IN THE MATTER OF ROBERT BROWN, POLICE SERGEANT (PM0622N), CITY OF SALEM.
Submitted January 23, 2019
appeal from the New Jersey Civil Service Commission, Docket
P. Sandy, attorney for appellant Robert Brown.
& McCann LLC, attorneys for respondent City of Salem
(Andrea Rhea, on the letter brief).
S. Grewal, Attorney General, attorney for respondent Civil
Service Commission (Pamela N. Ullman, Deputy Attorney
General, on the statement in lieu of brief).
Judges Fisher, Suter and Firko.
civil service vacancy arises, the law calls for the creation
of an eligible list and imposes on appointing authorities
what is known as the rule of three, N.J.S.A. 11A:4-8, which
obligates a selection of one of the list's top three
candidates. See, e.g., In re Martinez, 403
N.J.Super. 58, 72 (App. Div. 2008). This rule provides the
appointing authority "minimal discretion" in
hiring, In re Crowley, 193 N.J.Super. 197, 210 (App.
Div. 1984), while injecting "'merit'
considerations" into the process, Terry v. Mercer
Cty. Bd. of Chosen Freeholders, 86 N.J. 141, 149-50
(1981); accord N.J. Const. art. VII, § 1,
¶ 2 (declaring that "[a]ppointments and promotions
in the civil service . . . 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"). So, to serve the competing interests of
discretion and merit, an appointing authority must apply the
rule of three but, in the process, may bypass a higher-ranked
candidate for any "legitimate reason." In re
Foglio, 207 N.J. 38, 47 (2011); Crowley, 193
N.J.Super. at 214. A "legitimate reason," however,
would not include utilizing the rule of three to discriminate
in an unlawful or retaliatory manner. Terry, 86 N.J.
at 152 (holding that a "construction of the civil
service statute which would completely submerge and displace
the corrective purposes of the Law Against Discrimination in
favor of the merit principles of the civil service laws is
unwarranted"); see also In re Hruska, 375
N.J.Super. 202, 210 (App. Div. 2005) (recognizing that
"the Law Against Discrimination, N.J.S.A. 10:5-17,
further limits the appointing authority's discretion
during hiring determinations despite the rule of
Brown has been employed by the City of Salem as a police
officer for sixteen years. He is African-American and claims
disparate treatment in Salem's promotion of officers to
vacant sergeant positions.
record reveals Salem was in the habit of designating officers
to act as sergeants rather than actually making such
promotions; that circumstance prompted Officer Brown to file
a civil service appeal as well as a complaint with the Equal
Employment Opportunity Commission in 2013. These claims were
resolved when Salem agreed to thereafter permanently appoint
officers to vacant sergeant positions. In conjunction with
this settlement, Salem's city solicitor informed the
parties in June 2014 that because the Civil Service
Commission's creation of a new appointment list would
take time, the most senior officer - a Caucasian officer -
would be designated "provisional sergeant" with the
understanding he would not receive "any superior rights
to the permanent appointment" as a result. The city
solicitor also advised that with the designation of this
officer, Salem would "continue the
Department's 'seniority' tradition"
(emphasis added). Five months later, the Commission certified
a list for appointment to the position of sergeant. Officer
Brown appeared fourth on the list; the Caucasian officer, who
had been designated "provisional sergeant,"
appeared in first place and received the only appointment to
sergeant that Salem made at that time.
list was certified in August 2016, and the City promoted
three officers from that list; Officer Brown was ranked
second but was bypassed. The officers in first, third, and
fourth position were promoted instead; the first and third
officers are Caucasian, the fourth is
African-American. This prompted Officer Brown's appeal
to the Commission.
seeking relief, Officer Brown claimed he was senior to two of
the three promoted over him - in contravention of the
seniority "tradition" cited by the city solicitor
in June 2014 - and he claimed more experience as "acting
sergeant" than two of the three promoted officers.
Officer Brown also argued to the Commission that the officer
in first place had both been caught sleeping while on duty in
2016 and received complaints about his interactions with the
community. Contrasting that officer's circumstances with
his own, Officer Brown claimed he was never disciplined,
never received complaints about his public interactions, and
was honored several times in the past for outstanding
and its police chief disputed Officer Brown's
contentions, claiming in their own submissions that the
officers in first and fourth place on the list had both
logged hours as "acting sergeant"; presumably,
because he wasn't mentioned, the City and the police
chief conceded the officer in third place had not logged
"acting sergeant" hours. Officer Brown responded
that he had almost three times the amount of hours as
"acting sergeant" than the officer in first place
on the list.
and its police chief also expressed concerns about Officer
Brown's performance in supervising others as noted in his
most recent performance review; the other candidates,
according to Salem and its police chief, did not receive
similar criticism in their performance reviews. The chief of
police acknowledged Officer Brown received awards for past
service, but he claimed the other candidates did as well.
And, the chief of police disputed Officer Brown's claim
to a clean disciplinary record, asserting that Officer Brown
once allowed a less-experienced officer to take control of a
tactical briefing during his shift as ...