On appeal from a Final Agency Decision of the Merit System Board, DOP Docket No. 2007-3094.
The opinion of the court was delivered by: Sabatino, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, R. B. Coleman and Sabatino.
Kenneth R. Martinez, a Fire Captain in the City of Passaic ("the City"), appeals a final agency decision of the Merit System Board ("the Board") dated July 27, 2007. The Board's decision rejected Martinez's challenge to the promotion of another Fire Captain over him to Deputy Fire Chief, despite that other individual's lack of the requisite prior time-in-grade as a Captain. We affirm the Board's decision in part, vacate it in part, and remand the matter for further administrative action consistent with this opinion.
Appellant Martinez has been employed in the City's Fire Department since 1990. He presently is one of several Captains in the Department. The rank of Captain is below the rank of Deputy Fire Chief.
On December 1, 2005, the City announced that a civil service examination would be administered for promotion to Deputy Fire Chief. For eligibility purposes, the promotional examination had a "closing date" of February 28, 2006.
According to the pertinent civil service criteria, an applicant must serve at least one year at the Captain's rank, as of the closing date, in order to be eligible to sit for the Deputy Chief examination.*fn1 It is undisputed that Martinez had accumulated more than a year of such continuous service as a Captain as of February 28, 2006, and therefore was eligible to take the Deputy Chief examination.
After submitting timely applications, Martinez and others in the Department sat for the Deputy Chief promotional examination on March 30, 2006.*fn2 The exams were then scored. Based on that scoring, Martinez was ranked first among the eligible non-veterans who took the examination. A promotional list reflecting that ranking, listing Martinez first, was promulgated by the State Department of Personnel on June 22, 2006.
On February 1, 2007, the City's incumbent Fire Chief retired. He was replaced as Chief by Deputy Chief Patrick Trentacost. Trentacost's elevation to Chief thus created a vacancy in the title of Deputy Chief. The following day, February 2, Trentacost issued an internal memorandum temporarily designating Martinez as Acting Deputy Chief "until further notice." Martinez assumed those duties for about two months.
The City did not, however, take any action to make Martinez's promotion permanent.
As it turned out, the reason that Martinez was not appointed Deputy Chief was because the City was separately arranging for another candidate, Captain Christopher Szczygiel, to receive the promotion. The relevant circumstances involving Szczygiel are as follows.
As of 2004, Szczygiel held the rank of Lieutenant within the Department. That same year, Szczygiel was ranked second on a promotional list for Captain. When vacancies in the Captain's rank were filled from that list, the City bypassed Szczygiel and instead appointed several lower-ranked individuals.*fn3 These events led Szczygiel to challenge his bypass in adversarial proceedings. Specifically, Szczygiel filed an administrative appeal before the Merit System Board, as well as a civil action in the Law Division against the City, the Mayor, and various other individuals. While those litigation matters were pending, Szczygiel was eventually elevated to Captain on April 11, 2005.
When the announcement for the Deputy Chief examination was circulated in December 2005, Szczygiel decided to pursue the promotion and sit for the test. He did so even though he had only been a Captain since April 2005 and would not have the one-year-in-grade qualification mandated by N.J.A.C. 4A:4-2.6(a)(1) as of the exam's February 28, 2006 closing date. Nonetheless, Szczygiel sat for the March 2006 exam with the other test-takers, including Martinez, while he continued to seek relief in litigation. Szczygiel's exam was not graded, however, pending the outcome of his lawsuit and related administrative appeal.
As a result of negotiations between Szczygiel and the City, a settlement of his litigation was attained in the latter part of 2006. Among other things, the proposed settlement terms included an agreement by the City to grant Szczygiel retroactive Captain status, effective as of June 25, 2004. That retroactive relief, in turn, would make Szczygiel eligible for promotion to Deputy Chief, because he now would be deemed to have accumulated more than one year of service as Captain before the promotional exam's closing date of February 28, 2006. Additionally, the City agreed to pay Szczygiel and his wife a substantial sum of money, inclusive of counsel fees, to resolve the claims raised in the litigation.*fn4 Before the end of 2006, the Board was advised of the pendency of the settlement between Szczygiel and the City. The Board was asked by those parties to ratify the settlement. Counsel did not furnish the Board with a copy of a written settlement agreement, or a draft agreement. Instead, counsel advised the Board of some, but not all, of the terms of the anticipated settlement.
Significantly, Martinez was not contemporaneously notified of the proposed settlement between the City and Szczygiel. Nor, apparently, were the other candidates on the Deputy Chief promotional list notified.*fn5 The Board entertained the proposed settlement without any notice to Martinez, even though he was clearly and directly affected by it.
On January 31, 2007, the Board issued a final decision, approving the proposed settlement terms that the parties had disclosed to it. In that decision, I/M/O Christopher Szczygiel, Fire Captain, MSB Docket Nos. 2005-1345 and 2006-3165, the Board found "good cause" to "relax the provisions of N.J.A.C. 4A:4-2.6(a)(1) and accept the time [Szczygiel] served as Fire Captain after the closing date to satisfy the one-year-in-grade requirement and make him eligible for the Deputy Fire Chief [promotional] examination."*fn6 The Board further ordered that Szczygiel's results for the Deputy Chief exam "be scored as soon as possible and that if he passes, his name be immediately added to the eligible list." Perhaps sensing that the Board's disposition might be cited in other situations, the Board's decision in Szczygiel expressly indicated that:
It is noted that this remedy [of relaxing the one-year-in-grade requirement] is limited to the unique facts of this case and does not provide precedent in any other matter.
Although it was not disclosed at the time to the Board, the negotiated settlement terms went beyond simply recognizing additional service time for Szczygiel as a Captain and thereby would allow him to compete for the Deputy Chief position. In fact, the settlement further provided that Szczygiel would be guaranteed an appointment to Deputy Chief, so long as his exam grade, once it was scored by the Department of Personnel, proved to be higher than that of anyone else who sat for the exam.
A written settlement agreement memorializing the settlement terms was signed by the parties on March 22, 2007. It ...