On appeal from a final order of the Merit System Board, Docket No. 2006-3481.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and C. S. Fisher.
Mark Campbell appeals from the decision by the Merit System Board (Board), upholding the determination by the Department of Personnel (DOP), removing his name from the list of candidates eligible for appointment to the position of firefighter with the Teaneck Fire Department. We affirm.
These are the facts. In February 2003, the DOP announced an examination for the position of firefighter with the Teaneck Fire Department. Section 2-67(b) of Teaneck's Code requires that "[a]ll applicants for appointment to the Fire Department shall be residents of the Township of Teaneck and must maintain continuous residency within the Township of Teaneck from the announced closing date of the New Jersey Department of Personnel examination up to and including the date of appointment." Campbell applied to take the examination. Campbell and his wife executed a one-year lease for and moved into an apartment on Amsterdam Avenue in Teaneck. The prior tenant, John Dixon, was a friend of Campbell and a Teaneck firefighter. Dixon informed Campbell that another friend of his, Scott Silverman, would give the Amsterdam Avenue address as his own in order to establish residency in Teaneck. Silverman had also applied to take the upcoming firefighter examination. Dixon had given permission to Silverman to use the address at the request of fellow Teaneck firefighter Timothy Moots. According to Dixon, Campbell had no problem at that point with Silverman using the address. According to Campbell, he told Dixon that he did not want Silverman using the address.
In September 2003, two letters advising of the date of the written firefighters examination were delivered to the Amsterdam Avenue apartment, one addressed to Campbell and the other to Silverman. Dixon telephoned Campbell and arranged to pick up the letter for Silverman. According to Campbell, he again asked Dixon to tell Silverman to stop using the Amsterdam Avenue address because he did not want to be implicated in the scheme or endanger his own application.
After Campbell and Dixon took the firefighters examination, another set of letters was delivered to Campbell and Silverman at the Amsterdam Apartment address. Once again Dixon picked up the letter for Silverman. According to Campbell, he pleaded with Dixon to have Silverman stop using the address and threatened to report them otherwise. Dixon assured him that Silverman was already in the process of changing his address.
The results of the firefighters examination were released and mailed out to the candidates in June 2004. Both Campbell and Silverman passed the firefighters examination. The DOP issued a certified list of candidates eligible for appointment to the position of Teaneck firefighter. Silverman was ranked second on the list, and Campbell was ranked fifth. Once again, the letters to Silverman and Campbell were delivered simultaneously to the Amsterdam Avenue address. Campbell reported to the Teaneck Municipal Manager that Silverman did not live there. Campbell returned the letter addressed to Silverman to the DOP. When Dixon called Campbell shortly thereafter, Campbell informed him what he had done. Dixon become irate and threatened Campbell that he would make sure he was not appointed to the Fire Department.
The top five candidates were invited to attend a seminar at the Teaneck Police Department to go over the rest of the application process, including a background investigation. In Campbell's case, the investigation was conducted by Detective Michael Richter. According to Richter's report, he canvassed the neighborhood and interviewed several of Campbell's neighbors. All reported that they had known Campbell since he moved there in May 2003. The report concluded that Campbell "appears to meet all requirements, including residency, set for by the Township of Teaneck and the Department of Personnel." The background investigation on Silverman was performed by Detective Thomas Melvin and Detective Lieutenant Dean Kazinci. According to their report, upon canvassing the neighborhood and showing a picture of Silverman to several neighbors, including the apartment superintendent, not a single neighbor recognized him as a former tenant. The report also states that the detectives spoke with Campbell, who reported that Silverman had never lived with him and had fraudulently used his address to establish residency in Teaneck. According to the report, Silverman told the detectives that he and Campbell "had a verbal and cash agreement," and that Campbell reported him only because Silverman scored higher on the eligible candidate list.
The Teaneck Police Department took a sworn statement from Dixon regarding Silverman's use of the Amsterdam Avenue address. Dixon stated that he moved out of the apartment sometime in April 2003, and that Campbell moved in directly after him. Dixon admitted that he gave Silverman permission to give the address as his own, despite the fact that he did not live there.
On October 30, 2004 the Chief of the Teaneck Fire Department called Campbell and offered him a firefighter position. However, when Campbell called back the next day to arrange a start date, he was told that he would not be hired after all. The Fire Chief sent a memo to the Municipal Manager recommending that major disciplinary action be taken against Dixon and Moots. According to that memo, the chief spoke with Moots after learning of Silverman's residency discrepancy. Moots told him that Dixon had allowed Silverman to use the Amsterdam Avenue address in order to meet the residency requirement. Moots also told the chief that Campbell had done the same and did not actually live there. He took over the apartment later. According to Moots, Campbell had known about Silverman's use of the address and had "dimed" on him only after Silverman beat him on the firefighters examination.
The Municipal Manager advised Campbell that he did not meet the residency requirement and that his background check "was deemed to be unsatisfactory." Campbell's attorney requested more information. Counsel for Teaneck responded that Campbell's background check had revealed that he "engaged with others in a scheme to fraudulently represent Teaneck residency in an effort to gain appointment to the Teaneck Fire Department." Then the DOP removed Campbell from the certified list because he did not reside in Teaneck.
Campbell appealed to the DOP. The DOP issued a letter denying Campbell's appeal and upholding the removal of his name from the eligible list. Campbell appealed to the Board. The Board issued a written decision denying Campbell's appeal. The Board found that Campbell had established that he was a resident of Teaneck as of the closing date of the examination, but that his involvement in Silverman's residency fraud constituted sufficient ...