July 20, 2012
VINCENT J. CUOZZO AND MICHAEL J. MAULT, PLAINTIFFS-APPELLANTS,
ROBERT J. CIMINO, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE OF THE MAPLEWOOD POLICE DEPARTMENT, AND TOWNSHIP OF MAPLEWOOD, A NEW JERSEY MUNICIPAL CORPORATION, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3399-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 13, 2012
Before Judges Payne, Simonelli and Accurso.
Plaintiffs Vincent J. Cuozzo and Michael J. Mault appeal from a summary judgment dismissing their complaint against defendants Township of Maplewood (Maplewood or the Township) and its police chief, Robert J. Cimino, arising out of the Township's failure to appoint them as captains in the municipal police department. We affirm.
Maplewood is a non-civil service jurisdiction having a police department organized in typical paramilitary rank structure. The department consists of a chief, two captains, five lieutenants, eleven sergeants and forty-four detectives and patrol officers. Cimino has served as the chief of police since 2000. Plaintiffs were lieutenants in the department until their retirements in 2011.
Viewing the facts from plaintiffs' perspective, and in a light most favorable to them, this appeal is the culmination of a long-simmering dispute over promotional practices in the Maplewood police department. When Cimino became chief in 2000, there was no formal promotions process in place. The following year, the Township Committee passed an ordinance establishing a formal, examination-based system for promotions in the force. The three main components of the new process consisted of eligibility requirements specifying minimum time in rank before an officer would be eligible for promotion; a point system encompassing written and oral examinations administered by an external authority, a written evaluation and review of disciplinary records and sick time usage; and adoption of the "rule of three," whereby the Township Committee would make the ultimate promotion decision after interviewing the three top-scoring candidates.
The members of the police department, through their union, objected to the new system's interview element and the Township Committee's role in the process. The union maintained that the new system allowed Cimino to subvert the process to favor his preferred candidates and allowed for top-scoring candidates to be passed over. The union complained to the Township Committee and brought an unfair practice charge before the Public Employment Relations Commission (PERC) challenging the new promotions process. Several members of the department refused to sit for the promotional examinations in protest. As a result, no one was promoted in the department from 2001 until 2005, when the unfair practice charge was finally resolved by agreement. As part of the settlement between the Township and the union, the parties agreed to the implementation of a new examination-based promotions process for the police force, substantially in the form previously approved with the addition of points allowed for seniority.
In early 2006, Chief Cimino learned that one of the two captains intended to retire in July 2006, necessitating the promotion of a lieutenant. Lieutenant Robert Dombrowski, who had only just been promoted to lieutenant on January 3, 2006, was Chief Cimino's preferred candidate. Cimino immediately sent a memo to all sergeants and lieutenants inviting them to apply for administrative training in the captains' office on a temporary basis. Although several officers applied, Dombrowski was selected and began working in the captains' office in April 2006. Cimino had used a similar temporary assignment in the past in order to provide his preferred candidate with practical experience that would assist him in the promotions process. Cimino also assisted Dombrowski in his quest to become a captain by not scheduling the promotional exam until six months after the retiring captain's position became vacant. Had the exam been scheduled when the captain's position first became vacant, Dombrowski would have been ineligible to take the exam because he had only been a lieutenant for six months at that time. By delaying the exam until January 2007, Dombrowski was able to meet the "year-in-rank" requirement and sit for the exam with the rest of the lieutenants in the department.
In January 2007, plaintiffs, along with Lieutenants Dombrowski and Conlon, took the written and oral promotion examinations administered by the New Jersey State Association of Chiefs of Police, an external independent testing organization. After the exams were scored and the candidates' records evaluated, the candidates were ranked from highest to lowest as follows: (1) Dombrowski, (2) Conlon, (3) Mault, and (4) Cuozzo. Although plaintiffs allege that "there is reason to suspect that Dombrowski's score may not have been arrived at fairly," they do not challenge administration of the test, or these rankings, on appeal.
