ERITERITM S RR EPOREPORTERTERYSTEMYSTEMVOLUME ? NUMBER 1

A digest of notable Merit System decisions Volume 11, Number 1 - Fall 2004

WRITTEN RECORD APPEALS &HEARING MATTERS

IN THIS ISSUE

FROM THE COURT

TO OUR READERS:

OF PERSONNEL INTEREST

Major Rule Changes………….......................... page 14Active Military Service Warrants List RevivalIMO Giocchino Panico …………………………....…......page 2

Board’s Statutory Authority to Increase Disci-plinary Penalty Properly ExercisedIMO Craig Davis...........................................……....... page 3

Appointment of Veteran Mandated Where Top-ranked Non-veteran Not InterestedIMO Thomas D’Angelo ..………………………..........…page 8

Good Cause Not Shown to Extend CertificationDisposition DateIMO Police Officer (S9999B),City of South Amboy ................................................. page 11

Violations of Last Chance Agreement SufficientBasis for Removal

IMO Horace Watson …………………………………….page 16

Supreme Court Rescinds Appointment Based onSecurity Breach of Make-up ExaminationsIMO Police Sergeant (PM3776V),

City of Paterson .…..……............................................ page 17

Non-disclosure of Arrest Record Grounds forRemoval

IMO Anthony Dillard ……………………………....…. page 20

Court Agrees with Board’s Interpretation of 45-day Rule

IMO Joseph McCormick ……………………………...... page 22

Court Overturns AbsoluteVolunteer Firefighter PreferenceIMO Richard Dreyer, II, and

James Hammond ……................................................. page 25

When we launched the premier issue of theMerit System Reporter in 1988, we told our readersthat this publication “was developed in response tonumerous requests from attorneys, union leaders, pub-lic employers and other interested parties for a sourceof information on decisions concerning merit systemlaw and rules.” We went on to express our hope thatreaders “will find this publication informative anduseful.”

Through the years, we have received signifi-cant positive feedback from our readers. We haveheard from many of you that the Merit System Re-porter is both informative and useful. Indeed, the onlycriticism we received was that the publication did notappear often enough, or did not include enough deci-sions.

Now, with the development of the Internet andthe enhancement of the Department of Personnel’s website, we have the means to provide all interested par-ties—not just those on our mailing list—with an abun-dant source of decisions on merit system law and rules.Beginning with January 2004, notable decisions bythe Merit System Board and the Commissioner of Per-sonnel are being placed on our web site atwww.state.nj.us/personnel. In the months and yearsahead, we will add to this resource, without the limi-tations of printing, paper and mailing. We also planto index these decisions, so that this portion of theweb site will become a valuable research tool.

With this new resource, it will no longer benecessary to publish the Merit System Reporter. There-fore, with mixed feelings, I am announcing to our read-ers that this is the final issue of the Merit SystemReporter.

Henry MaurerEditor-in-Chief

www.state.nj.us/personnel

MSR 11:12

WRITTEN RECORD APPEALSAND HEARING MATTERS

Active Military Service WarrantsList RevivalIn the Matter of Giocchino Panico,Police Officer (S9999B), City of Paterson(Merit System Board, decided September 3, 2003)

Giocchino Panico requests that theeligible list for Police Officer (S9999B), City ofPaterson, be revived so that his name may becertified to the appointing authority when he isreleased from active military duty.

The subject eligible list was promulgatedon April 20, 2001 and expired on June 19, 2002.Appellant’s name appeared as the 26th rankednon-veteran on the October 16, 2001certification of the subject eligible list(Certification No. OL012085). Althoughappellant had an interview with the subjectjurisdiction, he was unable to completepreemployment processing prior to beingactivated into the United States Marine CorpsReserves. As such, the appointing authorityindicated that appellant was to be retained as“Interested, future certifications only” when itreturned the certification for disposition on June5, 2002.

On appeal, appellant asserts that whenhe contacted the Paterson Police Departmentto inform them of his active status, “everyonemade it seem that it was not a big deal, that Iwould still be on the list, and that I would mostlikely be in the next academy upon my return.Unfortunately, this is not what happened. I wastold that my scores were to be thrown out andthat I would have to start the entire process overand retake the exam.” In support of his appeal,appellant has submitted additionaldocumentation, including a copy of the ordersdated December 12, 2001, calling him to activeduty status and correspondence on his behalffrom Police Lieutenant William Mott, PatersonPolice Department. Additionally, appellantsubmits a copy of his new orders for active dutyfrom March 2003 to March 2004.

It is noted that the appointing authoritywas notified of this matter and has filed noobjection.

CONCLUSION

In the instant matter, appellant assertsthat because he was called to active duty andunable to complete the appointment process, heshould not be punished for his decision to “honorand defend my country by entering the UnitedStates Marine Corps.” Lieutenant Mottindicates that “[a]s a former United StatesMarine I know what it is to serve your Country.At the very least in this time of war this Countrycan attempt to assist these men and women ofthe armed services in any legal way possible.”

Under the circumstances presented,appellant should be given an opportunity to beconsidered for appointment upon his returnfrom active military duty. However, ifappointed, appellant is not entitled to aretroactive date of appointment. N.J.A.C. 4A:4-4.6(a) provides that interested eligibles onmilitary leave shall continue to be certified andthe appointing authority may consider sucheligibles immediately available for appointmenteven though reporting for work may be delayed.Therefore, appellant did not possess a vestedproperty interest in employment and hisappointment is not mandated. Further, the onlyinterest that results from placement on aneligible list is that the candidate will beconsidered for an applicable position so long asthe eligible list remains in force. See Nunan v.Department of Personnel, 244 N.J. Super. 494(App. Div. 1990). See also In the Matter of EmilioNazario, Sheriff’s Officer (S9999B), MercerCounty (Merit System Board, decided January15, 2003) (The Board found that although theappointing authority had not sufficientlysupported its request to remove a veteran froman eligible list, the veteran was not entitled toa mandated appointment pursuant to N.J.A.C.4A:4-4.6(a); however, the Board ordered thatonce available, he was to be certified for futureemployment opportunities). In addition,

MSR 11:13

N.J.A.C. 4A:5-2.1(b) provides that veteran’spreference is effective for all examinations inwhich the closing date for applications falls onor after the determination of veteran’spreference eligibility. A review of the recordindicates that the application filing deadline forthe subject exam was February 25, 2000 andappellant established veteran’s preference onSeptember 27, 2002. As such, appellant cannotreceive veteran’s status for the subject exam.However, he will be eligible to claim veteran’spreference for all future examinations.

ORDER

Therefore, it is ordered that this requestbe granted and once appellant notifies HumanResource Information Services (HRIS) and theappointing authority of his availability, the listfor Police Officer (S9999B), City of Paterson berevived at that time, in order that appellant maybe considered for appointment at the time of thenext certification, for prospective employmentopportunities only.

Craig Davis, a Senior Correction Officerat South Woods State Prison, Department ofCorrections, represented by Colin M. Lynch,Esq., petitions the Merit System Board forreconsideration of the final decision, renderedon December 4, 2002, which affirmed the ALJ’srecommendation to increase his disciplinarypenalty from a 15-day suspension to a six-monthsuspension.

The record reflects that the petitioner wasserved with a Final Notice of DisciplinaryAction, dated August 17, 2001, charging himwith inappropriate physical contact ormistreatment of an inmate and suspending himfor 15 days. Specifically, the appointingauthority asserted that, on June 6, 2001, thepetitioner slapped an inmate, JB, on thebuttocks while conducting a routine strip search.The petitioner filed an appeal of this disciplinaryaction with the Board, and the matter wastransmitted to the Office of Administrative Law(OAL) for a hearing as a contested case.

In his initial decision, AdministrativeLaw Judge (ALJ) Israel D. Dubin recounted, indetail, the testimony presented at the hearingat the OAL. Specifically, the ALJ wasconfronted with two distinct accounts of theevents of June 6, 2001. According to JB, he and19 other inmates were assigned to complete ahighway clean-up detail on June 6, 2001. Uponreturning to the facility after completion of thedetail, JB and the other inmates waited on lineto be strip searched before returning to theircells. When he entered a partitioned area wherethe petitioner was conducting the searches, JBtestified that the petitioner slapped him on thebuttocks. JB immediately dressed and reported

Board’s Statutory Authority toIncrease Disciplinary PenaltyProperly ExercisedIn the Matter of Craig Davis, Departmentof Corrections(Merit System Board, decided March 26,2003)

MSR 11:14

to Correction Lieutenant Richard Battle’s officeto complete a report on the incident. Anotherinmate, MB, testified in support of JB’s account.MB testified that he was in the cubicle next toJB, when he heard somebody encourage thepetitioner to slap JB on the buttocks. MB thensaw the petitioner “take a swing,” and he hearda slapping noise. Inmate TB testified that, whilehe was waiting in line to be strip searched, heheard someone jokingly make a comment aboutJB’s desire to be slapped on the buttocks.Shortly thereafter, TB heard a slapping noise,and he saw an “expression of shock” on JB’s face.Similarly, inmate SP testified that he witnessedthe petitioner’s hand “swing upward at mediumspeed,” and he heard a slapping noise. On theother hand, the petitioner testified that nothingunusual occurred during his strip search of JBon June 6, 2001. The petitioner denied touchingJB in any way during the search, and he claimedthat the only noise the other inmates could haveheard was the sound of boots being clappedtogether.

