November 1, 2007
CITY OF NEWARK, PLAINTIFF-APPELLANT,
NEWARK FIREFIGHTER'S UNION, DEFENDANT, AND JOHN D. WEST, JR., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, C-383-05. Joshua I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 23, 2007
Before Judges Coburn, Grall and Chambers.
In 2003, defendant, John D. West, was a member of the Newark Fire Department, serving as a Fire Prevention Specialist. In that year, he sought promotion to the then provisional position of Supervising Fire Prevention Specialist. In July 2003, the Director of the fire department refused to consider West for the position, and instead provisionally promoted three civilian Fire Prevention Specialists. In August, the Newark Firefighters Union ("NFU") filed a grievance on behalf of West.
The grievance was submitted to arbitration, and on October 21, 2005, the arbitrator issued a written opinion directing the City to appoint West provisionally to the position of Supervising Fire Prevention Specialist pending the results of a competitive examination.
On November 17, 2005, the New Jersey Department of Personal ("NJDOP") administered a test for the position of Supervising Fire Prevention Specialist. Plaintiff took the test and came out first. The official list was issued on December 22, 2005, and remains in effect until December 22, 2008.
In the meantime, more specifically, on November 21, 2005, plaintiff City of Newark filed a complaint in the Chancery Division seeking to vacate the arbitrator's award on the grounds that he had exceeded his powers under the union contract and that the decision violated public policy. West intervened in the action, apparently because the NFU would no longer represent him since he was then retired from the fire department.
On January 27, 2006, based on the official civil service list, the City promoted three civilian provisionals to the positions in question on a permanent basis. In April 2006, West was removed from the promotional list by NJDOP at the City's request, and West filed an administrative appeal with NJDOP. That appeal is being "held in abeyance pending resolution of the court case."
By order dated May 17, 2006, the Chancery judge confirmed the arbitration award. The City filed a motion for reconsideration, which was resolved by an order dated August 8, 2006. This order modified the earlier order by deleting the term "provisionally," and compelling the City to give West a permanent appointment as a Supervising Fire Prevention Specialist. The City appeals, and we reverse.
In August, the Chancery judge properly recognized that the issue of West's right to appointment as a provisional Supervising Fire Prevention Specialist had become moot as a result of the list for that position created by NJDOP. Once the civil service list is in force, no appointments may be made except from the list until it expires. N.J.A.C. 4A:4-1.5; Lavitz v. Civil Serv. Comm'n, 94 N.J. Super. 260, 264 (App. Div. 1967); Schroder v. Kiss, 74 N.J. Super. 229, 240 (App. Div. 1962). Given the date the list was issued, provisional promotions were no longer possible, which was also true when the first hearing occurred in May 2006.
The only issue presented for resolution by the Chancery judge was whether the arbitrator's award should be confirmed or vacated. Since the decision was moot, it should have been vacated. Nonetheless, the judge decided to modify the arbitrator's decision and order the City to permanently appoint West as a Supervising Fire Prevention Specialist. That decision was made without citation of any authority, and we can find none for it.
A judge's power to modify an arbitrator's award is severely limited by N.J.S.A. 2A:24-9, and this case comes within none of the exceptions provided in that statute. Tretina v. Fitzpatrick & Assoc., 135 N.J. 349, 358 (1994).
West's claim to the permanent position could quite obviously affect one of the employees who have already received permanent appointment, and none of them are parties to this action. Furthermore, if West has any claim to a permanent position, that claim must be based on the civil service test. Such claims come within the jurisdiction of the NJDOP.
In that regard, we note that under the Court Rules an appeal from the decision of a state administrative agency cannot be maintained "so long as there is available a right of review" by the agency "unless the interest of justice requires otherwise." R. 2:2-3(a)(2). The Supreme Court has described the exceptions allowing review before a final administrative determination in the following manner:
The exhaustion of administrative remedies is not an absolute prerequisite to seeking appellate review, however. Exceptions are made when the administrative remedies would be futile, when irreparable harm would result, when jurisdiction of the agency is doubtful, or when an overriding public interest calls for a prompt judicial decision. Garrow v. Elizabeth General Hospital and Dispensary, 79 N.J. 549, 561 (1979). We have frequently held that in a case involving only legal questions, the doctrine of exhaustion of administrative remedies does not apply. Farmingdale Realty Co., v. Borough of Farmingdale, 55 N.J. 103, 112 (1969); Matawan Borough v. Monmouth County Tax Board, 51 N.J. 291, 296 (1968). [N.J. Civil Service Ass'n v. State of New Jersey, 88 N.J. 605, 613 (1982)].
But none of those exceptions applies here. Unquestionably, the NJDOP has jurisdiction respecting challenges to appointment from the list and removal from the list. This is not a case involving only a legal question, and there is no overriding public interest that calls for a prompt judicial decision on who was entitled to the permanent positions. The pending appeal in the NJDOP is the proper venue for initial resolution of this dispute.
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