In accordance with the ordinance governing the promotions process, the three top-scoring candidates, Dombrowski, Conlon, and Mault, interviewed with the Township Committee. Despite Chief Cimino's clear preference for Lieutenant Dombrowski, the Township Committee chose Lieutenant Conlon for the position on May 21, 2007.
The following day, Chief Cimino wrote a memo to the Township Committee advocating for the immediate creation of a third captain's position to which Dombrowski could be appointed. While acknowledging that Conlon was "a more than capable appointee," Cimino claimed that Conlon was "without even basic experience to assume the role of a new administrative captain" and that in light of the sudden illness of the remaining captain, John Cheasty, the department needed Dombrowski to "maintain continuity" and train Conlon in "the duties and responsibilities" of the captain's office. Although there was no evidence that Cheasty's sudden illness would result in a lengthy absence, and well aware that this was Cimino's attempt to get Dombrowski promoted notwithstanding the Committee's having chosen Conlon, the Township Committee created the third captain's position and appointed Dombrowski to the post on August 8, 2007. Cimino's plan to put Lieutenant Dombrowski into the captain's office in order to improve his chance at promotion had succeeded.
Captain Cheasty returned to work full time with no restrictions in early August 2007, the same time Dombrowski was made the third captain. Cheasty continued to work full time, serving as the department's second in command, until his retirement on October 1, 2008.
The union wrote to Chief Cimino upon Captain Cheasty's retirement expressing support for the continuation of the third captain's position and requesting that the current promotional ranking list, consisting of plaintiffs Mault and Cuozzo, be extended for six months as allowed by ordinance. Cimino wrote back advising that the third captain's position had been created because of Captain Cheasty's health problems and was designed to address only that temporary situation. He stated that the Township Committee had determined, at the time it created the position, to rescind it upon Captain Cheasty's separation and would carry through with that intent. Further, he advised that as the position was being abolished, there was no authority to extend the promotional list. On December 2, 2008, the Township Committee adopted an ordinance eliminating the third captain's position.
Plaintiffs filed a four-count complaint against the Township and Cimino on April 23, 2009, alleging: (1) that the Township ordinances creating and abolishing the third captain's position violated art. IV, § 7, ¶ 7 of the New Jersey Constitution by enacting general laws of a special character solely to favor the promotion of Dombrowski and to prevent the plaintiffs' promotion*fn1 ; (2) that defendants violated plaintiffs' equal protection rights under art. I, § 1 of the New Jersey Constitution by engaging in acts and omissions designed to provide special treatment for Dombrowski to the detriment of plaintiffs; (3) that defendants violated plaintiffs' due process rights as provided in art. I, § 1 of the New Jersey Constitution by arbitrarily, capriciously, and unreasonably adopting an ordinance solely for the purpose of promoting Dombrowski; and (4) that defendants, by depriving plaintiffs of their rights under the New Jersey Constitution, violated the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2. Defendants timely answered, denying the allegations and asserting various affirmative defenses.
On April 1, 2011, following the conclusion of discovery, defendants moved for summary judgment on all claims. The parties agreed that the facts were undisputed for purposes of the motion, and that the only questions before the court were legal ones not requiring a hearing. In an order of May 31, 2011, accompanied by a comprehensive written opinion, Judge James Rothschild granted the motion and dismissed plaintiffs' complaint in its entirety with prejudice.
After a comprehensive assessment of the facts, viewed most favorably to plaintiffs, Judge Rothschild first addressed the disparity in the scores among the four applicants for the two captains' positions. Ranked from highest to lowest, the candidates' final adjusted scores were as follows:
1) Dombrowski, 89.67
2) Conlon, 79.31
3) Mault, 73.14
5) Cuozzo, 67.25 Lieutenant Dombrowski scored ten points higher than his nearest competitor, Conlon, over fifteen points higher than plaintiff Mault and over twenty points higher than plaintiff Cuozzo.
Based on these scores, the judge found, as a preliminary matter, that neither plaintiff "is in a position wherein he can assert that, but for Chief Cimino's favoritism, he would have obtained the Captain's position."
