August 25, 2008
IN THE MATTER OF MARK CAMPBELL, FIRE FIGHTER (M2297E), TOWNSHIP OF TEANECK
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2008
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 cause to remove his name from the firefighter eligible list. Specifically, the Board's decision stated the following:
[T]he appellant asserts that he did not agree to any plan to defraud the appointing authority regarding Silverman's residency. He maintains that the arrangement was entered into prior to his lease agreement. Moreover, the appellant indicates that he advised Dixon repeatedly to have Silverman change his address and eventually informed the appointing authority. The appointing authority contends that the appellant participated in the plan and did not inform the appointing authority or the DOP until over a year later. The Board has carefully reviewed the matter and finds that the appellant's conduct warrants his removal from the eligible list. The appellant was well aware of the arrangement when he moved into Dixon's apartment. He did not inform the DOP or the appointing authority of Silverman's incorrect address when he received the notices of the date of the examination in September 2003. Rather, he have Silverman's notice to Dixon, and thus, allowed the arrangement to continue for over a year. Moreover, the appellant is applying for a position as a Fire Fighter candidate. The Board is mindful that Fire Fighters, like municipal Police Officers, are held to a higher standard. Applicants must have good character and be trustworthy.
The appellant's inaction is indicative of the exercise of poor judgment which is not conducive to the performance of the duties of a Fire Fighter. Accordingly, the appellant's background constitutes sufficient cause to remove his name from the Fire Fighter (M2297E), Township of Teaneck, eligible list.
Campbell filed a complaint in the Chancery Division seeking, among other things, a reversal of the Board's decision and reinstatement to the eligible list, as well as back pay, court costs, counsel fees, compensatory damages, and punitive damages. The Board and Teaneck moved for dismissal. Campbell cross-moved, seeking leave to remove the count relating to appeal of the Board's decision to the Appellate Division. Judge Robert P. Contillo granted Campbell's motion for leave to remove to the Appellate Division.
Campbell appeals. We affirm. It is well-settled that a decision of the Merit System Board should not be upset on appeal unless it is arbitrary, capricious, unsupported by substantial credible evidence contained in the record, or in violation of express or implicit legislative policies. In re Taylor, 158 N.J. 644, 656-57 (1999); In re CAFRA Permit No. 87-0959-5, 152 N.J. 287, 304 (1997); Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); In re Juvenile Detention Officer Union County, 364 N.J. Super. 608, 614 (App. Div. 2003). Pursuant to N.J.A.C. 4A:4-4.7(a)(1), "[t]he name of an eligible may be removed from an eligible list for any of the . . . causes for disqualification listed in N.J.A.C. 4A:4-6.1." These causes include having "made a false statement of any material fact or attempted any deception or fraud in any part of the selection or appointment process" and "[o]ther sufficient reasons." N.J.A.C. 4A:4-6.1.
Campbell argues that he was denied fair notice and due process. This argument seems to be based on the fact that the basis of the Board's decision differed from the DOP's initial decision, i.e., the DOP upheld the removal of his name based on its finding that Campbell had failed to establish residency as of the close of the examination date. The Board found that Campbell had established residency but that his removal was warranted based on his involvement in Silverman's residency fraud. Campbell argues that he was deprived the opportunity to fully litigate his involvement in the scheme.
It is clear, however, that Campbell was put on notice that Teaneck was arguing that his involvement in the residency scheme was a sufficient basis for his removal from the list, because Teaneck made this argument in their submission to the Board. Moreover, Campbell responded to this argument in his submission to the Board.
N.J.S.A. 11A:2-6(b) authorizes the Board to review all appeals within the DOP de novo on the written record and render a final administrative decision in those matters. In re Juvenile Detention Officer Union County, supra, 364 N.J. Super. at 614. Thus, we conclude that Campbell was not deprived of notice or opportunity to be heard.
Next, Campbell contends that the Board acted arbitrarily, capriciously, and abused its discretion by basing its decision on a rationale other than the DOP's original rationale. This is simply a rewording of Campbell's first contention. There is no basis for a reversal based on this contention.
Last, Campbell contends that the removal of his name from the list of eligible candidates constituted an unlawful reprisal contrary to the "whistleblower" provision of the New Jersey Civil Service Act (CSA). N.J.S.A. 11A:2-24. That section provides that "[a]n appointing authority shall not take or threaten to take any action against an employee in the career, senior executive or unclassified service in retaliation for an employee's lawful disclosure of information on the violation of any law or rule, governmental mismanagement or abuse of authority." Campbell concedes that he was never a civil service employee, but argues that the provision should apply to him in order to further the legislative intent of the Act. Campbell also argues that he should be protected by the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-4, which proscribes discrimination on the basis of race, creed, or color. Campbell professes a "creed of honor" to his friends, and thus was honor bound not to report Dixon and Silverman until he gave them a chance to turn themselves in. He also argues that he should be protected by the Conscientious Employees Protection Act (CEPA), N.J.S.A. 34:19-1, which proscribes retaliation against an employee on account of disclosure or refusal to participate in any unlawful activity.
We reject these arguments that Campbell was protected by the CSA, LAD or the CEPA. He was never an employee, and at all relevant times was merely a firefighter applicant. Campbell was not the victim of discrimination nor was he retaliated against because he "blew the whistle" on Silverman or Dixon. He offers no cogent argument why the Legislature would have intended to extend protection to him under any of these statutes.
In short, Campbell's involvement in a scheme to allow another candidate to fraudulently use appellant's address in order to meet the Township's residency requirement warrants the Board's action.
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