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John Tempe v. Township of Edison

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 8, 2012

JOHN TEMPE, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF EDISON, MAYOR ANTONIA RICIGLIANO, BUSINESS ADMINISTRATOR DENNIS GONZALEZ, ASSISTANT BUSINESS ADMINISTRATOR/ ASSISTANT PUBLIC SAFETY DIRECTOR RICHARD LAIRD, AND DEPUTY FIRE CHIEF BRIAN LATHAM, DEFENDANTS-RESPONDENTS. ROBERT PIZZAIA, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF EDISON, MAYOR ANTONIA RICIGLIANO, BUSINESS ADMINISTRATOR DENNIS GONZALEZ, ASSISTANT BUSINESS ADMINISTRATOR/ ASSISTANT PUBLIC SAFETY DIRECTOR RICHARD LAIRD, AND DEPUTY FIRE CHIEF BRIAN LATHAM, DEFENDANTS-RESPONDENTS. MICHAEL CARLONI, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF EDISON, MAYOR ANTONIA RICIGLIANO, BUSINESS ADMINISTRATOR DENNIS GONZALEZ, ASSISTANT BUSINESS ADMINISTRATOR/ ASSISTANT PUBLIC SAFETY DIRECTOR RICHARD LAIRD, AND DEPUTY FIRE CHIEF BRIAN LATHAM, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-8570-10, L-8573-10 and L-8576-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 10, 2012 --

Before Judges Messano, Yannotti and Espinosa.

Plaintiffs John Tempe (Tempe), Robert Pizzaia (Pizzaia) and Michael Carloni (Carloni) appeal from orders entered by the trial court on February 23, 2011, dismissing their complaints.

We consolidate the appeals and, for the reasons that follow, affirm.

The appeals arise from the following facts. The Township of Edison (Township) is a non-civil service municipality. It has paid and volunteer firefighters. The Township's Ordinance No. 2-33.5, provides that appointments to the Fire Division "shall be made from the members of the volunteer fire company or force" who meet certain qualifications. The Ordinance further provides that the hiring process begins with notice that the Township is establishing a list and hiring entry level firefighters.

According to the Ordinance, applicants will be subject to a background check, a written test, oral examination, and a physical performance examination. At the completion of this process, the successful applicants are placed in four classes. Class I consists of the successful applicants who reside in the Township, Class II consists of those who reside in Middlesex County, and Class III consists of successful applicants who reside in other counties within New Jersey. All other successful applicants are placed in Class IV.

The Ordinance additionally provides that, at the time of appointment, applicants from Class I will be sent for medical, physical and psychological tests. If an applicant fails to satisfactorily pass these tests, the next ranking applicant from the list will be tested. The Ordinance states, "If there are no applicants remaining from Class I, the ranking applicant from Class II will be sent." The Ordinance additionally states that this procedure is then repeated through Class III and Class IV "until the last ranking applicant in Class IV has been sent." The Ordinance states that the list is effective for two years "from the date of completion of the testing procedure."

In 2006, the Township established a hiring list in accordance with the Ordinance. Pizzaia ranked fifth on the list of candidates, with a score of 75.86 percent. Carloni was ninth on the list, having scored 71.70 percent, and Tempe was eleventh on the list, with a score of 70.50 percent. According to plaintiffs, the hiring list, which was certified as of May 23, 2006, was extended but expired some time thereafter.

On September 22, 2010, the Township's Council adopted an ordinance "reviving" the hiring list. The ordinance provided that the list would expire on December 31, 2010, and required that the Township assess whether the candidates were still qualified for appointment to the position of permanent firefighter. After the Council adopted the ordinance, the Township created a review committee to evaluate the qualifications of the candidates on the list.

The review committee conducted new interviews of the applicants and reviewed their qualifications. The committee recommended the hiring of six applicants and conditionally recommended the hiring of two others. Carloni and five other applicants were found ineligible because they failed to maintain a twenty-five percent attendance rate at fire calls as volunteer fireman. Pizzaia and Tempe were not recommended because they had been convicted of driving while intoxicated after the earlier review process.

On November 18, 2010, plaintiffs filed separate verified complaints in the Law Division naming the Township, Mayor Antonia Ricigliano, Business Administrator Dennis Gonzalez, Assistant Business Administrator and Assistant Public Safety Director Richard Laird, and Deputy Fire Chief Brian Latham (Latham) as defendants. In their complaints, plaintiffs alleged that defendants acted arbitrarily and capriciously in failing to appoint firefighters in order of ranking, as required by Ordinance 2-33.5. They claimed that the Township acted outside of its authority by creating the review committee and re-interviewing the candidates. They asserted that this allowed the committee members to recommend or disqualify applicants without regard to the previously-established procedures.

In addition, plaintiffs alleged that defendants violated the local government ethics laws and common law conflict of interest rules by including Latham on the review committee, which allegedly evaluated two of Latham's cousins and ultimately recommended bypassing plaintiffs and hiring Latham's cousin even though he had a lower ranking on the hiring list.

