Amico to that position as of July 8, 2004, and to pay him all lost back pay.
On October 24, 2005, the Borough moved in the Law Division to vacate the arbitrator's award but, by order dated December 9, 2005, the Law Division denied that motion. The Law Division judge opined that as long as the arbitrator's decision was "reasonably debatable," the decision must be allowed to stand.
On December 28, 2005, the Borough filed a motion for reconsideration, which was also denied, by order dated January 20, 2006; however, in that order the court granted a temporary stay of its decision, pending an appeal to the Appellate Division. Thus, although the court upheld the arbitrator's determination that the promotion of Highley after the third step of the promotion procedure was arbitrary, capricious and unreasonable, it permitted him to occupy the position of lieutenant for forty-five days or if appealed, to the point of decision on application for a stay to be decided at that level.
The Borough filed its notice of appeal on February 24, 2006, and on May 11, 2006, this court granted the Borough's motion to continue the stay entered by the Law Division pending a final decision by the Appellate Division. As a result, Highley remains in the position of a lieutenant, though the arbitrator and the Law Division both had determined that Sergeant Amico should have been promoted to that position. We now affirm the decision of the Law Division and vacate the stay, pursuant to which Highley has occupied the position of lieutenant. As ordered by the arbitrator and affirmed by the Law Division, Amico is entitled to be lieutenant.
The Borough's promotional process consists of three phases or stages. In the first phase, the applicant takes a written and oral exam, administered by the International Association of Chiefs of Police. The oral component consists of an interview with four independent chiefs of police and applicants are scored based upon their answers. In the second stage, the applicant is interviewed by the Borough Chief of Police, who assesses the applicant's background and experience and assigns a score. The Chief also reviews the applicant's seniority, education, personnel record, commendations, evaluations, disciplinary infractions or suspensions. The applicant's scores from these first two phases are combined and a cumulative score is calculated.
The third phase is a subjective oral examination in which only the three highest ranked applicants from the first two phases participate. In that phase, the applicant is questioned by the Borough Public Safety Committee, which consists of Borough Council members, the Borough Administrator, and the Chief of Police. This stage includes a "closing statement" portion, where each candidate is permitted to make any further comments in support of his or her application.
In early 2004, the Borough had one opening for the position of lieutenant. Three sergeants -- Peter Amico, William Highley, and Gregory Bruynell -- submitted their applications and at the conclusion of the first two phases of the Borough's three-step promotional process, Amico was in first place with a score of 93.8; Highley was in second place with a score of 92.4; and Bruynell was in third with a score of 80.24. On July 7, 2004, all of the candidates were interviewed by the Public Safety Committee, after which the Borough awarded the position of lieutenant to Highley.
Amico's grievance against the Borough was heard by an arbitrator on June 16, 2005. The arbitrator found that Phase III of the Borough's promotional process "subjectively chang[ed] the standing of the top two candidates for the promotion to lieutenant." The arbitrator observed that he had nothing in the record to determine how Phase III caused Amico, who had been leading by 1.4 points after the first two stages, to fall behind Highley in the standings. He noted that he found nothing in the promotional policy to indicate that the Phase III interview might add to or reduce the 100 percent cumulative score achievable in the first two phases. He stated that the questions and answers in Phase III were not on the record and were not scored, and there was nothing to indicate how well each of the applicants performed in their respective interviews. Ultimately, the arbitrator then concluded that he had: nothing in the record to determine as to what factors in Phase III caused ...