Based on the above testimony, the ALJfound that the account of the June 6, 2001incident presented by the inmates was the morecredible account. In this regard, the ALJ firstnoted that the inmates who testified in supportof JB’s version of events had no reason to lie forhim. Specifically, many of the inmates whoworked the highway detail on June 6, 2001 wereresentful towards JB because he was relativelynew to the assignment, and he had beendesignated the “A-man,” a position of leadership.The ALJ also indicated that TB did not evenknow JB’s name until he was asked to preparea statement regarding this incident. In addition,both the petitioner and JB agreed that therewas no history between them, which would havemotivated JB to concoct a story regarding theincident. The ALJ also noted the consistenciesamong the testimony presented by the inmates,and that their testimony at the hearing wasconsistent with written statements the inmatesproduced on the date of the incident. Moreover,the ALJ found that the petitioner’s testimonywas not credible, based on both the substance

of the petitioner’s testimony and his demeanorduring his testimony. Thus, the ALJ found thatthe petitioner engaged in the conduct charged,and that his conduct warranted major discipline.In his determination of the proper penalty, theALJ noted the serious nature of the petitioner’sconduct. In this regard, the ALJ considered notonly the inappropriate nature of the incidentitself, but also the potential that such conductcould “easily escalate into violence.”Accordingly, the ALJ determined that a six-month suspension would serve as anappropriate penalty, as it “is more in line withthe severity of the offense.” Upon its de novoreview, the Board affirmed the ALJ’srecommendation to uphold the charges andimpose a six-month suspension.

In his petition for reconsideration, thepetitioner asserts that the Board made a clearmaterial error by adopting the ALJ’s initialdecision without comment. The petitionerargues that the ALJ and the Board failed toidentify any compelling reason which wouldjustify such a radical increase in a penalty, from15 days to six months, which was particularlynecessary in light of the appointing authority’sfailure to propose such a stiff penalty. In thisregard, the petitioner notes that no significantphysical injury resulted from his contact withJB, and there was no evidence that his conductwas a “gratuitously violent act.” Moreover, thepetitioner emphasizes that there were no factsrevealed during the hearing which were notknown to the appointing authority at the timeit determined that a 15-day suspension wasappropriate. In addition, the petitionercontends that the ALJ and the Board failed toutilize the concept of progressive discipline indetermining the proper penalty, and no basiswas provided for the failure to do so. In thisregard, the petitioner emphasizes that his priordisciplinary record is devoid of any priorincidents involving mistreatment or impropercontact with inmates. Finally, the petitionerargues that the significant increase of thepenalty in this case “will have a chilling effecton employees’ exercise of their statutory right

MSR 11:15

of appeal,” and the issue of the proper penaltyshould be revisited for public policy reasons. Insupport of this assertion, the petitioner cites Inre Bruni, 166 N.J. Super. 284 (App. Div. 1979).In that case, the Appellate Division held thatan increase in a disciplinary penalty by a CountyCourt violated public policy. The petitionerasserts that, while Bruni, supra, concerned anemployee of a non-civil service municipality, the“public policy considerations which lead [sic] theCourt in Bruni to reverse the increased penaltyimposed by the reviewing court on appeal applywith equal force here.” The petitioner alsoemphasizes that such an increase in thedisciplinary penalty is at odds with the primarypurpose of civil service laws and regulations,which he claims “are intended to protect publicemployees from political coercion, partisanship,and personal favoritism.” Finally, the petitionerrequests that the Board grant a stay of hissuspension, pending the outcome of the instantmatter. It is noted that the appellant’ssuspension was scheduled to commence onJanuary 25, 2003.

In response, the appointing authorityargues that the ALJ and the Board properlyconsidered additional aggravating factors inincreasing the penalty for the petitioner’soffense. Specifically, the appointing authoritynotes that, while it viewed the petitioner’sconduct as a straightforward simple assault, thetestimony presented at the de novo hearing atthe OAL brought to light the dangerouspotential for violence and sexual overtonesunderlying the petitioner’s conduct. Moreover,the appointing authority contends that theBoard has consistently found that certainconduct clearly warrants a severe disciplinarypenalty, regardless of an employee’s priordisciplinary history. Further, concerning thepetitioner’s public policy arguments, theappointing authority notes that the Board hasthe authority to increase the penalty imposedby an appointing authority, and this power hasbeen exercised in past cases. The appointingauthority also emphasizes that the sole casecited by the petitioner in support of his public

policy arguments, In re Bruni, supra, isdistinguishable from the present matter. In thisregard, the appointing authority notes thatBruni dealt with an employee in a non-civilservice jurisdiction. In addition, in Bruni, theCounty Court increased the penalty imposed ona municipal Police Officer from a 15-daysuspension to removal. The appointingauthority maintains that “there is a qualitativedifference between increasing the term of thesuspension and transforming a suspension intoa removal.”

In response, the petitioner maintains thatthe significant increase in the disciplinarypenalty in this matter was not warranted. Inthis regard, the petitioner notes that “the factsas found by the ALJ were the same as thosealleged at the time of the 15-day suspension.”Absent new factual circumstances, thepetitioner asserts that the Board is without theauthority to increase the penalty sosignificantly. Further, the petitioner contendsthat the Board “neither reviewed the ALJ’sinitial decision in any depth, nor provided anyreasons for its decision to affirm the ALJ’srecommendation.”

MSR 11:16

CONCLUSION

N.J.A.C. 4A:2-1.6(b) sets forth thestandards by which the Merit System Boardmay reconsider a prior decision. This ruleprovides that a party must show that a clearmaterial error has occurred or present newevidence or additional information notpresented at the original proceeding whichwould change the outcome of the case and thereasons that such evidence was not presentedat the original proceeding.

The instant request for reconsiderationdoes not involve new evidence or additionalinformation, but is based on the assertion thatthe Board made an error. It is noted that all ofthe evidence relied upon and argumentsadvanced by the petitioner in support of hisposition were presented either at the hearingbefore the ALJ or in the exceptions submittedto the Board prior to its decision.

As an initial matter, the petitionercontends that the increase in the disciplinarypenalty, recommended by the ALJ and adoptedby the Board is contrary to public policy anddisregards the impact on employees who wishto exercise their statutory right to appeal theimposition of disciplinary action. In this regard,the powers and duties of the Merit System Boardare set forth in the Civil Service Act. SeeN.J.S.A. 11A:1-1, et seq. Significantly, N.J.S.A.11A:2-19 specifically provides that the Board“may increase or decrease the penalty imposedby the appointing authority.” The onlylimitation on this authority, which wasexpressly conferred by the Legislature, is that“removal shall not be substituted for a lesserpenalty.” Thus, the petitioner’s arguments thatthe Board’s action in this matter are contraryto public policy and disregard the potential“chilling effect” on the exercise of the statutoryright of employees to file appeals are notpersuasive. The same public laws which grantthe statutory right to appeal also grant theBoard the statutory authority to increase adisciplinary penalty where such an appeal isfiled. The Board also notes that its ability to

increase a disciplinary penalty upon its de novoreview is not at odds with the legislative purposeof civil service laws and rules. In this regard:

[T]he primary object and the purposeof civil service law is to secure forgovernment, state, county andmunicipal, efficient public service in allits many functions. The welfare of thepeople as a whole, and not specificallyor exclusively the welfare of the civilservant, is the basic policy underlyingthe law. Borough of Park Ridge v.Salimone, 21 N.J. 28, 44 (1956).

See also State-Operated School District v.Gaines, 309 N.J. Super. 327, 334 (App. Div.1998). Thus, it is the Board’s obligation to strikean appropriate balance between the substantiveand procedural rights afforded to publicemployees and the duties of those employees toprovide effective and efficient service to thepublic. This obligation mandates the impositionof appropriate disciplinary penalties foremployees whose conduct or performanceinterferes with these goals.

In addition, the petitioner’s reliance onBruni, supra, is misplaced. In Bruni, theAppellate Division held that a County Court’saction in dismissing an employee in a non-civilservice jurisdiction was improper, where a lesserpenalty had been imposed by the municipality.In determining that N.J.S.A. 40A:14-150, thestatute which granted the County Court thejurisdiction to entertain such an appeal and“affirm, reverse or modify” the recommendedpenalty, did not vest the County Court withthe authority to increase the recommendedpenalty, the Appellate Division specificallydistinguished N.J.S.A. 11:15-6, the statutorypredecessor to N.J.S.A. 11A:2-19. At the timeof the decision in Bruni, N.J.S.A. 11:15-6 vestedthe Civil Service Commission with the authorityto “modify or amend the penalty imposed by theappointing authority.” The court noted that, byspecifically withholding the authority tosubstitute the penalty of removal for a lesser

MSR 11:17

penalty, the Legislature implicitly granted theCivil Service Commission the power to increasea disciplinary penalty, so long as the finalpenalty imposed was less than removal. Seealso Sabia v. City of Elizabeth, 132 N.J. Super.6, 16 (App. Div. 1974). In any event, theLegislature removed any doubt regarding thescope of the power delegated to the Board withregard to modifying disciplinary penalties, whenit adopted N.J.S.A. 11A:2-19, which expresslyprovides that the Merit System Board mayincrease a disciplinary penalty upon its de novoreview. It is noted that the Appellate Divisionhas upheld the Board’s exercise of this power inthe past. See, e.g., Sabia, supra (AppellateDivision upheld Civil Service Commission’sincrease in penalty from 30-day suspension tosix-month suspension for Police Officers whobroke into a locked building and removedpersonal property from within); see also Dunnand Shogeke v. Merit System Board, Docket No.A-4645-96T1 (App. Div. March 20, 1998)(Appellate Division upheld Board’s increase inpenalty from 30 days to four months for twoCorrection Officers who were charged withconduct unbecoming a public employee followingtheir convictions for assault and resistingarrest).

Further, the appellant argues that theBoard improperly increased the penalty in theinstant matter, noting that the appointingauthority never advocated anything more thana 15-day suspension for the petitioner’s conduct.However, nothing in N.J.S.A. 11A:2-19 suggeststhat the appointing authority’s consent mustprecede the Board’s exercise of its authority toincrease the penalty. The fact that the Board isvested with the authority to increase or decreasedisciplinary penalties obviates the need for theappointing authority’s support for suchmodification. The purpose of this power is,indeed, to permit the Board to substitute itsdetermination of the proper penalty where thecircumstances warrant such action.

