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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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