Even more significant to the trial court than Dombrowski's much superior score, however, was the greater latitude accorded the government when acting as employer as opposed to sovereign. Relying on Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 594, 128 S. Ct. 2146, 1248, 170 L. Ed. 2d 975, 981 (2008), the court rejected plaintiffs' equal protection claims on the basis that the "class-of-one" theory underpinning them does not apply to public employment.
The question in Engquist was whether a public employee could state a claim under the Equal Protection Clause by alleging that she was fired from her job, not based on her membership in any particular class, but simply for arbitrary, vindictive, and malicious reasons, thus singling her out as a so-called "class-of-one." The Engquist Court held that the Equal Protection Clause is not implicated in circumstances where "government employers are alleged to have made an individualized, subjective personnel decision in a seemingly arbitrary or irrational manner." Id. at 605, 128 S. Ct. at 2155, 170 L. Ed. 2d at 988.
Writing for the Court, Chief Justice Roberts explained that the class-of-one theory of equal protection is simply a "poor fit in the public employment context" and that to treat employees differently is not to "classify them in a way that raises equal protection concerns" but rather is "simply to exercise the broad discretion that typically characterizes the employer-employee relationship." Ibid. "[R]atifying a class-of-one theory of equal protection in the context of public employment," the Chief Justice wrote, "would impermissibly 'constitutionalize the employee grievance.'" Id. at 609, 128 S. Ct. at 2157, 170 L. Ed. 2d at 990 (quoting Connick v. Myers, 461 U.S. 138, 154, 103 S. Ct. 1684, 1694, 75 L. Ed. 2d 708, 724-25 (1983)).
Judge Rothschild rejected plaintiffs' contention that our Supreme Court would view this issue differently under article I, paragraph 1 of our Constitution. The court noted that neither it nor the parties had been able "to find a single case, Federal or State, holding that a plaintiff unfairly denied a promotion by a governmental entity states a Constitutional claim." No case in New Jersey recognizes the class-of-one theory of equal protection in the context of public employment, and our Supreme Court's analysis of our own Constitution in Greenberg v. Kimmelman, 99 N.J. 552 (1985), offers plaintiffs no hope that it would do so here. "The New Jersey Supreme Court holding in Greenberg, like the United States Supreme Court holding in Engquist," the judge wrote, "epitomizes the problem confronting plaintiffs: the greater leeway the government has when acting as an employer than when it is providing services."
Relying on Greenberg, Judge Rothschild likewise rejected plaintiffs' substantive and procedural due process claims. Acknowledging that the right to employment opportunity, whether characterized as a liberty interest or property right, is protected under our Constitution, the court noted that the right to a particular job has never been regarded as fundamental. Greenberg, supra, 99 N.J. at 573. Plaintiffs attempted to sidestep that precedent, which is fatal to their claims, by arguing that the interest they attempt to vindicate was not a promotion, but instead a fair promotional process. The trial court rejected that argument on the basis of our decision in Ferraro
v. City of Long Branch, 314 N.J. Super. 268, 284 (App. Div.), certif. denied, 157 N.J. 541 (1998), in which we held that government employment decisions that do not result in discharge, demotion, or loss of pay are outside the scope of due process protection.
While acknowledging that "Chief Cimino could have, and perhaps should have, done several things to be fairer to plaintiffs," the court, nevertheless, concluded that "[t]he absence of any cases finding in favor of unfairly non-promoted governmental employees, particularly in the presence of several cases finding against such employees, can only mean that no Constitutional cause of action exists." "Even conceding that plaintiffs could prove unfairness, it must also be concluded that plaintiffs nevertheless still do not possess a cognizable claim under our legal system." Finding no constitutional violation, the court granted summary judgment to defendants, dismissing plaintiffs' complaint in its entirety.
Plaintiffs renew their same arguments on appeal, contending that the trial court misconstrued their claim to be a right to promotion as opposed to a fundamental right to a fair promotional process under article VII, section 1, paragraph 2 of the New Jersey Constitution.