Moreover, the petitioner contends thatneither the ALJ nor the Board has set forth anycompelling reason to justify such a significant

increase in the disciplinary penalty. Thepetitioner also asserts that the concept ofprogressive discipline was inappropriatelydisregarded in assessing the proper penalty forhis conduct. On the contrary, the ALJ’s initialdecision, which was adopted in full by the Board,provides a detailed and thorough summary andanalysis of the testimony presented at thehearing at the OAL, which painted a disturbingpicture of the events of June 6, 2001, andpresented a compelling reason to justify asignificant increase in the disciplinary penaltyimposed by the appointing authority. In thisregard, it must be recognized that, indetermining the propriety of a penalty, severalfactors must be considered, including the natureof the petitioner’s offense, the concept ofprogressive discipline, and the employee’s priorrecord. George v. North PrincetonDevelopmental Center, 96 N.J.A.R. 2d (CSV)463, 465. Although the Board applies theconcept of progressive discipline in determiningthe level and propriety of penalties, anindividual’s prior disciplinary history may beoutweighed if the infraction at issue is of aserious nature. Henry v. Rahway State Prison,81 N.J. 571, 580 (1980). Even when a CorrectionOfficer does not possess a prior disciplinaryrecord after many unblemished years ofemployment, the seriousness of an offenseoccurring in the environment of a correctionalfacility may nevertheless warrant the penaltyof removal where it compromises the safety andsecurity of the institution or has the potentialto subvert prison order and discipline. Henry v.Rahway State Prison, supra, 81 N.J. at 579-80.In the petitioner’s case, despite the absence ofany major disciplinary history, his offense wassufficiently egregious to warrant an increase inthe proposed penalty from a 15-day suspensionto a six-month suspension. The unprovokedphysical assault of an inmate, an individualunder the petitioner’s charge, certainlycompromises the safety and security of theinstitution and has the dangerous potential tosubvert prison order. Such conduct signals aninability to control one’s behavior and is

MSR 11:18

Thomas D’Angelo appeals the decision ofthe appointing authority to bypass his name onthe Senior Sanitary Inspector (PC0781A),Warren County eligible list.

The subject eligible list was promulgatedon October 21, 1999 and expired on October 20,2002. The appellant, a veteran, was the numbertwo ranked eligible on the October 8, 2002certification of the subject eligible list. Indisposing of the certification, the appointingauthority bypassed the number one eligible,Tom Allen, a non-veteran, and the appellant,and appointed Kathy Davis and Sally Weirback,the third and fourth ranked non-veteraneligibles, effective December 5, 2002.

On appeal to the Merit System Board(Board), the appellant argues that he wasunfairly bypassed on the certification. Theappellant contends that the appointingauthority incorrectly listed Allen on thecertification as being bypassed for appointment.Rather, the appellant claims that Allen shouldhave been listed as not interested in anappointment at this time. If Allen was notinterested, the appellant contends that he couldnot be bypassed since he was a veteran. Insupport of this claim, the appellant submitsAllen’s October 21, 2002 response to the October8, 2002 certification, which indicated that hewas not interested in being appointed at thattime, but would like to be considered for futureappointments. Based on the foregoing, theappellant argues that once Allen indicated hewas not interested in the position, he shouldhave been appointed. Additionally, theappellant alleges that he spoke with an

contrary to the high standard of good conductfor a State Correction Officer, who is a lawenforcement officer entrusted with maintainingthe safety and security of State correctionalfacilities. See Moorestown v. Armstrong, 89 N.J.Super. 560, 566 (App. Div. 1965), cert. denied,47 N.J. 80 (1966). See also In re Phillips, 117N.J. 567 (1990). Therefore, the Board properlyexercised its authority to increase the penaltyimposed in this matter, and there is no basisfor concluding that a clear material error hasoccurred. Accordingly, the petitioner’s requestfor reconsideration is without merit and shouldbe dismissed. Further, it is noted that thepetitioner’s request for a stay in this matter ismoot.

ORDER

Therefore, it is ordered that this requestfor reconsideration be denied and the requestfor a stay be dismissed as moot.

Appointment of Veteran MandatedWhere Top-ranked Non-veteran NotInterestedIn the Matter of Thomas D’Angelo, SeniorSanitary Inspector (PC0781A),Warren County(Merit System Board, decided October 22,2003)

MSR 11:19

employee of the Department of Personnel (DOP)who stated to him that once Allen declinedinterest in promotion, a new ranking wasimmediately generated. Further, the appellantclaims that promotional procedures were notfollowed when a provisional appointment wasmade for the subject position while the subjecteligible list was still valid.

In response, the appointing authoritycontends that it received advice from anotherDOP employee which indicated that as long asAllen wished to remain on the list, although notinterested at the time, the selection processwould be open to the following three eligibles.Additionally, the DOP employee indicated thatthe appellant, as a veteran, would not haveexclusive rights to an appointment but could beconsidered among the next three eligibles.Further, the appointing authority asserts thatit appointed Kathy Davis as provisional in thesubject title after a position classification reviewwas performed by the DOP.

It is noted that DOP records indicate thatin a September 9, 2002 letter, the DOP’sDivision of Human Resource Management(HRM) informed the appointing authority thatbased on HRM’s position classification reviewfor Davis, her title was being reclassified fromSanitary Inspector to Senior Sanitary Inspector.This letter also indicated that Davis wasconsidered to be serving provisionally as aSenior Sanitary Inspector pending apromotional examination for the subject titleeffective June 29, 2002. However, in a letterdated October 24, 2002, HRM advised theappointing authority that it had been broughtto its attention that a complete promotionaleligible list for the subject title was in existence,and as such, Davis’ provisional appointmentcould not be approved.

CONCLUSION

Initially, a review of the record revealsthat the appointing authority placed Davis asthe provisional in the subject title in responseto the outcome of HRM’s position classificationreview for Davis. This provisional appointmentwas later disapproved because a completepromotional eligible list for the subject title wasin existence. Based on the foregoing, the Boardfinds that the issue of Davis’ provisional statuswas corrected and that no further action isrequired.

N.J.S.A. 11A:4-8 provides that “[a]certification that contains the names of at leastthree interested eligibles shall be complete anda regular appointment shall be made fromamong those eligibles.” N.J.A.C. 4A:4-4.8(a)3provides that an appointing authority shallappoint one of the top three interested eligibles(rule of three) from a promotional list. N.J.A.C.4A:4-4.8(a)3ii states that “[i]f the eligible whoranks first on a promotional list is a veteran,then a nonveteran may not be appointed.”N.J.S.A. 11A:5-7 provides that “[w]henever aveteran ranks highest on a promotionalcertification, a nonveteran shall not beappointed unless the appointing authority shallshow cause before the [B]oard why a veteranshould not receive such promotion.” See alsoN.J.A.C. 4A:5-2.2(c). Additionally, N.J.A.C.4A:5-2.2(b) states that “[a] list of eligibles whohave passed a promotional examination shallappear in the order of their scores regardless ofveteran or nonveteran status.” Further,N.J.A.C. 4A:5-2.2(e) states that “[i]f there ismore than one vacancy, and a veteran is rankedfirst on the certification as a result of the firstappointment from the certification, then aveteran must be appointed to the next vacancy.”Finally, N.J.A.C. 4A:2-1.4(c), in conjunction withN.J.A.C. 4A:4-4.8(b)4, provides that theappellant has the burden of proof to show by apreponderance of the evidence that anappointing authority’s decision to bypass theappellant from an eligible list was improper.

MSR 11:110

In the instant matter, the appellant wasbypassed in favor of lower-ranked eligibles. Theappellant argues that the appointing authorityincorrectly listed Allen as being bypassed forappointment when in fact he was not interestedin an appointment. He relies on Allen’s letterto the appointing authority, which confirms theappellant’s allegations. Based on Allen’s non-interest, the appellant claims that he shouldhave been appointed based on his status as aveteran. The appointing authority contendsthat it received advice from the DOP whichindicated that a veteran is only required to beappointed from a promotional certification whenhe or she ranks highest on the certification, andthat Allen is the highest ranking eligible,regardless of his non-interest in an appointmentat that time. Thus, it was not required toappoint the appellant but could choose fromamong the top three interested eligibles.

The Board finds this interpretation ofMerit System law and rules incorrect. Asprovided in N.J.S.A. 11A:4-8 and N.J.A.C. 4A:4-4.8(a)3, the appointing authority shall appointone of the top three interested eligibles from apromotional list. (emphasis added). In thisregard, once Allen indicated that he was notinterested in the position, he was no longerconsidered an eligible on that certification.Accordingly, the appellant became the numberone interested eligible on the subjectcertification. Further, as the appellant was aveteran, he could not be bypassed forappointment. See N.J.S.A. 11A:5-7, N.J.A.C.4A:5-2.2(c) and N.J.A.C. 4A:4-4.8(a)3ii. Thisinterpretation is also consistent with the recentamendments to N.J.A.C. 4A:5-2.2 part (c)through (g) which took effect March 17, 2003.These rules were amended to clarify veteranspreference on a promotional certification wheremore than one appointment is made and theyprovide that veterans preference is an issue thatmust be addressed for each appointment froma promotional certification. See Zigenfus v.Balentine, etc., 129 N.J.L. 215 (S.Ct. 1942)(Court found that each appointment from acertification where multiple appointments are

made should be considered separately. Thus,according to the Court, the first appointment ismade from the top three eligibles andsubsequent appointments are made from the topthree eligibles on the list as it stands after eachprevious appointment). Accordingly, if a non-veteran heads the certification, a non-veteranmay be appointed to the first vacancy. However,if a veteran is ranked first as a result of thefirst appointment, a veteran must be appointedto the second vacancy. Central to the issue ofthe amendments was the DOP’s interpretationof N.J.S.A. 11A:5-7, which would continue toensure the protection of the rights of veteransin the merit system selection process asguaranteed by the New Jersey StateConstitution.

