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In re Lenge


October 19, 2007


On appeal from the Final Administrative Action of the Merit System Board, DOP Docket No. 2006-2820.

Per curiam.


Argued October 9, 2007

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 Henry and the sixth-ranked applicant to sit for the promotional exam.

After Lenge raised his objection, the Township's Administrator, Robert Czech, submitted a two-page letter to the Department. Czech's letter presented, in considerably more detail than Dunn's prior e-mail, the Township's reasons for having requested an expansion of the applicant pool to lieutenants who had passed their working test period. Among other things, Czech specifically noted that the Township had expected four possible retirements among the eight lieutenants who had over a year of service at that rank. Czech also stated that the Township anticipated a need to make "more appointments in future years" after 2006 to the rank of deputy chief. He further noted that the local police union had specifically asked the Township whether Henry and another interested lieutenant with less than a full year of service would be allowed to sit for the promotional exam, and that the Township had responded that it would not object to their participation.

Lenge's administrative appeal was referred to the Board. After considering his arguments, and the totality of circumstances, the Board ruled that the promotional examination had properly been opened to lieutenants in the Township who had completed their working test period. The Board acknowledged that, pursuant to the terms of N.J.A.C. 4A:4-2.6(a)1, applicants for promotional examinations ordinarily must have "one year of continuous permanent service for an aggregate of one year immediately preceding the closing date in a title or titles to which the examination is open." Ibid. Nonetheless, the Board determined that an exception to that usual requirement was justified here under N.J.A.C. 4A:4-2.6(g). That provision enumerates three permissible grounds for an exception to the one-year service prerequisite:

(g) The time requirements specified in (a) and (b) above may be reduced to completion of the working test period if:

1. There is currently an incomplete promotional list and/or the number of employees eligible for examination will result in an incomplete list.

2. It appears that vacancies to be filled within the duration of the promotional list will exceed the maximum number of eligibles that could result from examination; or

3. Other valid reasons as determined by the Commissioner.

[N.J.A.C. 4A:4-2.6(g).]

In concluding that all three of these justifications under subsection (g) are present here, the Board made the following findings:

In reviewing the instant matter, the Merit System Board (Board) finds that the requirements set forth in N.J.A.C. 4A:4-2.6(g) for opening the examination to completion of the working test period were met. The appointing authority asserts that it had indications that only four of the eight possible eligible applicants with over a year of permanent service as a Police Lieutenant would apply for the subject examination. This would have resulted in a maximum of four applicants on an eligible list (and possibly less if one or more failed the examination). Additionally, it indicated that there was the possibility of more than one appointment in 2006 and more appointments beyond that. In fact, there were two appointments made in April 2006, which would have left only two eligibles, i.e., an incomplete list. Therefore, it was possible that the number of vacancies to be filled within the duration of the promotional list could have exceeded the number of eligibles that would have resulted from an examination. Further, the information provided by the appointing authority would certainly qualify as other valid reasons to open the examination to those applicants who completed their working test period.

Lenge appeals, contending that the Board's decision was arbitrary and capricious. He particularly takes issue with the procedural manner in which the Department and the Board considered the merits of the Township's request to expand the promotional applicant pool. His arguments flow from a perception, as stated in his brief, that the "Board's conclusions were based on developments occurring after the examination process had ended, rather than on what was known by [the Department] when the promotional announcement was issued."

We consider the Board's final decision through the prism of a limited standard of appellate review. "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

As the Supreme Court noted in Herrmann, "[t]hree channels of inquiry inform the appellate review function." Id. at 28. The reviewing court must first consider "'whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law[.]'" Ibid. (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). Second, the court must assess "'whether the record contains substantial evidence to support the findings on which the agency based its action[.]'" Ibid. (quoting Mazza, supra, 143 N.J. at 25). Third, the court should evaluate "'whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.'" Ibid. (quoting Mazza, supra, 143 N.J. at 25). "When an agency's decision meets [these] criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid. (citing In re License Issued to Zahl, 186 N.J. 341 (2006); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

The administrative agency involved in this case, the Department of Personnel, along with the Merit System Board as a sub-agency within the Department, together have substantial and long-recognized expertise in civil service matters. The Department's authority is established 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 Department "shall implement and enforce this title." Title 11A governs the examination, selection, and appointment of civil service employees, including promotions. The Department, and the subordinate units within it, has the day-to-day responsibility to address disputes arising out of civil service promotional procedures. N.J.A.C. 4A:4-6.3(a).

