On Appeal from the Civil Service Commission, Docket No. 2009-3973.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and C.L. Miniman.
Appellant Joseph Galvez seeks our review of Final Administrative Action of respondent Civil Service Commission (the Commission) affirming the decision of the former Division of Local Human Resource Management (LHRM) finding that respondent City of Jersey City (the City) had a sufficient basis to remove Galvez's name from the list of eligible candidates for the position of police officer on the basis of his unsatisfactory driving record. We affirm.
Galvez took an open Competitive Examination for Police Officer (S9999H), achieving a passing score. He was ranked on the subsequent eligible list, and his name was certified to the City on August 26, 2008. However, in disposing of the certification, the City requested the removal of Galvez's name on the basis of an unsatisfactory driving record. The City asserted that Galvez had been involved in motor vehicle accidents on September 5, 2005, April 26 and December 2, 2006, and July 3, 2008. Additionally, the City asserted that Galvez's driving record included motor vehicle violations for failure to obey a signal on June 21, 2006, and unsafe operation of a motor vehicle on April 24, 2007.
In the September 5, 2005, accident, Galvez struck another vehicle from behind when he failed to stop for the accident immediately ahead of him. On April 26, 2006, Galvez ran into the rear end of a vehicle stopped for a traffic light, forcing it into the rear end of the vehicle in front of it. Then, on December 2, 2006, Galvez was involved in an intersection accident when another driver crossed through the intersection from Galvez's left. Galvez claimed at the time to have the green light. On July 3, 2008, Galvez and a truck were involved in an accident, and Galvez then struck another vehicle from behind that had been stopped for a red light. The cause of the initial impact was disputed by the truck driver and Galvez. Galvez's insurance carrier concluded that he was not at fault for this accident. He was, however, clearly at fault for at least two of the other accidents.
In his initial appeal to the LHRM, Galvez asserted, among other things, that the City failed to make a determination of fault with respect to the accidents and did not consider whether the moving violations reflected "isolated incidents and dispositions of expedience as opposed to a pattern of unsafe driving." He argued that the Legislature did not mention motor vehicle accidents or moving violations as grounds to remove an applicant from an eligible list. However, the LHRM decided that the City had presented a sufficient basis to remove his name from the eligible list.
Galvez then appealed to the Commission. He asserted that the City's conclusion that he was unfit to serve as a police officer on the basis of his driving record was arbitrary, unreasonable, and capricious. He again argued that he bore little or no fault for the accidents and that the matters were insufficient to conclude he was unfit to be a police officer. He alleged that he disposed of the two moving violations "out of expedience" and that the accidents and the two violations did not exhibit a pattern of unsafe driving. He further asserted that the accidents and the traffic violations did not demonstrate a tendency to defy law enforcement, repeatedly violate traffic laws, or fail to take responsibility for his actions. He suggested that the City had a discriminatory motive for removing his name from the eligible list due to a health issue that was not disabling.
The Commission concluded that N.J.A.C. 4A:4-4.7(a)(1), in conjunction with N.J.A.C. 4A:4-6.1(a)(9), allowed the removal of an eligible name "for other sufficient reasons." Those reasons included a consideration of a candidate's background and a recognition of the nature of the position at issue. Additionally, the Commission stated that it "has the authority to remove candidates from lists for law enforcement titles based on their driving records since certain motor vehicle infractions reflect a disregard for the law and are incompatible with the duties of a law enforcement officer," citing three of our unpublished decisions. The Commission noted that Galvez bore the burden of proof to show by a preponderance of the evidence that the City's decision to remove his name was in error.
The Commission found no indication in the record that the City relied on information respecting Galvez's health when it requested removal of his name from the eligible list. Instead, the record demonstrated that the City conducted a background check and relied on Galvez's motor vehicle record. Thus, Galvez did not meet his burden of proof on his claim of discriminatory animus.
The Commission framed the issue before it as "whether [Galvez's] driving record indicates an unsuitability to hold such a law enforcement position." Setting aside the issue of fault, the Commission focused on the fact that Galvez had four motor vehicle accidents and two moving violations over a three-year period "in close proximity to the closing date of the examination." The Commission concluded:
In this regard, it is recognized that a municipal Police Officer is a law enforcement employee who must enforce and promote adherence to the law. Municipal Police Officers hold highly visible and sensitive positions within the community and the standard for an applicant includes good character and an image of utmost confidence and trust. It ...