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John Tempe v. Township of Edison

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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


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