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In the Matter of James Peck


January 27, 2011


Per curiam.



Submitted January 5, 2011 - Decided Before Judges Cuff and Simonelli.

On appeal from a Final Administrative Decision of the New Jersey Civil Service Commission, Docket No. 2009-4286.

Appellant James Peck, Jr., is currently a sergeant with the City of Hoboken Police Department (HPD). He and the City of Hoboken (City) entered into a settlement agreement whereby the City agreed to retroactively appoint him to sergeant and then, if he satisfied certain conditions, to lieutenant. Peck appeals from that part of the final agency decision of respondent Civil Service Commission (Commission), which denied approval of his retroactive appointment to lieutenant. We conclude the decision was not arbitrary, capricious or unreasonable, and affirm.

Peck has been employed in the HPD since 1998. In March 2001, the Department of Personnel (DOP) promulgated a sergeant eligible list (the March 2001 eligible list). The list, which did not include Peck, eventually expired on April 3, 2005. Prior thereto, on January 27, 2005, the DOP promulgated a second sergeant eligible list (the January 2005 eligible list) on which Peck was ranked third.

On April 1, 2005, the City appointed three of the top scoring police officers from the March 2001 eligible list to sergeant. The appointments brought the total number of sergeants to twenty-seven, which exceeded the twenty-five sergeants permitted by the HPD's table of organization. Peck filed a complaint in the Law Division challenging two of the appointments. He also alleged that as of April 5, 2005, there were three sergeant vacancies resulting from three sergeants having been appointed to lieutenant. Thus, he should have been appointed to sergeant because the January 2005 eligible list, where he was ranked third, was the only active list at the time.

On January 20, 2006, the trial judge found there was only one sergeant vacancy as of April 1, 2005, and vacated two of the three appointments from the March 2001 eligible list. The judge left it to the City and the Commission to decide whether to appoint Peck to sergeant.

The City eventually appointed Peck to sergeant effective May 25, 2006. On June 1, 2006, the DOP announced a lieutenant promotional examination (the 2006 lieutenant exam) with a closing date of August 31, 2006. Peck did not take the exam because he lacked one year of continuous permanent service as a sergeant by the closing date, as required by N.J.A.C. 4A:4-2.6(a)1. The City later conceded that if the two sergeant appointments from the March 2001 eligible list had not been made, Peck would have been appointed to sergeant on April 5, 2005, and would have been eligible for the 2006 lieutenant exam.

The 2006 lieutenant exam was administered on September 28, 2006. The DOP promulgated a lieutenant eligible list on January 4, 2007 (the January 2007 lieutenant eligible list). Five of the top scoring sergeants, who scored 87.17, 86.62, 86.21, 86.11 and 85.97 respectively, were appointed to lieutenant from that list.

On July 13, 2007, Peck filed another complaint in the Law Division. In May 2009, the parties entered into a settlement agreement, which required the City to request the Commission's approval of Peck's appointment to sergeant retroactive to April 1, 2005, for seniority purposes only. The agreement also required Peck to take the lieutenant promotional exam in September 2009 (the 2009 lieutenant exam), and required the City to request the Commission's approval of Peck's retroactive appointment to lieutenant if he achieved a score which was equal to or higher than any of the five sergeants who were appointed to lieutenant as a result of the 2006 lieutenant exam. The parties specifically acknowledged in the settlement agreement that the Commission, "in its sole discretion and in accordance with its rules and regulations, will determine whether it approves the retroactive promotion [to lieutenant]."

Peck took the 2009 lieutenant exam. His score was not available when the Commission issued its written decision on October 8, 2009. The Commission approved Peck's retroactive appointment to sergeant. It denied approval of a retroactive appointment to lieutenant, finding the terms of this portion of the settlement too speculative because Peck had not yet passed the 2009 lieutenant exam. The Commission concluded that even if Peck passed the exam, he could not use his retroactive date of appointment as sergeant for the 2006 lieutenant exam; rather, he must have actually served in and performed the duties of sergeant for a year in order to establish eligibility for that exam. The Commission found no other factors demonstrating good cause for Peck's retroactive appointment to lieutenant. Peck filed this appeal on December 8, 2009.