Plaintiffs sought the following forms of relief: 1) an indefinite extension of the hiring list; 2) a declaration that the bypassing or disqualification of plaintiffs was null and void; 3) a declaration that all offers of employment violated the local government ethics law, common law conflicts of interest principles, and Ordinance 2-33.5; 4) appointment of plaintiffs as permanent firefighters retroactive to the first offer of employment extended by the Township; 5) counsel fees and costs; and 6) such other relief as the court may deem just and equitable.

Plaintiffs asked the trial court to enter an order to show cause with interim restraints. The court entered the order on December 3, 2010. The court temporarily restrained defendants from appointing or acting on any further appointments of permanent firefighters, and extended the hiring list indefinitely pending the outcome of the litigation.

On December 21, 2010, the trial court entered an order modifying the December 3, 2010 order. The order enjoined defendants from making any appointments to the position of permanent firefighters based on the recommendations of the review committee, but vacated the previously-imposed restraints upon the appointment of permanent firefighters and the indefinite extension of the current hiring list.

It is undisputed that the Township did not thereafter appoint anyone to the position of permanent firefighter and the hiring list expired by its own terms on December 31, 2010. Thereafter, the Township filed a motion to dismiss the complaints as moot. Plaintiffs opposed the motion. The trial court considered the motion on February 4, 2011. The court decided that the matters were moot and thereafter entered orders dismissing the complaints without prejudice.

Plaintiffs appeal and argue that the trial court erred by finding that the issues raised in their complaints are moot. They maintain that they were entitled to appointment as permanent firefighters under Ordinance No. 2-33.5, and the court had the authority to extend the hiring list beyond its December 31, 2010 expiration date and order their appointments. Plaintiffs also contend that, even if technically moot, the court should not have dismissed their complaints because there is a likelihood that the alleged wrongs will recur and the issues raised in the complaints are matters of public importance.

We have considered plaintiffs' arguments in light of the record and applicable legal principles. We conclude that plaintiffs' arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E). However, we add the following comments.

"[A] court will not decide a case if the issues are hypothetical, a judgment cannot grant effective relief, or there is no concrete adversity of interest between the parties." Advance Elec. Co. v. Montgomery Twp. Bd. of Educ., 351 N.J. Super. 160, 166 (App. Div.), certif. denied, 174 N.J. 364 (2002) (citing Anderson v. Sills, 143 N.J. Super. 432, 437 (Ch. Div. 1976)). A court may, however, decide a matter even though moot if it raises an issue of great public importance and the controversy is likely to recur. Joye v. Hunterdon Cent. Reg'l High School Bd. of Educ., 176 N.J. 568, 583 (2003).

Plaintiffs argue that the trial court erred by finding it could not grant effective relief in this case. Plaintiffs contend that the court had the equitable authority to extend the hiring list to address the Township's alleged wrongful refusal to hire them as permanent firefighters. We disagree.

The Township has the discretion to establish the hiring process for firefighters, consistent with the applicable statutory requirements. N.J.S.A. 40A:14-7. As we have explained, the Township adopted Ordinance No. 2-33.5, which requires the establishment of a list and ranking of qualified candidates for the positions of permanent firefighter. The ordinance provides that the hiring list will be in effect for two years after the completion of the examination process.

As the record shows, the Township certified the hiring list as of May 23, 2006. The Township elected to extend the list once. In 2010, the Township adopted an ordinance "reviving" the list and extending its effective date through December 31, 2010. It is undisputed that the Township did not make appointments from the list. The Township elected not to extend the hiring list beyond December 31, 2010, preferring instead to create a new list.

We are satisfied that, under these circumstances, the trial court did not have the equitable authority to supersede the Township's discretionary decision to allow the hiring list to expire and to create a new list. A court cannot reverse a decision of a local governing body unless shown to be arbitrary, capricious, or unreasonable. Cell v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002). Furthermore, a "trial court may not . . . substitute its judgment for that of the governmental body being challenged." Miller v. Passaic Valley Water Comm'n, 259 N.J. Super. 1, 15 (App. Div.), certif. denied, 130 N.J. 601 (1992). We are satisfied that the Township's decision to allow the hiring list to expire was not arbitrary, capricious, or unreasonable.

Plaintiffs nevertheless maintain that N.J.S.A. 11A:4-6 implicitly authorizes the trial court to extend the effective date of the hiring list. The statute provides that the Civil Service Commission (Commission) may "revive" a hiring list to implement a court order or Commission decision "in the event of a successful appeal instituted during the life of the list or to correct an administrative error." Ibid.

Plaintiffs suggest that the trial court would be acting in accordance with the intent of the statute if it extended the Township's hiring list on equitable grounds. However, the statute does not apply here and, as we have explained, there was no basis for the court to substitute its judgment for that of the municipality.

Plaintiffs additionally maintain that their complaints should not have been dismissed because the Township is likely to refuse to hire them again and the issues raised in the complaints are matters of public importance. Again, we disagree.

The Township has determined to establish a new hiring list for appointment of permanent firefighters. We cannot say whether plaintiffs will be disqualified from the process, or where they might stand in the ranking of candidates. Moreover, we are not convinced that the issues raised by plaintiffs are of such overriding public importance that they must be addressed at this time.

Affirmed.

20120208

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