On appeal from the Final Administrative Action of the Merit System Board, DOP Docket No. 2006-2820.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Sabatino.
John Lenge, a police lieutenant in Middletown Township ("the Township"), appeals a final administrative decision of the Merit System Board ("the Board") dated September 21, 2006. The Board's decision validated a promotional list for deputy police chief in the Township resulting from scores on a civil service examination. Pursuant to an exception granted by the Department of Personnel ("the Department") under N.J.A.C. 4A:4-2.6(g), the examination had been opened to applicants in the Township who had completed a working test period at the lieutenant rank but had not served in that rank for a full year.
We affirm, although we also provide certain prospective guidance to the Department concerning its future handling of requests it receives from appointing authorities to expand an applicant pool under the cited regulation.
In the summer of 2005 the Township needed to fill a vacancy in the title of deputy police chief. At that time, the Township was also considering whether it would create an additional deputy chief position. The deputy chief title in the Township is a civil service position, subject to hiring and promotional procedures administered by the Department. However, there was no outstanding promotional list for deputy chief in the Township from which to fill these one or two anticipated slots.
Consequently, Edward Dunn, an assistant administrator in the Township, transmitted an e-mail to a staff member of the Department on June 17, 2005. The e-mail read, in pertinent part, as follows:
Would you please note that the Township of Middletown would like to schedule a Deputy Police Chief Promotional exam as outlined in the NJDOP exam alert (announcement in September and test in December). The salary range for Deputy here is $85,000-$118,105. We have no Captain rank in Middletown; therefore the test would be open to at least all lieutenants. (We would like to include all lieutenants who have completed the working test period for that rank). Currently there is one vacancy for Deputy Chief and the Township is considering adding another Deputy slot. Please advise if you need further info. Thanks, Ed After receiving Dunn's e-mail request, the Department scheduled a promotional examination for deputy chief. The Department administered the exam not only to police lieutenants*fn1 in the Township who had been at that lower rank for more than a full year, pursuant to the usual requirements of N.J.A.C. 4A:4-2.6(a)1, but also acceded to the Township's request to open the exam further, specifically to lieutenants who had served in that title less than a full year but who had completed their working test periods.
The record reflects that at the time the promotional examination was announced, there were eight lieutenants in the Township, including Lenge, who had a year or more of continuous permanent service immediately prior to the application closing date. However, the Township expected that four of those eight lieutenants eligible to take the exam would soon be retiring or otherwise would not seek a promotion to deputy chief, although that expectation was not explicitly stated in Dunn's e-mail.
Consequently, the Township wanted the applicant pool expanded beyond the usual limits, so that it would have more qualified applicants to choose from after the promotional exam was administered. The Department agreed, opening the exam to lieutenants who had completed their working test period as of November 30, 2005.
The exam was administered on December 7, 2005. Six applicants sat for the exam, including two applicants who had only completed their working test period as lieutenants. The test scores produced a list with six persons eligible for promotion. Lenge was ranked third on the list. The candidate ranked first on the list, Eugene Hannafey, had served as a lieutenant for more than a year. However, the candidate ranked second on the list was Frederick Henry, a military veteran, who had been permitted to sit for the exam because he had completed his working test period as lieutenant. The other applicant who passed the test without serving a full year as lieutenant ranked sixth.
The promotional list was issued by the Department on February 9, 2006. The list is set to expire in three years, i.e., on February 8, 2009, pursuant to N.J.A.C. 4A:4-3.3(a). Having passed an ordinance in the interim creating a second vacancy for deputy chief, the Township selected the first and second-ranked applicants, respectively Hannafey and Henry, for the promotions. The two promotions became effective April 17, 2006, conditioned on the outcome of this litigation.
Following these events, and believing that he was improperly passed over for the deputy chief promotion, Lenge filed an administrative challenge with the Department. He maintained, as he does on this appeal, that the Department acted improperly in allowing ...