October 23, 2008
PAUL WEBER, PLAINTIFF-APPELLANT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, interviewed four candidates and forwarded two names to the mayor; plaintiff's name was not included.
Weber makes two basic contentions on appeal: that the borough was required to administer examinations to those applying for promotion and not rely exclusively on interviews and that the town, in passing him over for promotion, did not comply with N.J.S.A. 40A:14-129. We reject both assertions.
Plaintiff's claim that the borough was required to give an examination when it was considering promotions within the police department rests upon the borough's ordinance concerning promotions within the police department, §40-5 of the Glen Rock Code, which states:
No member of the Police Department shall be promoted to or hold any superior rank within the Police Department until he or she has served at least three years as a patrolman in the Police Department. The Chief of Police may grant a member credit of up to one year toward the required three years of service on the basis of prior police experience. An advisory promotional examination may be given, notwithstanding only one member has applied for promotion. Such promotional examination shall be given when more than one member has applied for promotion. No promotion shall become final until a three-month probationary period has been served and the Chief of Police has recommended that the promotion become permanent. Any superior officer shall serve a minimum of one year in grade to be eligible for promotion.
Plaintiff concedes, as he must, that a "promotional examination" need not be a written test. Rox v. Dep't of Civil Service, 141 N.J. Super. 463, 467 (App. Div. 1976). He contends, however, that the manner in which these interviews were conducted did not provide for a uniform assessment of the candidates' qualifications. He stresses that not all candidates were asked the same questions and that there was no agreed-upon scoring process.
At the conclusion of the interviews, the Committee members discussed the applicants among themselves. Originally, the Committee members did not agree as to how the four candidates should be ranked; after discussion, however, they all agreed on the names of two candidates, Sergeants Stahman and Miller, to submit to the mayor. After considering those names, the mayor submitted Stahman's name to the council, who approved his promotion.
We are satisfied that the process that Glen Rock employed does not suffer from the deficiencies that we criticized in Rox, supra. In that case, the candidates were not all interviewed by the same people. Id. at 466. Rather, seven different panels conducted the interviews and not all interviewers saw all the candidates; rather, each panel saw only those candidates appearing before it. Ibid. Further, it was apparent that the different panels in that case used different criteria in their scoring methods, and one panel clearly used a more rigorous scale than did the others. Id. at 467-68.
Here, all members of the Committee participated in the interviews of all the candidates. We do not consider it a fatal flaw that the questions were not designed to have a "correct" answer, thus permitting a subjective evaluation of a candidate's answer. Here, the questions were intended to explore the candidates' supervisory skills, their experiences in the rank of sergeant and how they viewed the role of lieutenant in the Glen Rock police force. That approach was completely permissible. Kelly v. Civil Service Comm'n, 37 N.J. 450, 460 (1962) (noting that "subjective elements would appear to be inherent in all oral examinations seeking supervisory and personality traits, and their presence may not reasonably be viewed as fatal.")
We also reject plaintiff's contention that Glen Rock did not comply with N.J.S.A. 40A:14-129. This statute provides that in a non-civil service municipality such as Glen Rock, a promotion of any member or officer of the police department or force to a superior position shall be made from the membership of the department or force. Due consideration shall be given to the member or officer so proposed for the promotion, to the length and merit of his service and preference shall be given according to seniority in service. [N.J.S.A. 40A:14-129.]
It is undisputed that plaintiff had more seniority than either Merselis or Stahman when they were promoted to lieutenant.
This, he contends, is a violation of the statute.
Seniority, however, is not determinative of promotion. Gaskill v. Mayor & Comm'rs of Bor. of Avalon, 149 N.J. Super. 364, 365 (App. Div. 1977) (noting that under this statute, seniority "is but an additional factor to be considered on the merits of the evaluation of the individuals for promotion and not a mechanical rule which guarantees promotion to the senior employee"). Deposition testimony confirms that plaintiff's seniority was considered. That was all he was entitled to; he was not entitled to have it treated as controlling.
Plaintiff complains that the selection process was tainted by favoritism and violated his right to due process and the fairness and rightness doctrine. There is no substantive merit to his due process claim. Plaintiff did not have a right to be promoted to the rank of lieutenant; he had a right to participate in a fair promotional process and to a hearing if he were dissatisfied with the results. He has received all the process to which he was entitled.
Nor do we find any merit in his contention that the selections of Merselis and Stahman in some manner violated fundamental fairness. The doctrine of fundamental fairness is intended to protect citizens from "unjust and arbitrary governmental action...." Doe v. Poritz, 142 N.J. 1, 108 (1995). The doctrine exists to provide protections beyond those afforded by the constitution against government conduct that does not comport with "'commonly accepted standards of decency of conduct to which government must adhere....'" State v. P.Z., 152 N.J. 86, 117 (1997) (quoting State v. Talbot, 71 N.J. 160, 168 (1976)). It is to be applied sparingly, and only in those rare cases where "'not to do so will subject the defendant to oppression, harassment, or egregious deprivation.'" Id. at 131 (Pollock, J., dissenting) (quoting State v. Yoskowitz, 116 N.J. 679, 712 (1989) (Garibaldi, J., concurring in past and dissenting in part)). Nothing within this record would warrant us invoking the doctrine here.
In support of his contention that the promotional process was tainted by favoritism, he contends that Stahman, the most recent successful candidate, was a high school friend of the mayor's son. Our review of this record satisfies us that plaintiff's argument in this regard rests upon no more than speculation and provides no basis to overturn this promotion.
Finally, the trial court was entirely correct in its ruling that plaintiff did not have a cause of action for damages. Plaintiff's argument to the contrary requires no discussion. R. 2:11-3(e)(1)(E).
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