We review the grant of summary judgment using the same standard as the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). After reviewing the record and the applicable law, we affirm the grant of summary judgment to defendants substantially for the reasons expressed by Judge Rothschild in his written opinion of May 31, 2011. We add only the following comments.
Plaintiffs are incorrect in asserting that the trial judge failed to apprehend the thrust of their argument to be a fundamental right to a fair promotions process. The judge understood the argument. The court held that government employees do not possess a federal or state constitutional right to a fair promotions process. We agree.
Plaintiffs claim that they enjoy the protections of the Merit and Fitness Clause of Article VII of our Constitution. The provision reads in its entirety:
Appointments and promotions in the civil service of the State, and of such political subdivisions as may be provided by law, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive; except that preference in appointments by reason of active service in any branch of the military or naval forces of the United States in time of war may be provided by law. [N.J. Const. art. VII, § 1, ¶ 2.]
Maplewood, however, is not a civil service jurisdiction and hence plaintiffs are not in the civil service.
Plaintiffs concede that Maplewood did not adopt the provisions of Title 11A in a public question submitted to the voters in accordance with N.J.S.A. 11A:9-2, but insist that "it would be an unreasonably crabbed interpretation of art. VII, § 1, ¶ 2 to hold that it has no application to the merit procedure adopted by Maplewood Township." Our courts, however, have consistently declined to apply the protections afforded by the Merit and Fitness Clause to non-civil service public employees. See, e.g., State Troopers Fraternal Ass'n Inc. v. State of N.J., 115 N.J. Super. 503, 509 (Ch. Div. 1971), aff'd, 119 N.J. Super. 375 (App. Div. 1972), aff'd, 62 N.J. 302 (1973) (declining to interpret the Merit and Fitness Clause to apply to unclassified members of the State Police); Borough of Glassboro v. Fraternal Order of Police, Lodge No. 108, 197 N.J. 1, 3 (2008) (non-civil service municipality not subject to the statutory requirements of a "comprehensive promotional procedure"); Bayonne v. Dougherty, 59 N.J. Super. 288, 295-96 (App. Div. 1960), appeal dismissed, 34 N.J. 240 (1961) (declining to read the Merit and Fitness Clause "to mean any more than it says, nor carry the legislative intention beyond what is expressly or by clear implication called for by the statutes"). There remains good reason for not doing so.
Accepting plaintiffs' interpretation of Article VII would effectively eviscerate any distinction between civil service and non-civil service jurisdictions. Yet in enacting Title 11A, the Legislature clearly intended that the State's municipalities would have the choice to accept or decline participation in the civil service system. N.J.S.A. 11A:9-1 to -10. We are not at liberty to undermine the Legislature's clear intent to allow a municipality this choice. Cf. Park Ridge v. Salimone, 21 N.J. 28, 44-45 (1956) ("liberal policy of construction [of the civil service laws] is still no license to disregard the clear meaning of the law as to the basic purpose sought to be accomplished by the statutes, and any doubt on this score must be resolved in favor of the express provisions of the statutes").
As Chief Justice Roberts explained in Engquist, recognizing the sort of claim Engquist pressed "could jeopardize the delicate balance governments have struck between the rights of public employees and 'the government's legitimate purpose in promoting efficiency and integrity in the discharge of official duties, and in maintaining proper discipline in the public service.'" Engguist, supra, 553 U.S. at 607, 128 S. Ct. at 2156, 170 L. Ed. 2d at 989 (explaining that, although most federal employees are covered by the Civil Service Reform Act of 1978, Congress has specifically excluded certain groups, such as those employed by the Federal Bureau of Investigation, from its ambit, and that mandating equal protection review for every allegedly arbitrary employment action would undermine that distinction).
Similarly, by accepting plaintiffs' interpretation of the Merit and Fitness clause as applying to non-civil service jurisdictions, we will have undone the Legislature's careful work in allowing a municipality the choice of whether to subject itself to the statutory requirements of the Civil Service Act. We decline to do so.