Given this analysis, the Board orders thatthe appellant’s appointment is mandated. TheBoard notes that the appointing authority is notrequired to displace either of the two previouslyappointed individuals if another position exists,however, it is required to appoint the appellant.Once appointed, the appellant would be entitledto a retroactive date of appointment toDecember 5, 2002 upon the successfulcompletion of a working test period. This dateis for salary step placement and seniority-basedpurposes only. The Board notes that theappellant is not entitled to any back pay in thismatter. The Board does not provide for awardsof back pay for appeals that are decided by theBoard based on the written record unless,pursuant to N.J.A.C. 4A:2-1.5(b), sufficientcause is presented. N.J.A.C. 4A:2-1.5(b)provides:

MSR 11:111

The City of South Amboy, represented byFranklin G. Whittlesey, Esq., appeals the deci-sion of Human Resource Information Services(HRIS), which denied the appointing authority’srequest to extend the disposition due date of theNovember 27, 2001 certification of the eligiblelist for Police Officer, City of South Amboy(S9999B).

By way of background, the eligible listfor Police Officer (S9999B), City of South Amboypromulgated on April 20, 2001 and expired onJune 19, 2002. The eligible list was certified tothe appointing authority on November 27, 2001with a disposition due date of May 27, 2002.The appointing authority requested a 90-dayextension of the due date, but HRIS only granted60 days to July 27, 2002. The certification wasreturned to HRIS on July 26, 2002. In dispos-ing of the certification, the appointing author-ity appointed Patricia Kanecke, the first rankedeligible, effective November 27, 2001. The ap-pointing authority also indicated that JamesCharmello, Lenard Smith and John Sullivan,Jr., who ranked third, fifth and sixth on the cer-tification, respectively, would be appointed onSeptember 13, 2002 due to the fact that theirappointments were contingent upon receipt of“Extraordinary Municipal Aid” and requestedthat the certification disposition due date beextended to that time.

However, HRIS denied the appointingauthority’s request, stating that the September13, 2002 appointment date was prohibited onthe basis that the date was past the extendedcertification disposition due date of July 27,2002. See N.J.A.C. 4A:4-4.9(a)3. Additionally,it indicated that no good cause was shown to

Good Cause Not Shown to ExtendCertification Disposition DateIn the Matter of Police Officer (S9999B),City of South Amboy(Merit System Board, decided May 7, 2003)

Back pay, benefits and counsel fees maybe awarded in disciplinary appeals andwhere a layoff action has been in badfaith. See N.J.A.C. 4A:2-2.10. In allother appeals, such relief may be grantedwhere the appointing authority hasunreasonably failed or delayed to carryout an order of the Commissioner orBoard or where the Board finds sufficientcause based on the particular case.

The appellant’s appeal is not a disciplinaryappeal, nor was it one where the appointingauthority failed or delayed to carry out a Boardorder. Thus, back pay may only be awarded ifthe Board finds sufficient cause in thisparticular matter. A thorough review of therecord does not establish bad faith or someinvidious reason for the appointing authority’sactions. Rather, it appears that the appointingauthority sought advice on how to properlydispose of the certification, and acted on thatadvice. Accordingly, the appellant is not entitledto back pay.

ORDER

Therefore, the Merit System Board ordersthat this appeal be granted and that theappellant’s appointment is mandated. Upon thesuccessful completion of his working test period,the Board orders that appellant be granted aretroactive date of appointment to December 5,2002. This date is for salary step placementand seniority-based purposes only. However,the Board does not grant any other relief, suchas back pay, except the relief enumerated above.

MSR 11:112

grant further extensions of the disposition duedate. In this regard, HRIS stated that sincethe eligibles did not take medical or psychologi-cal examinations, they were not given bona fideoffers of employment to warrant further exten-sions. See Americans with Disabilities Act(ADA), 42 U.S.C.A. sec. 12101, et seq.; N.J.A.C.4A:4-6.5(b). It is noted that the appointingauthority amended the certification and ap-pointed James Charmello, the third ranked eli-gible, effective July 26, 2002. It is further notedthat a new eligible list for Police Officer(S9999D) promulgated on June 28, 2002 andexpires on June 27, 2004. Smith and Sullivan’snames appear on that eligible list.

On appeal to the Merit System Board(Board), the appointing authority argues thatin denying its request to extend the certifica-tion disposition due date to September 13, 2002,HRIS did not take into consideration that thesubject eligible list could be extended for goodcause under N.J.A.C. 4A:4-3.3(a)1. In this re-spect, the appointing authority states that it wasfacing budgetary issues in appointing Smith andSullivan. Moreover, it contends that Smith andSullivan were extended bona fide offers of em-ployment by virtue of the Mayor of SouthAmboy’s verbal offer of employment to theseeligibles. It is noted that the appointing au-thority has not submitted evidence, such as acertification or affidavit from the Mayor, in thatregard. Finally, the appointing authority re-quests a hearing in this matter.

CONCLUSION

Initially, the appointing authority re-quests a hearing on this matter. However, re-quests for extensions of disposition due datesand requests for extension of lists are treatedas reviews of the written record. See N.J.S.A.11A:2-6(b). Hearings are granted only in thoselimited instances where the Board determinesthat a material and controlling dispute of factexists which can only be resolved through ahearing. See N.J.A.C. 4A:2-1.1(d). No materialissue of disputed fact has been presented which

would require a hearing. See Belleville v. De-partment of Civil Service, 155 N.J. Super. 517(App. Div. 1978). N.J.A.C. 4A:4-3.3(a)1 statesthat an eligible list may, for good cause, be ex-tended by the Commissioner of Personnel priorto its expiration date, except that no list shallhave a duration of more than four years. More-over, N.J.A.C. 4A:4-4.9(a)3 provides that an eli-gible shall not be appointed and begin work af-ter the expiration date of the eligible list exceptwhen the certification is made just prior to theexpiration of the eligible list, in which case thedate of appointment and the date the eligiblebegins work shall be no later than the disposi-tion due date.

The appointing authority contends thatbecause of budgetary constraints, appointmentswere not available for Smith and Sullivan untilSeptember 13, 2002. At that time, it would havereceived the necessary aid to fund the eligibles’appointments. HRIS denied the appointingauthority’s request to extend the certificationdisposition due date to September 13, 2002 toeffectuate the appointments. The Board agreeswith HRIS’ decision and finds that the appoint-ing authority has not shown good cause to re-vive and extend the subject eligible list or togrant its request for an additional extension ofthe certification disposition due date. In evalu-ating whether good cause exists, the Board looksto the totality of the circumstances of each par-ticular case. In this case, a new eligible list pro-mulgated on June 28, 2002 for Police Officer(S9999D). Nevertheless, HRIS accommodatedthe appointing authority’s situation by extend-ing the disposition due date of the November27, 2001 certification to July 27, 2002. How-ever, a further extension of the due date wouldadversely affect the eligibles on the new list,who have been newly tested. The appointingauthority’s budgetary concerns do not overcomethe Board’s policy against using stale lists.

Moreover, the appointments of Smith andSullivan are not mandated to warrant an ex-tension of the disposition due date. In this re-gard, a review of the record indicates that Smithand Sullivan were not administered medical or

MSR 11:113

psychological examinations, which would haveimplicated the ADA and may mandate theirappointments. The only interest that resultsfrom placement on an eligible list is that thecandidate will be considered for an applicableposition so long as the eligible list remains inforce. See Nunan v. Department of Personnel,244 N.J. Super. 494 (App. Div. 1990). The Boardnotes that Smith and Sullivan are ranked onthe new list for Police Officer (S9999D) and mayhave the opportunity to be considered for a po-sition in the near future.

Most importantly, the appointments ofSmith and Sullivan were not available untilSeptember 13, 2002. The Board has recentlyconcluded that a request for extension of a cer-tification disposition due date beyond the expi-ration date of a list should only be granted tofill current vacancies. See In the Matter of Wil-liam J. Brennan and Fire Lieutenant (PM1201T)and Fire Captain (PM1191T), Township ofTeaneck (MSB, decided April 9, 2003); In theMatter of Police Lieutenant (PM1356W), City ofHoboken (Commissioner of Personnel, decidedDecember 17, 2002). In Brennan, supra, exten-sions of the certification disposition due dateswere granted beyond the life of the eligible listsfor Fire Lieutenant (PM1201T) and Fire Cap-tain (PM1191T) in order to fill anticipated va-cancies in the titles due to retirements. On re-mand from the Superior Court of New Jersey,Appellate Division, the Board determined thatgenuine vacancies did not yet exist at the timethe subject eligible lists were certified and thecertification disposition due dates were ex-tended. In the meantime, new lists for FireLieutenant and Fire Captain were being pro-mulgated. Thus, the Board concluded that va-cancies must actually exist to justify revival ofeligible lists or extend certification dispositiondue dates. The Board stated that this approachwould accommodate the policy of avoiding stalelists and the principle of merit and fitness. It isnoted that the Board did not rescind the appoint-ments of eligibles who were appointed from thecertifications with the extended disposition duedates since they had a legitimate expectation

that their appointments were permanent andfinal consistent with the then-current regula-tory practices. Similarly, in In the Matter ofPolice Lieutenant (PM1356W), supra, the Com-missioner of Personnel determined that al-though it was permissible to revive and extendan eligible list to effectuate appointments tonewly-created positions, good cause did not ex-ist to extend a list due to anticipated future re-tirements. The Commissioner of Personnel ob-served that an intention to retire does not nec-essarily result in a vacancy, and hence, is notsufficient good cause to extend an eligible list.Thus, the City of Hoboken was permitted to fillthree existing vacancies from the list that wasrevived and extended, but was also directed tofill all future vacancies, including those createdthrough retirements, from a new list for PoliceLieutenant.