Given that expertise, we do not overturn those administrative decisions unless they are clearly shown to be arbitrary and capricious, or lacking substantial evidential support. Campbell, supra, 39 N.J. at 562.

In this particular case, we are confronted with issues arising out of the meaning and application of N.J.A.C. 4A:4-2.6(g), a regulation promulgated by the Department of Personnel pursuant to the Commissioner's legislatively-delegated authority under N.J.S.A. 11A:4-1.2. Although we are not bound by the Department's construction of its own regulation, we accord considerable weight to the agency's interpretation unless it is inconsistent with the governing legislation. DiMaria v. Bd. of Trs., 225 N.J. Super. 341, 351 (App. Div.), certif. denied, 113 N.J. 638 (1988); see also In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 415, 441 (2004) (Zazzali, J. concurring).

In that vein, we note that N.J.A.C. 4A:4-2.6(g), which was adopted by the Department in 1988 as part of broader rule-making addressing civil service promotions, see 20 N.J.R. 1195 (June 6, 1988), has not been previously judicially construed in a published opinion. Nor does the history of the regulation offer useful commentary*fn2 or other insight on its intended meaning, or about the procedures that are supposed to be followed when a municipality requests the Department to apply it. See 20 N.J.R. 327, 332 (February 16, 1988)(rule proposal); 20 N.J.R. 1183, 1195 (June 6, 1988)(rule adoption). We are left with the bare words of the regulation, and the Department's own interpretation.

Having considered the arguments of the parties and the record as a whole, we do not conclude that the agency's substantive determination here was arbitrary or capricious. Under the well-established "rule of three" for civil service appointments, the Township was entitled to have at least three eligible choices for each of the two promotions it made to deputy police chief. N.J.S.A. 11A:4-8; N.J.A.C. 4A:4-4.8; see also In re Code Enforcement Officer, 349 N.J. Super. 426, 430 (App. Div. 2002). Because of retirements, only four Township police lieutenants with a full year of continuous service in that title sat for the deputy chief exam. Consequently, such a list would have been depleted to only two names after the Township made the subject appointments in April 2006. The list therefore would have been rendered incomplete within only a few short months after its creation, and would have not been sufficient to accommodate the rule of three if any more vacancies arose during the remainder of its three-year life. Although that ensuing deficiency may not satisfy the literal terms of subparts (1) or (2) of N.J.A.C. 4A:4-2.6(g), we conclude that the scenario qualifies for an exemption at least within subpart (3) of that regulation, under the broad umbrella of "[o]ther valid reasons as determined by the Commissioner." N.J.A.C. 4A:4-2.6(g).

Common sense dictates that the appointing authority and the Department should not have to expend the time and effort to generate a new promotional list that is apt to be obsolete shortly after it is created. The general expectation in N.J.A.C. 4A:4-3.3(a) that such lists are normally supposed to be useful for three years further buttresses the reasonableness of the agency's analysis. The agency's decision was neither arbitrary nor capricious.

Given the objective circumstances, including the unavoidable numerical implications of the paucity of eligible lieutenants within the Township, we discern no real harm flowing to appellant from the procedural manner in which the Township applied for and received an expansion of the applicant pool here under N.J.A.C. 4A:4-2.6(g).

However, in future situations we urge the Department to require appointing authorities to present a reasonably complete statement of their reasons for seeking relief under N.J.A.C. 4A:4-2.6(g) at the time they apply for it, rather than, as here, shoring up the request with a more detailed submission after the examination has already been administered and a list has been generated. Likewise, we prospectively suggest that the Department memorialize its reasons for granting or denying such requests at the time it acts upon them, so that there is a contemporaneous record of what was decided and why. Such improvements in the process can only help foster public confidence in the integrity of the civil service system, and to minimize disputes or misunderstandings among candidates. These measures also will obviate the need to reconstruct the administrative record after the fact.


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