On January 27, 2010, Peck received his score of 87.120 for the 2009 lieutenant exam. He posits that if he had taken the 2006 lieutenant exam and achieved this score, he would have been ranked second on the January 2007 lieutenant eligible list.

On appeal, Peck contends that the Commission acted arbitrarily, capriciously and unreasonably in denying his retroactive appointment to lieutenant because the City's improper bypass of his appointment to sergeant in April 2005 and his post-2006 lieutenant exam service as sergeant for more than three years constitute good cause for a waiver of the one-year time-in-service requirement for that exam.*fn1 Peck also contends the Commission improperly ignored In re Martinez, DOP No. 2007-3094, final decision, (July 27, 2007), aff'd in part, vacated in part, 403 N.J. Super. 58 (App. Div. 2008), where the Merit System Board (MSB)*fn2 found good cause to waive the one-year time-in-service requirement for a fire captain who lacked the requisite one-year time-in-service for a deputy fire chief promotional test. We disagree with Peck's contentions.

Our role in reviewing the decision of an administrative agency is limited. Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009); In re Taylor, 158 N.J. 644, 656 (1999). Decisions of administrative agencies carry with them a presumption of reasonableness. Gloucester Cnty Welfare Bd. v. State of N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). We may not reverse an agency's determination "even if [we] may have reached a different result had [we] been the initial decision maker . . . ." Circus Liquors, supra, 199 N.J. at 10. Stated otherwise, we "may not simply 'substitute [our] own judgment for the agency's.'" Ibid. (quoting In re Carter, 191 N.J. 474, 483 (2007)). We "can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy." In re Musick, 143 N.J. 206, 216 (1996). Thus, we will not disturb an agency decision absent a "'clear showing' that it [was] arbitrary, capricious, or unreasonable," Circus Liquors, supra, 199 N.J. at 9; that is,

"(1) . . . the agency's action violates expressed or implied legislative policies . . . [or failed to] follow the law; (2) . . . the record [does not] contain[] substantial evidence to support the findings on which the agency based its action; and 3) . . . in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." [Id. at 10 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

Nonetheless, "although the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corrs., 348 N.J. Super. 117, 123 (App. Div. 2002). Accordingly, our function is not to merely rubberstamp an agency's decision; rather, our function is "to engage in a 'careful and principled consideration of the agency record and findings.'" Williams v. Dep't of Corrs., 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting Mayflower Secs. Co. v. Bureau of Secs., 64 N.J. 85, 93 (1973)). However, it is only when the agency's findings are clearly mistaken and "'so plainly unwarranted that the interests of justice demand intervention and correction'" that we should "'make [our] own findings and conclusions.'" Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)). Applying these standards, we discern no reason to disturb the Commission's decision.

"Applicants for promotional examination shall . . . [h]ave one year of continuous permanent service for an aggregate of one year immediately preceding the closing date in a title or titles to which the examination is open." N.J.A.C. 4A:4-2.6(a)1. The Commission, in its discretion, "may relax [the civil service] rules for good cause in a particular situation, on notice to affected parties, in order to effectuate the purposes of Title 11A, [the] New Jersey [civil service] Statutes." N.J.A.C. 4A:1-1.2(c). However, the Commission is not required to approve a retroactive appointment even where there is an administrative error or other good cause, N.J.A.C. 4A:4-1.10(c), and Martinez, supra, 403 N.J. Super. at 74, merely affirmed the MSB's discretionary approval of a retroactive appointment where the parties had a settlement agreement that resolved an improper bypass claim. Accordingly, the Commission properly exercised its discretion in denying approval of Peck's retroactive appointment to lieutenant.

Peck also contends that the Commission's decision is contrary to the public policy encouraging settlements. This contention lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we make the following brief comments.

The Commission is legislatively charged with overseeing and regulating the civil service work force. See N.J.S.A. 11A:2-1 to -27. It is vested with the authority to interpret and implement the provisions of Title 11A, including the provisions relating to the examination and appointment of civil service employees. N.J.S.A. 11A:4-1 to -16; N.J.A.C. 4A:1-3.3(a)3-4. The Commission is not bound by any settlement agreement relating to an examination or appointment, especially a settlement provision that fails to meet the requirements of N.J.A.C. 4A:4-2.6, including the one-year time-in-service requirement. Affirmed.

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