In this case, the Board finds that becausethe appointing authority was unable to compen-sate Smith and Sullivan at the time the eligiblelist expired on June 19, 2002, it did not havegenuine vacant positions which Smith andSullivan could fill. As such, good cause has notbeen shown by the appointing authority to re-vive and extend the subject eligible list or toextend the certification disposition due datebeyond July 27, 2002 to effectuate the appoint-ments of Smith and Sullivan. Accordingly, theappointing authority’s appeal is denied.

ORDER

Therefore, it is ordered that this appealbe denied.

MSR 11:114

OF PERSONNEL INTEREST

RULES UPDATEBy: Elizabeth J. Rosenthal

Personnel and Labor Analyst

Until July 1, 2001, when the Administrative Procedure Act (APA) was amended to provide for afive-year sunset provision, Executive Order No. 66 (1978) was in effect and required that all rulesinclude an expiration or sunset date that is no later than five years from the effective date of therule. See, e.g., N.J.S.A. 52:14B-5.1. Several merit system rule chapters in effect prior to the APAamendments had five-year sunset dates pursuant to the Executive Order. These recently came upfor readoption. Accordingly, the Merit System Board readopted the following rule chapters withoutchange:

· N.J.A.C. 4A:1, concerning general rules and department organization. These rules pro-vide definitions of common terms used throughout N.J.A.C. 4A, the organizational structure ofthe Department of Personnel, access to public records, and procedures for the adoption of pilotprograms and for delegation of Department functions.

· N.J.A.C. 4A:2, regarding appeals, discipline and separations. These rules concern theappeal process in general, major and minor discipline, grievances, and appeals regarding re-prisals.

· N.J.A.C. 4A:7, regarding equal employment opportunity and affirmative action. Theserules concern prohibited employment discrimination and the procedures for appealing such ad-verse actions.

· N.J.A.C. 4A:9, regarding political subdivisions. These rules concern the adoption of Title11A by local jurisdictions and the impact that this action has on the rights of existing and futureemployees.

· N.J.A.C. 4A:10, regarding violations and penalties. These rules concern enforcement ofmerit system law and rules and penalties that may be imposed for violations. The rules alsoinclude prohibitions against certain political activities and specific retirement incentives.

The New Jersey Employee Awards Committee, which oversees and regulates the State employeeawards program, is responsible for the rules at N.J.A.C. 4A:6-6. Awards are presented to employ-ees for longevity, suggestions that would save the State money, heroism, professional achievement,and other areas of recognition. As these rules were due to expire, the Committee readopted them,also without change.

The Board readopted the following rule chapters with some changes:

· N.J.A.C. 4A:5, regarding veterans preference. These rules govern eligibility for veteransand disabled veterans preference for merit system job applicants and provide procedures for theapplicability of veterans preference in open competitive and promotional situations. The amend-ments, adopted effective March 17, 2003, reflect recently enacted legislation placing the respon-sibility of veterans preference determinations with the Adjutant General and provide proce-dures to be followed when a promotional certification is used to fill multiple vacancies.

MSR 11:115

· N.J.A.C. 4A:6-1 through 5, regarding leaves, hours of work and employee development.The Board proposed amendments to N.J.A.C. 4A:6-1.13 to make the convention leave provisionsconsistent with recent statutory enactments limiting the types of organizations for which anemployee may take convention leave and the circumstances under which the leave may be taken.Whereas the governing law at N.J.S.A. 11A:6-10 and 40A:14-177 used to permit certain employ-ees to take convention leave for a wide variety of organizations, the law was invalidated in NewJersey State Firemen’s Mut. Benev. Ass’n v. North Hudson Regional Fire & Rescue, 340 N.J.Super.577 (App.Div. 2001). In declaring the statutes unconstitutional, the court held that the laws’inclusion of some ethnic organizations and their exclusion of others had no rational basis andconstituted special legislation. Id. at 588-89. The court also held that the statutes improperlydelegated to private organizations such as unions the power to determine how many could attendtheir conventions without regard to appointing authority staffing needs. Id. at 591-92. (It isnoted that the court did not address another statute regarding convention leave, N.J.S.A 38:23-2, so it remains in effect as originally enacted.)

The Legislature amended the two statutes to address the court’s concerns. Therefore, these lawsnow permit convention leave for only the following organizations: New Jersey Policemen’s Be-nevolent Association, the Fraternal Order of Police, the Firemen’s Mutual Benevolent Associa-tion and the Professional Fire Fighter’s Association. The statutes also limit the number of autho-rized representatives entitled to paid leave to no more than 10 percent of the organization’smembership, subject to some caveats. The amendments to the rule on convention leave, whichtook effect on July 7, 2003, codify the statutes’ new provisions.

The Board had also proposed amendments to N.J.A.C. 4A:6-1.11, the military leave rules. How-ever, a review of the comments received indicated that further substantive changes to the rulewere needed, requiring additional public notice and comment. The Board expects to reproposethe military leave amendment in the near future.

· N.J.A.C. 4A:8, regarding layoffs. These rules govern the manner in which layoffs for reasons ofeconomy or efficiency are handled in State and local service. The Merit System Board proposedthe rules’ readoption with amendments to codify recent legislation requiring that the order oflayoff be conducted in the “inverse order of seniority.” The legislation defines seniority as beingfree of any job performance or merit point factors. Therefore, all language in the rules regardingthe use of “merit points” in determining the order of layoff was proposed for deletion. Followingadoption, the amendments were effective on August 4, 2003.

· N.J.A.C. 4A:4, regarding selection and appointment. These rules govern the merit systemappointment process. The Board proposed their readoption with amendments concerning pro-motional title scopes in local service. The proposed amendments were intended to address acommon problem faced by local appointing authorities, namely, that a local appointing authoritycould use, for example, the titles of Police Chief and Police Sergeant, but not Police Captain andPolice Lieutenant but, due to existing language in N.J.A.C. 4A:4-2.4, a promotional test could notbe opened to Police Sergeant. Thus, a rule relaxation would have had to be approved by theCommissioner to permit the opening of a Police Chief exam to the title of Police Sergeant. Ac-cordingly, the proposed amendments to N.J.A.C. 4A:4-2.4 were intended to eliminate the needfor frequent rule relaxations by allowing the opening of a promotional exam in local service to thetitles actually used in the jurisdiction. The amendments were effective October 6, 2003.

Contact the Legal Liaison Unit at (609) 984-7140 if you would like copies of any of these rule adoptions.

MSR 11:116

FROM THE COURT

The issue in this appeal is whether the MeritSystem Board properly removed petitioner fromhis position as a police officer with the EastOrange Police Department. While under the influence of alcohol, peti-tioner fired his service revolver in the directionof a residence on the campus of then-existingUpsala College. Investigators found nine spentshell casings traceable to petitioner. No one wasinjured. The City of East Orange (respondent) decidedto suspend petitioner with conditions, ratherthan discharge him. The parties memorializedthe terms of petitioner’s suspension in a “lastchance” agreement (LCA). The LCA attachedthree conditions to petitioner’s suspension inlieu of discharge. Condition A required thatpetitioner would enroll in a program for alcohol

(This syllabus is not part of the opinionof the Court. It has been prepared bythe Office of the Clerk for theconvenience of the reader. It has beenneither reviewed nor approved by theSupreme Court. Please note that, in theinterests of brevity, portions of anyopinion may not have beensummarized).

Violations of Last ChanceAgreement Sufficient Basis forRemovalHorace Watson v. City of East Orange175 NJ 442 (2003)

recovery and that the program selected wouldbe mutually acceptable to the parties.Conditions B and C required that petitionersatisfactorily complete the program and that,following his release from the program, he wouldbe counseled by a licensed substance abusecounselor. The LCA also stated that therespondent would determine in its solediscretion when the conditions were met.Consistent with that agreement, respondentsuspended petitioner for ninety working days,beginning January 5, 1997 and ending May 20,1997. Although the LCA reflected thatpetitioner could return to work only when hecompleted the program for alcohol recovery, hedid not begin attending such a program untilMay 5, 1997, fifteen days before his suspensionwas scheduled to end. Following a departmentalhearing, respondent discharged petitioner. Petitioner appealed to the Merit SystemBoard (Board), which transmitted the matteras a contested case to an administrative lawjudge. The administrative law judge upheld thedischarge, finding that petitioner had not com-plied with his supervisor’s previous directive toinform the department by January 10, 1997 ofthe specific recovery program that he had se-lected. Although petitioner did enroll in a pro-gram late in the suspension period, the admin-istrative law judge found that he did not com-plete it within the period of suspension or withina reasonable time from the date of enrollment.The Board adopted the findings of the adminis-trative law judge that petitioner violated theLCA and that dismissal was appropriate. The Appellate Division affirmed. 358 N.J.Super. 1 (App. Div. 2001). The court noted thestandard of review for administrative agencydecisions, i.e., that reversal is appropriate onlyif the decision is arbitrary, capricious or unrea-sonable or is not supported by substantial cred-ible evidence in the record as a whole. The courtexplained that the record contains no evidencethat petitioner ever successfully completed analcohol recovery program. The court also ex-plained that although the LCA did not specifi-cally provide a time limitation for completion

Following are recent Supreme Court andAppellate Division decisions in MeritSystem cases. As the Appellate Divisionopinions have not been approved forpublication, their use is limited inaccordance with R.1:36-3 of the N.J. CourtRules.

