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Weber v. Borough of Glen Rock

October 23, 2008

PAUL WEBER, PLAINTIFF-APPELLANT,
v.
BOROUGH OF GLEN ROCK, MAYOR JOHN VAN KEUREN, CHIEF OF POLICE STEVEN D. CHERRY, GARRET MERSELIS, FREDERICK P. STAHMAN, GEORGE EHRLICH, DEAN ACKERMAN, AND CHRISTOPHER MCINERNEY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. L-374-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 23, 2008

Before Judges Wefing and Yannotti.

Plaintiff Paul Weber appeals from two trial court orders: the order of May 3, 2006, dismissing certain of his claims and the order of September 5, 2007, granting summary judgment to defendants on the balance of his claims. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Weber is a member of the Glen Rock Police Department. He joined the department in 1978 as a patrolman and in 1985 was promoted to the rank of sergeant. Since 1985, there have been four occasions when there was an opening within the department for a member to be promoted to the rank of lieutenant. Weber applied for this promotion on each occasion and, on each occasion, was unsuccessful.

In 2004 the successful applicant was defendant Garret Merselis, who was promoted from sergeant to lieutenant. In September 2005 a vacancy developed for the position of captain; Merselis, the only lieutenant on the Glen Rock police force at that time, was promoted to the rank of captain.

The promotion of Merselis to captain created a vacancy for the position of lieutenant. Plaintiff applied, as did three other members of the department, for the position. This time defendant Frederick P. Stahman was selected for promotion to the rank of lieutenant.

Plaintiff, who had more seniority than did either Merselis or Stahman at the time of their respective promotions, filed suit in January 2006. He originally named as defendants the Borough of Glen Rock, its mayor, John Van Keuren, its police chief, Steven D. Cherry, Garret Merselis, and Frederick P. Stahman. He later amended the complaint to add as defendants George Ehrlich, Dean Ackerman, and Christopher McInerney, who he alleged were improperly promoted to sergeant in January 2006. Plaintiff contended that the promotional process that was employed in 2004 and 2005 was flawed, and he sought to restrain Stahman's appointment as lieutenant and to re-open the process.

To understand Weber's contentions, it is necessary to put forth certain historical background as to how the promotional process in the Glen Rock Police Department evolved over the years. In 1985, when Weber applied for promotion to sergeant, the borough (which is not a civil service municipality) employed a two-step promotional process. The applicants took a written examination consisting of approximately forty questions. Of the ten individuals who took this written exam, the four individuals who received the highest scores were then interviewed by the Public Safety Committee ("Committee"). One of the responsibilities of the Committee is to interview members of the police force seeking to be promoted and to make recommendations to the mayor as to which individual should be promoted. After the four highest-scoring candidates were interviewed, the Committee recommended to the mayor that Weber (who had received the highest score of all the candidates) be promoted to sergeant. The mayor, however, does not possess final authority over promotions in the Glen Rock Police Department. His choice must be approved by a vote of the municipal council. The council approved the mayor's selection for promotion.

This method, a written test followed by interviews, had been the method the borough utilized for many years to select candidates in the police department for promotion. In 1992 defendant Cherry became Chief of the department; from that point forward, only interviews were used to select a candidate for promotion to lieutenant.

In 1989, for instance, there was an opening for lieutenant, and there were four eligible candidates, all of whom waived in writing a written examination. In 1999 there was again an opening for the position of lieutenant. The six eligible sergeants were simply notified that the Committee was developing an interview schedule; no written examination was given, and no waiver of such an exam was requested.

In 2004 there was yet another opening for lieutenant. Again, the process consisted only of interviews. This time, however, the initial round of interviews was conducted by a panel of police chiefs from nearby municipalities. This panel then selected two individuals to proceed to the final round, an interview with the Committee.

In 2005, faced with another opening for lieutenant to be filled, the borough abandoned the two-step interview process used in 2004 and returned to the procedure used in 1999, interviews of the eligible candidates conducted by the Committee. The Committee, comprised of three members of the borough council, Michael O'Hagan, Carol Knapp and Theresa Moore, ...


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