On appeal from the State of New Jersey Civil Service Commission, Docket No. 2011-1628. John J. Segreto argued the cause for appellant Thakur Persaud (Segreto, Segreto & Segreto, attorneys; Mr. Segreto, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and Accurso.
Dr. Thakur Persaud appeals from the June 1, 2011 decision of the Civil Service Commission (Commission), which denied his appeal of his non-appointment from the eligible list for the position of Health Officer (M0991L) in the City of Paterson (Paterson). Persaud argues that he was permanently appointed Health Officer prior to the change in administration in Paterson and therefore could not be denied the job by the new administration. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Paterson is classified as a distressed city pursuant to the Special Municipal Aid Act, N.J.S.A. 52:27D-118.24 to -118.31. Therefore, in order to receive Special Municipal Aid,*fn1 Paterson entered into a Memorandum of Understanding (MOU) with the Division of Local Government Services (DLGS) in January 2010. Under the MOU, DLGS required Paterson to impose a hiring freeze or obtain a DCA waiver to overcome the prohibition.
Specifically, the MOU provides in pertinent part:
1. The City shall impose a hiring freeze on new employees. Any request for new positions (request of waiver) shall be made to the Director [of DLGS] with justification for the need of the new positions and the funding source for the positions. Advertising or posting for new employees is not permitted without prior approval by the Director of a waiver. This freeze shall include not [sic] replacements for persons who have left the employment of the municipality, whose positions are deemed as an essential service by the City and who are being replaced with no addition[al] appropriation to the budget, whose position is not filled at the time of the award.
BE IT FURTHER AGREED that the City, for any requested creation of a new position, shall prepare and submit a waiver to the Director for the hiring of any new personnel and/or the transfer of any employee . . . .
On January 20, 2009, Paterson provisionally appointed Trevor Weigle as its Health Officer at a salary of $98,000 pursuant to an approved waiver. The provisional appointment triggered the civil service examination process. N.J.S.A. 11A:4-5.
Persaud took the exam and ranked first, followed by Jadwiga Warwas and then Weigle. At the time, Persaud was actively serving as Paterson's Program Manager for Disease Prevention and Control, a position he held since 2005. Persaud is a Paterson resident, has a medical degree from Cuba, a Masters Degree in Public Health from Columbia University, a Ph.D. in Public Health in Epidemiology from Walden University, and is a licensed Health Officer by the State of New Jersey.
Paterson initially discontinued Weigle's provisional service effective July 1, 2010. On June 15, 2010, Mayor Jose Torres' personnel director sent a letter to the Commission, with a copy to Persaud, "reflecting the permanent appointment of Thakur Persaud as Health Officer for the City of Paterson effective July 1, 2010[,]" attaching a certification indicating Persaud's salary as Health Officer of $80,000, as well as an unapproved Department of Community Affairs (DCA) waiver.*fn2 The Commission updated its County and Municipal Personnel System (CAMPS) to reflect Persaud's appointment as Health Officer.*fn3
Persaud then received two letters from Mayor-elect Jeffery Jones, both dated June 30, 2010. One letter indicated:
[a]s soon as possible after being sworn in as Mayor of the City of Paterson on July 1, 2010, it is my intention to make official appointments of Acting Directors in City Departments according to the Code of Paterson, Section 5-8. My appointee will ...