MSR 11:117

of the alcohol recovery program, it was reason-ably inferable from all of the circumstances thatpetitioner was required to enroll as soon as pos-sible after signing the agreement and to com-plete the program before he could return towork. Based on those facts, the Appellate Divi-sion saw no basis to reject the Board’s determi-nation.

HELD: The judgment of the Appellate Divi-sion is AFFIRMED substantially for the rea-sons expressed in the Appellate Division’s opin-ion. Under the limited standard of review ap-plicable to administrative agency decisions,there is no basis to overturn the decision of theMerit System Board that petitioner violated thelast chance agreement and that dismissal wasappropriate.

1. Given the dangerousness of petitioner’sinitial conduct, respondent acted in the publicinterest by requiring him to comply with boththe letter and spirit of the LCA. Respondentobviously was not satisfied with the slownessby which petitioner identified and enrolled in asuitable program, his failure to keep respondentabreast of his progress, and his failure to com-plete the program itself. The LCA grants re-spondent the discretion to deem petitioner inbreach of the agreement, justifying his dis-missal.

2. Even if the LCA did not afford respondentthat degree of discretion, the Court’s disposi-tion would be the same. Petitioner was expectedto enroll in and complete a recovery program ina timely fashion, as the LCA’s text and its sur-rounding circumstances make clear. Petitionersimply did not perform as contemplated by theparties, warranting his discharge. A contraryconclusion likely would chill employers fromentering into last chance agreements to the det-riment of future employees.

The judgment of the Appellate Division isAFFIRMED.

JUSTICE LONG, dissenting, joined by JUS-TICES ZAZZALI and ALBIN, believes thatthe terms of the LCA were not ambiguous andrequired that petitioner enroll in an alcohol re-habilitation program within the suspension pe-riod, but did not require that he complete itwithin that time. She contends that becausepetitioner enrolled in a program within the sus-pension period, he therefore complied with theprovisions of the LCA and is entitled to a rem-edy.

(This syllabus is not part of the opinionof the Court. It has been prepared bythe Office of the Clerk for theconvenience of the reader. It has beenneither reviewed nor approved by theSupreme Court. Please note that, in theinterests of brevity, portions of anyopinion may not have beensummarized).

Supreme Court RescindsAppointments Based on SecurityBreach of Make-up ExaminationsIn the Matter of Police Sergeant(PM3776V) City of Paterson176 N.J. 49 (2003)

This appeal involves a civil serviceexamination administered by the Departmentof Personnel (DOP) for promotionalconsideration for nine sergeant positions in theCity of Paterson Police Department. The Courtconsiders whether the DOP’s practice ofadministering identical exams to original and

MSR 11:118

make-up candidates in the same testing cycleis a per se violation of a candidate’s stateconstitutional right to a fair and competitivecivil service examination. The Court furtherconsiders whether the make-up exams, asadministered, violate the State Constitutionwhen there is evidence that unknown personsdisseminated test questions and answersthroughout the Paterson Police Departmentimmediately following the original exam andbefore the make-up exam, but no evidence thatany make-up candidates had advanceknowledge of the test’s content. In October 1997, the DOP administered astatewide civil service promotional exam for theposition of police sergeant. A total of 182candidates from the City of Paterson PoliceDepartment took the exam. One hundredthirty-five of those candidates were successful.Petitioners, consisting of numerous candidatesfor the position, claimed that immediatelyfollowing the exam, candidates congregatedoutside of the testing area and discussed thecontent of the exam with one another. Inaddition, there was evidence that questionsappearing on the exam, along with answers tothem, were later typed out by some of thecandidates who sat for the exam and distributedthem within the police department.Furthermore, petitioners claimed that variousunidentified members of the police departmentdiscussed the October exam, making its content“common knowledge” throughout theDepartment prior to the administration of anymake-up exams. Shortly after the exam, petitioners filed apetition with the DOP requesting that itprohibit any candidate from taking a make-upexam for the October 1997 test, claiming thatthey had been disadvantaged by thedissemination of information contained on theexam. In support of their request, petitionersprovided the DOP with copies of a substantialportion of the questions and answers from theOctober 1997 exam as proof that exam securityhad been breached. The make-up examnevertheless was administered to three

candidates on different occasions after thecandidates signed a “Security Pledge” certifyingthat they had no knowledge of the contents ofthe original exam. In total, eight officers in the Paterson PoliceDepartment were promoted to sergeant: five outof the 135 candidates who passed the originalexam and three out of the three candidates whotook a make-up exam. In July 1998, petitionersfiled a petition with the DOP and the MeritSystem Board (Board) asserting that the DOP’spractice of administering identical exams tooriginal and make-up candidates violated theirright to a fair and competitive civil serviceexamination under the New JerseyConstitution. Petitioners also sought theremoval of two of the three successful make-upcandidates (Durkin and Catania), alleging thatthey had advance knowledge of the exam’scontent. Again, petitioners provided copies ofquestions and answers to the October 1997exam, which they found at roll call in thePaterson Police Department shortly after theoriginal exam but before the make-up exams. The Board rejected the petitioners’constitutional challenges to the DOP’s practiceof administering identical exams to original andmake-up candidates. Rather, the Board viewedthe practice as the only mechanism it had toprovide candidates with a fair and competitiveexamination and to provide the statisticallyvalid means to compare the performance of theoriginal candidates and the make-up candidatesfairly and accurately. The Board referred thepetitioners’ specific allegations against Durkinand Catania to the Office of Administrative Lawfor a hearing to determine whether they hadknowledge of the exam’s content prior to theirmake-up exams. In July 2000, an administrative law judgegranted Catania’s and Durkin’s motion forsummary judgment, concluding that there wasno evidence that they had advance knowledgeof the contents of the exam. Petitionersappealed the ALJ’s decision, and the Boardaffirmed in October 2000.

MSR 11:119

In an unreported per curiam opinion, theAppellate Division affirmed the Board’sdecision, rejecting petitioners’ general challengeto the DOP’s practice of using identicalquestions on original and make-up exams andaffirming the Board’s finding that there was noevidence to support the conclusion that theexam, as held, was unfair.

The Supreme Court granted the petitioners’petition for certification.

HELD: Although the Department ofPersonnel’s practice of administering identicalexams to original and make-up candidates inthe same testing cycle was not a per se violationof a candidate’s constitutional right to a fair andcompetitive civil service examination, in lightof the undisputed evidence of a breach insecurity following the original exam but beforethe administration of the make-up exam andthe DOP’s failure to make adjustments to themake-up exams to address that breach, themake-up exams as administered in Paterson,violated the New Jersey State Constitution.

1. The New Jersey Constitution and the NewJersey Civil Service Act require appointmentsand promotions in the civil service of the Stateto be based on considerations of merit andrelative knowledge, skill, and ability. Toimplement those constitutional and statutoryrequirements, the Legislature has vested theDOP, the Board, and the DOP Commissionerwith broad power to devise a fair, secure, merit-based testing process by which candidates areselected for employment and promotion. Amongother things, the Commissioner must providefor the security of the examination process andappropriate sanctions for breach of security.

2. In the past, the Court has sanctioned theDOP’s practice of reusing a substantial numberof exam questions from test to test, in identicalor similar form, recognizing that the DOP’sdecision to reuse exam questions was clearlywithin the range of responsibilities that the

Legislature has delegated to the DOP toimplement the most effective and efficientprocedure to assure public hiring and promotionbased on merit.

3. Noting its limited role in reviewing the DOP’sadministration of the civil-service system andits determination regarding civil-service testingprocesses, the Court declines to bar outright theDOP’s practice of administering identical examsin the same testing cycle.

4. To effectuate the goal of devising a fair,secure, merit-based testing process by whichcandidates are selected for employment andpromotion, the DOP Commissioner mustprovide for the security of the examinationprocess and appropriate sanctions for breach ofsecurity. To that end, the Board specificallyprohibits copying, recording, or transcribing anyexamination question or answer, and/or theremoval from any exam room of any questionsheet, answer sheet, notes, or other papers ormaterials related to the content of anexamination.

5. Other jurisdictions also have recognized theimportance of a fair, secure, and competitivecivil service examination process.

6. Although there is no evidence indicating thatany of the three make-up candidates had accessto exam materials prior to sitting for their make-up exams, it is undisputed that exam securitywas breached prior to the administration of themake-up exams. Once the DOP discovered thatbreach in exam security, the make-up examsshould have been cancelled and an appropriateremedy fashioned to ensure all candidates a fairand competitive exam. Its failure to do soundermined the integrity of the examinationprocess and impaired the candidates’ ability todemonstrate their relative merit and fitness.Thus, the make-up exams, as administered inPaterson, violated article VII, section 1,paragraph 2 of the State Constitution.

MSR 11:120

7. Although security can and must be improved,it may be that no procedural safeguards canprevent the type of irregularities that occurredin this appeal, where identical exams were givento both original and make-up candidates.Therefore, going forward, the DOP and theBoard should administer make-up exams thatcontain substantially different or entirelydifferent questions from those used in theoriginal examination. Moreover, examparticipants must honor their legal and ethicalobligations.

8. Since the Court is voiding the results of themake-up exam and thereby prohibiting anypermanent appointments to police sergeantfrom those candidates who sat for the make-upexams, three police sergeant positions, currentlyheld by Officers Catania, Durkin, and Mejia, areopen. Until a new annual exam is given, theCourt leaves to the discretion of the DOP thequestion of who, if anyone, should fill the opensergeant positions, as well as the procedures forthose appointments. This remedy is confinedto the October 1997 sergeant’s examadministered to the members of the PatersonPolice Department.

