NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...