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In re Herrick

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 28, 2008

IN THE MATTER OF RICHARD R. HERRICK
IN THE MATTER OF JAMES KOSTOPLIS

On appeal from the New Jersey Department of Personnel.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 15, 2008

Before Judges C.S. Fisher and Grall.

Richard R. Herrick and James Kostoplis are lieutenants in the Hamilton Township Police Department. They served as captains while fellow officers, Captains Bucca and Pollard, were on extended military leave of absence. When Bucca and Pollard completed their leave, Herrick and Kostoplis were returned to the rank of lieutenant. They both sought relief from the Department of Personnel (DOP) by filing what each characterized as an appeal from "major disciplinary" action.

The DOP dismissed the challenges. We consolidate their separate appeals from the DOP's dismissal of their claims.

The facts are not in dispute. By separate notices dated May 1, 2006, the DOP advised Herrick and Kostoplis that their names had been certified for consideration by Hamilton Township for appointment to the title of police captain. At that time, two captains in the Township's police department, Bucca and Pollard, were on extended leaves of absence because they were serving in the military. On May 3, 2006, the Township executed "Requisition/Change Status" forms indicating that Herrick and Kostoplis were promoted to the rank of captain effective May 1, 2006.

Subsequently, the DOP concluded that its certification of Herrick and Kostoplis was issued in error. By separate memoranda dated August 1, 2006, the Township's business administrator informed both officers that the DOP had determined that the Township could not appoint them to the rank of captain.

The letter explained that the DOP had advised that its regulations precluded their promotions on anything other than an interim basis. The letter also notified Herrick and Kostoplis that when Bucca and Pollard returned from their military leave, they would be returned to their permanent titles as lieutenants.

On August 1, 2006, Bucca was assigned to resume his command. Herrick was assigned to command the Criminal Investigations Bureau to serve as a captain, and Kostoplis was assigned to the same bureau to serve as a lieutenant.

On August 14, 2006, the DOP advised Herrick and Kostoplis that the prior certification it had issued was cancelled due to an error.

On August 18, 2006, Kostoplis filed a "major disciplinary appeal" with the DOP. By letter dated October 19, 2006, the DOP dismissed the appeal on the ground that his appointment was made on an interim basis in accordance with N.J.A.C. 4A:4-1.6(f) and the DOP rules did not permit a disciplinary appeal by an interim employee.

On September 28, 2006, Herrick was given notice that Pollard would return from leave on October 2, 2006, and that he would serve in his former rank of lieutenant at that time. On October 16, 2006, Herrick filed a "major disciplinary appeal" with the DOP. He contended that the Township had no authority to demote him. On November 30, 2006, the DOP denied the appeal on the ground that Herrick was not entitled to an appeal because he was returned to his permanent title, which is an action from which there is no right to a disciplinary appeal.

Kostoplis filed a notice of appeal from the DOP's action with this court on January 25, 2007, and an amended notice of appeal on February 20, 2007. His appeal is untimely and is dismissed on that basis. R. 2:4-1(b). If we were to have considered the appeal, however, we would have affirmed for the reasons stated below.

Herrick filed his notice of appeal from the DOP's action on January 16, 2007, and an amended notice of appeal on February 20, 2007. We affirm the DOP's decision, substantially for the reasons stated by the DOP.

The issue in both cases is governed by regulations promulgated by the Commissioner of the DOP pursuant to N.J.S.A. 11A:4-1.2. "When an appointing authority makes an appointment to a specific position . . . or a specific title in local service, an interim appointment shall be made" if the employee is on a leave of absence. N.J.A.C. 4A:4-1.6(b)(1). "Any interim appointment shall remain in effect only during the period of time that the permanent employee is on an approved leave of absence . . . ." N.J.A.C. 4A:4-1.6(f). "At the end of the interim appointment, the appointee shall return to his or her permanent title." N.J.A.C. 4A:1-6(f)(1). The return of an officer to his or her permanent title upon expiration of the title holder's return from leave of absence is not "major discipline." It is an action required by regulation. The arguments raised on appeal lack sufficient merit to warrant discussion in a written opinion. R. 2:11-1(e)(1)(E).

The DOP's dismissal of Herrick's appeal is affirmed; the appeal filed by Kostoplis is dismissed.

20080728

© 1992-2008 VersusLaw Inc.



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