Judgment of the Appellate Division isAFFIRMED in part in respect of its holdingthat identical exams for original and make-upcandidates is not per se unconstitutional,REVERSED in part in respect of its holdingthat the make-up exams as administered werefair and competitive, and REMANDED forappropriate relief consistent with the Court’sdecision.

NOTE: On remand from the Court, the MeritSystem Board determined that the three Po-lice Sergeant positions vacated by OfficersCatania, Durkin and Mejia not be filled by per-manent appointments until the new Police Ser-geant eligible list promulgated in the Spring of2004. The Board found that, in this way, theseofficers would have as fair an opportunity asanyone else to compete for the vacated posi-tions. However, recognizing the City ofPaterson’s obligations to its citizens, the Boarddetermined that the City may continue to per-manently appoint candidates from the existingPolice Sergeant eligible list, so long as the threecourt-vacated positions are not permanentlyfilled until the new eligible list promulgates.The Board also noted that, if the City requiredthese specific positions to be filled, it could doso provisionally from the existing special re-employment or promotional list. See In the Mat-ter of Police Sergeant (PM3776), City of Pater-son (MSB, decided August 12, 2003).

As a result of the Court’s decision, on August19, 2003, Commissioner of Personnel Ida L.Castro signed an Order establishing a one-yearPilot Program, incorporating a new make-uppolicy for all public safety announcements. ThePilot Program is designed to address concernsregarding test security. A make-up examina-tion will no longer be identical to the test thatwas administered on the original test date.Rather, the make-up examination will matchthe content specifications of the original exami-nation as closely as possible. Additionally, themake-up examination will be administeredwhen the next regularly scheduled examina-tion for the title in question is administered.The examination will only be administered bythe DOP if the make-up candidate agrees toaccept the examination as a valid substitutefor the original examination. The candidate,however, may still challenge the answer key orthe validity of the actual test items. If a candi-date does not agree to take the alternate formof the examination and accept the content ofthat examination as appropriate, no make-uptest will be administered to that candidate.

MSR 11:121

the New Jersey Pretrial Intervention Program.N.J.S.A. 2C:43-12.

Significantly, Dillard failed to disclosethat on November 1, 1995 he had been arrestedon firearm possession charges in the State ofMaryland when he signed and filed hisemployment certification with the Departmentof Corrections on December 4, 1995. TheDepartment discovered Dillard’s falsification byfailure to report his Maryland arrest when, in1999, it conducted a criminal historybackground in connection with a domesticviolence incident involving a co-worker at SouthWoods State Prison. Dillard’s dismissal and thesubsequent proceedings as aforesaid thentranspired.

In his brief on appeal, Dillard contends:

POINT I

THE MERIT SYSTEM BOARDARBITRARILY ANDCAPRICIOUSLY INVALIDATED AREASONABLE SETTLEMENTAGREEMENT BETWEEN MR.DILLARD AND RESPONDENT.

POINT II

THE MERIT SYSTEM BOARD’SSUMMARY JUDGMENT WASIMPROPER BECAUSE IT DENIEDMR. DILLARD THE OPPORTUNITYTO PRESENT SCIENTIFIC DATAWHICH CREATED A GENUINEDISPUTED ISSUE OF FACT.

POINT III

THE ADMINISTRATIVE LAWJUDGE OMITS A CRUCIALFINDING OF FACT THAT MR.DILLARD “INTENTIONALLY”OMITTED INFORMATION FROMHIS APPLICATION.

Non-disclosure of Arrest RecordGrounds for RemovalIn the Matter of Anthony Dillard v. SouthWoods State Prison and the JuvenileJustice SystemA-4369-01T2 (App. Div. May 19, 2003)

Appellant, Anthony Dillard, wasdischarged effective May 24, 1999, by the NewJersey Department of Corrections as a seniorcorrections officer with the South Woods StatePrison on the grounds that he made anintentional misstatement of material fact on hisemployment application with the Departmentof Corrections, which he certified on December4, 1995. Dillard appealed his discharge and thematter was heard and considered by the Officeof Administrative Law. On December 5, 2001,the Administrative Law Judge (ALJ) filed hisinitial decision with the Merit System Boardrecommending and ordering Dillard’s removal“on charges of falsification involving an allegedintentional misstatement of material fact” inconnection with his application for employment.On April 8, 2002, the Merit System Board,having considered the ALJ’s initial decision andhaving made its own independent evaluation ofthe record, accepted and adopted the findingsof fact and conclusions contained in the ALJ’sinitial decision and determined that thedismissal of Dillard by the appointing authoritywas justified. Dillard’s appeal to the MeritSystem Board was dismissed and Dillard nowappeals to this court.

It appears that on September 1, 1995,Dillard was stopped while traveling on Route95 in Maryland by a state trooper and found tobe in possession of an automatic pistol in thetrunk of his car. The trooper transported Dillardto the local police barracks. Ultimately, but noton that day, Dillard was issued a summons forhis arrest and charged with a weapons violation.On March 3, 1996, Dillard, after having initiallypleaded not guilty, was nevertheless placed onunsupervised probation before final judgmentby a Maryland District Court judge on aprocedure that appears somewhat analogous to

MSR 11:122

evidential persuasiveness of relevantproofs…. We do not weigh the evidence,determine the credibility of thewitnesses, draw inferences andconclusions from the evidence or resolveconflicts therein. Issues of credibilityare for the fact triers. Morever, shouldthere be substantial evidence in therecord to support more than one result,it is the agency’s choice which governs.

[Jamison v. RockawayTownship Bd. of Educ., 242N.J. Super. 436, 448 (App.Div. 1990) (citation omitted)].

Based upon our thorough review of therecord, we are satisfied that the ALJ’s findingsand conclusion as well as the independentevaluation by the Merit System Board couldhave been reasonably reached in light of therecord taken as a whole. Close v. KordulakBros., 44 N.J. 589, 599 (1965).

Affirmed.

POINT IV

THE EXTRAORDINARY FACTSAND CIRCUMSTANCES OF THEMARYLAND INCIDENT QUALIFYMR. DILLARD FOR PROGRESSIVEDISCIPLINE.

We have considered these contentionsand all supporting arguments advanced byDillard and find they are without merit. R. 2:11-3(e)(1)(E). We briefly note, as observed by theMerit System Board, that Dillard, as a memberof the law enforcement community, is held to ahigher standard of conduct than that of otherpublic employees. Dillard’s dishonesty cannotbe safely tolerated by the correction system. SeeTownship of Moorestown v. Armstrong, 89 N.J.Super. 560, 566 (App. Div. 1965), cert. denied,47 N.J. 80 (1966).

Whether or not the Maryland automobilestop was the result of racial profiling as Dillardsought to prove does not create a genuinedisputed issue of fact because such circumstancedid not excuse Dillard from disclosing that hehad been arrested.

Likewise, the further fact that the MeritSystem Board rejected an alleged settlementagreement with the Department of Correctionswhich would have permitted Dillard to resignin good standing and transfer to the JuvenileJustice Commission was not improper. Therewas no proof that the Juvenile JusticeCommission nor any subordinate thereof hadauthority to consent to Dillard’s transfer hadbeen a party to the alleged settlementagreement.

Our role in review of an agency headdecision is carefully circumscribed. Thatrole is to survey the record to determinewhether there is sufficient competent,credible evidence to support the agencydecision…. It is not our function tosubstitute our judgment for that of theagency where there may exist adifference of opinion concerning the

MSR 11:123

Court Agrees with Board’sInterpretation of 45-day RuleIn the Matter of Joseph McCormick v.Lawrence TownshipA-2811-01T3 (App. Div. April 23, 2003)

Appellant Joseph McCormick appealsfrom a final determination of the Merit SystemBoard dated December 27, 2001, finding thathe violated numerous departmental rules andregulations by failing to properly investigate amissing persons complaint involving apotentially suicidal young woman. The Boardupheld the ten-day suspension imposed by theappointing authority, Lawrence Township. Onappeal, appellant essentially contends the Boarderred in failing to dismiss the charges pursuantto N.J.S.A. 40:14-147. We disagree and affirm.

The undisputed facts are these.Appellant is a police officer for LawrenceTownship. On December 2, 1999, atapproximately 4:30 p.m., TM reported toappellant the disappearance of her daughterfrom her psychiatrist’s office about ten minutesprior. She explained that her daughter wasbeing treated for depression. Appellant notifiedthe police dispatcher of the report and initiateda search in his patrol car of the local roads. Hethen went to the doctor’s office, spoke with thedoctor, and checked the path behind the office.He abandoned the search in that area when heobserved two large, unfriendly dogs. Appellantcalled police headquarters about the status ofthe case and started to prepare a missingperson’s report. He completed the paper work,responded to another incident, and then tookhis meal break from 7:09 to 7:46 p.m. He tookno other action to pursue the search for themissing person and completed his tour of dutyat 11:00 p.m.

The next day, December 3, 1999,Lieutenant Mark Boyd learned of the incidentand realized that reports on the incident wereincomplete. It also appeared that no search hadbeen conducted by investigating officers,

appellant, Sergeant Gerasimowicz, andSergeant David Buxton. Lieutenant Boydnotified Captain Posluszny and undertook anintensive search for the missing person. Theyoung woman was found later that day inrelatively good health.

Captain Posluszny conducted aninvestigation into these events on December 8,1999. He read the reports on the incident andspoke to Lieutenant Boyd and SergeantGerasimowicz. On December 14, 1999, CaptainPosluszny filed a report of his investigation andconcluded that General Order No. 94-2 andthree Lawrence Township Rules andRegulations were not followed. However, he didnot specify which officer violated which rules.Regarding appellant, Captain Posluszny stated:

3. McCormick’s report had noinvestigation. No follow up wascompleted such as checking the area,checking with friends, her residence,etc. In addition, the report was notcompleted at the end of shift. Thiscould have allowed Lieutenant Boyd toobtain more information in a timelymanner.4. No superior officer was contacted.This needed to be completed so that adetective could be assigned as well askeeping superiors informed.6. Officer McCormick received theinitial call for the missing person at1628 hrs, 12/2/99. A true search of thearea was not conducted until themorning of 12/3/99, approximately 16hours after being reported missing.This is unacceptable.

