On appeal from a Final Decision of the New Jersey Civil Service Commission, CSC Docket No. 2009-282.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Yannotti.
Joseph Sullivan (Sullivan) appeals from a final determination of the New Jersey Civil Service Commission (Commission) dated March 30, 2009, which rejected his challenge to the decisions by the Borough of Ringwood (Borough) to select other officers for the position of Sergeant in the Borough's police force. We affirm.
The following facts are pertinent to our decision. Sullivan is a police officer in the Borough. In July 2008, he was fifty-one years of age. He had been an officer on the Borough's police force for twenty and a half years. Sullivan's name appeared as the first name on the eligible list for Police Sergeant (PM2536F) that was certified to the Borough on August 22, 2006. On October 1, 2006, the Borough bypassed Sullivan and appointed Steven Hafner (Hafner), who was second on the list, to the position.
The Borough submitted a statement from the Police Chief, Bernard F. Lombardo (Lombardo), explaining why Hafner was appointed to the position:
Hafner has demonstrated a strong work ethic. He is conscientious, intelligent and compassionate, all positive indicators of a good supervisor. [Hafner] has always been willing to help the new officers and has shown a good ability to teach and mentor. His job knowledge is excellent and his decision making skills are very strong. His performance with the Passaic County Narcotic Task Force as well as his deployment to New Orleans after [Hurricane] Katrina shows that he is adaptable to different environments as well as willing to put public safety before his own. He is dedicated to this department and the municipality and I believe that he would make a great Sergeant.
Sullivan's name also appeared as the first name on the eligible list for the position of Police Sergeant (PM2536F) that was certified to the Borough on December 10, 2007. The Borough bypassed Sullivan and appointed Michael Caughey (Caughey), who was second on the list, effective February 25, 2008. In support of its decision to appoint Caughey to the position, the Borough submitted a statement from Lombardo, who stated that:
Caughey is conscientious, intelligent and a good communicator; [which are] all positive indicators of a good supervisor. [Caughey] is always willing to help new officers and has shown a good ability to teach and mentor. His decision making skills are very strong. [Caughey] is dedicated to this department and the municipality and I believe that he will make a great Sergeant[.]
By letter dated March 13, 2008, Sullivan filed an appeal with the State's Department of Personnel (DOP), challenging the Borough's decisions. He asserted, among other things, that the Borough had abdicated its "statutory and constitutional responsibilities" in making the appointments. The DOP found, however, that the Borough had complied with the so-called "Rule of Three" in making the disputed appointments.
Sullivan appealed that determination to the Commission, which rendered a final determination in the matter. The Commission found that Sullivan's appeal challenging Hafner's appointment was untimely since the certified list from which that appointment was made was disposed of in October 2006 and Sullivan did not challenge the appointment until March 2008. The Commission noted that N.J.A.C. 4A:2-1.1(b) requires that appeals be filed within twenty days of the challenged action.
The Commission also found that Sullivan's appeal challenging Caughey's appointment was without merit. The Commission noted that, under the applicable regulations, the Borough had the discretion to select any one of the top three eligible persons on a promotional list. The Commission determined that the Borough had provided a reasonable explanation for bypassing Sullivan ...