Captain Posluszny found that only appellantwas assigned to the missing personinvestigation, and he was listed at the scenefrom 1628 hours until 1754 hours. CaptainPosluszny recommended an internal affairsinvestigation of the matter.

Captain Thomas Weber, who was theActing Police Chief in December 1999 and early

MSR 11:124

matter to determine whether disciplinarycharges are necessary and appropriate. The factthat such normal and necessary investigationmay span a period of time, which may exceed45 days, does not automatically call for thedismissal of such charges. Rather, for thepurposes of N.J.S.A. 40A:14-147, the chargesmust be brought within 45 days of the “personfiling the complaint” obtaining sufficientinformation to bring such charges. The “personfiling the complaint” is generally acknowledgedto the Chief of Police. See N.J.S.A. 40A:14-118.Therefore, the 45 days start when the Chief ofPolice has sufficient knowledge to bring thecharges against an officer. However, the Boarddoes not interpret this provision to allow anappointing authority to unnecessarily delay thebringing of charges by not promptly attemptingto obtain sufficient information to bring chargesand promptly forwarding such information tothe person responsible for filing the complaint.Under such circumstances, it would beappropriate to dismiss charges against a policeofficer based on the 45-day rule. Conversely,the statute is undoubtedly not designed to forcean appointing authority, at the risk of beingestopped, to prospectively bring ultimatelyvalid, but unripe, disciplinary charges within45 days of an incident without properlyinvestigating the matter to ensure thatsufficient information to bring such charges isobtained.

In this case, the record shows that whilepossible Boyd, on December 3, 1999, andPosluszny, on December 14, 1999, hadknowledge that departmental rules hadbeen violated, they had not specificallyidentified which individuals should becharged with which violations.Additionally, it is clear that Boyd didnot do an investigation into the matterand while Posluszny did aninvestigation, it was preliminary innature and did not include interviewsor other necessary detail. Moreover,

January 2000, received Captain Posluszny’sreport on December 20, 1999, and on January4, 2000, assigned Lieutenant Joseph Prettyman,an Internal Affairs officer, to conduct aninvestigation. After conducting hisinvestigation, Lieutenant Prettyman concludedthat appellant, Sergeant Gerasimowicz, andSergeant Buxton were inattentive andneglectful of duty. In his February 11, 2000report, Lieutenant Prettyman concluded that:

[Appellant] failed to conduct hisinvestigation in accordance withGeneral Order No. 94-2 and with theAttorney General’s Guidelines onmissing persons. [Appellant] failed toprovide correct service, was inattentiveto duty and was neglectful of duty.[Appellant’s] actions were not consistentwith the required provisions of GeneralOrder No. 94-2.

On February 17, 2000, Chief John Prettyman,who had returned to duty, issued a PreliminaryNotice of Disciplinary Action against appellant.Following a local hearing, the Township Mangersustained the charges and suspended appellantfor ten days. Appellant appealed, and a de novohearing was held before an Administrative LawJudge (ALJ). The ALJ concluded that appellantviolated General Order No. 94-2 governingmissing persons investigations, but dismissedthe charges because they were not filed withinthe forty five day requirement contained inN.J.S.A. 40A:14-147.

The Township filed exceptions. OnDecember 27, 2001, the Board rejected the ALJ’sfinding that the complaint was not timely filed.The Board explained:

N.J.S.A. 40A:14-147 is designed toprotect police officers from an appointingauthority unduly and prejudiciallydelaying the imposition of disciplinaryaction. However, the statute does notprohibit an appointing authority fromdoing a proper investigation into a

MSR 11:125

neither individual was in a position tobring disciplinary charges against theappellant. Further, when Weberreceived Posluszny’s report and requestfor an IA investigation on December 20,1999, he was Acting Chief and had theauthority to bring charges.Nevertheless, he determined that therewas insufficient information to do so,ordered a full IA investigation into thematter and assigned the matter toLieutenant Prettyman, who testifiedthat he believed that there wasinsufficient information at that junctureto specifically bring charges. The Boardfinds no reason to doubt Weber’sjudgment in this matter calling for anin-depth IA investigation upon receiptof this information. The record clearlyshows that a further detailedinvestigation into the incident wasnecessary to determine the culpabilityof the officers involved. Thisinvestigation included many interviewsand produced a detailed report includingspecific recommendations for chargesagainst specific officers. Upon receiptof the report on February 11, 2000,Weber, no longer Acting Police Chief,forwarded the report to Police ChiefPrettyman, who promptly broughtcharges against the appellant onFebruary 17, 2000. Based on these facts,there is no evidence that the appointingauthority unduly delayed in conductingits investigation, or that the chronologyof the events leading to the charges weresomehow a ruse to delay the matter andprejudice the appellant. Accordingly,the Board finds that the appointingauthority did not violate the 45-day rulein bringing the charges against theappellant.

We are satisfied from our study of the recordand the arguments presented that there issubstantial credible evidence in the record to

support the Board’s final determination. In reTaylor, 158 N.J. 644, 656 (1999). Thearguments raised by appellant are withoutmerit, not warranting discussion in a writtenopinion. R. 2:11-3(e)(1)(D) and (E). We add onlythat we are in substantial agreement with thebases for decision articulated by the Board inits written decision and order dated December27, 2001. N.J.S.A. 40A:14-147 provides that thecomplaint must be filed “no later than the 45th

day after the date on which the person filingthe complaint obtained sufficient informationto file the matter.” The investigation of thecharges was undertaken in a timely fashion. Wefind no fault in the effort of the authority to fullyinvestigate the charges before filing a complaint.Chief Prettyman, the person filing thecomplaint, had sufficient information to file thecomplaint on February 11, 2000, and filed thecomplaint against appellant on February 17,2000, clearly within the forty-five day time limit.

Affirmed.

MSR 11:126

Constitution.The preferences, originally granted by L.

1938, c. 131, and later reworded withoutsubstantial change by L. 1971, c. 197, § 1, arenow codified in N.J.S.A. 40A:14-42 through 14-45, which read as follows:

In any municipality where there is avolunteer fire company or force,maintained and controlled by themunicipality, having no paid fireman andthereafter a paid position therein iscreated or established by the governingbody of said municipality, such positionshall be filled by a member of thevolunteer fire company or force who shallhave served as an active fireman for atleast 2 years next preceding saidappointment or by an exempt fireman ofthe company or force. If no such memberor exempt fireman is available for suchappointment, the appointment may bemade to any qualified person. Saidappointee shall not be under 21 or over40 years of age at the time of theappointment.

[N.J.S.A. 40A:14-42 (emphasisadded).]In any municipality where there is avolunteer fire company or force,maintained and controlled by themunicipality, and the governing body ofthe municipality, by ordinance, shallprovide for the establishment of a paidfire department, the appointmentsthereto shall be made from the membersof the volunteer fire company or force whoshall have served as active firemen for atleast 2 years next preceding saidappointment or from among the exemptfiremen of the company or force. If nosuch member or exempt fireman isavailable for such appointment, anyqualified person may be appointedthereto. Said appointees shall not beunder 21 or over 40 years of age at the

Court Overturns Absolute VolunteerFirefighter PreferanceIn the Matter of Richard Dreyer, II, andJames Hammond, Firefighters356 N.J. Super 159 (App. Div. 2002)

This case concerns the appointment offirefighters to a paid fire department in amunicipality that also has a volunteer firecompany or force. Statutory preferences forappointment to the paid department are grantedto members of such a municipality’s volunteerfire company. The question to be resolved isthe precise nature of the preferences.

The case comes to us on appeal from adetermination of the Merit System Board(“Board”). Our task is to review the Board’sinterpretation of the applicable legislation.Since we believe the Board’s interpretation isplainly unreasonable, we reverse.

The dispute arose after a 1994 civilservice examination for the appointment of paidfirefighters in the City of Asbury Park. Theindividual parties all satisfy the statutoryqualifications for appointment. Appellants,James Hammond and Richard Dreyer, II, whowere not members of Asbury Park’s volunteerfire company, placed substantially higher on theappointment list than Garrett M. Giberson, whohad served as a volunteer firefighter in the citysince 1991. All three were appointed, butGiberson, who placed thirty-fourth, was givenseniority over Hammond and Dreyer, whoplaced third and fifth, respectively.

Although Hammond and Dreyer are onlyconcerned with seniority, the importance ofwhich is not denied by Asbury Park or theBoard, we recognize that our resolution of thiscase will also adversely affect the opportunityof volunteer firefighters to gain appointment totheir municipality’s paid fire companies. Ourinterpretation of the legislation, however, doesnot eliminate entirely a volunteer’s advantage;rather, it enforces the preferences granted tovolunteers by the Legislature in a mannerconsistent with the goals of our civil service lawsand Article VII, § 1, ¶ 2 of the New Jersey

MSR 11:127

time of the appointment.

[N.J.S.A. 40A:14-43 (emphasisadded).]

In any municipality where there is avolunteer fire company or force,maintained and controlled by themunicipality and a part-paid firedepartment composed of both paid andvolunteer firemen, any appointment tosuch part-paid fire department shall bemade from the members of the volunteerfire company or force, who shall haveserved as active firemen for at least 2years next preceding such appointmentor from among the exempt firemen of thecompany or force. If no such member orexempt fireman is available for suchappointment, any qualified person maybe appointed thereto. Said appointeesshall not be under 21 or over 40 years ofage at the time of the appointment.

[N.J.S.A. 40A:14-44 (emphasisadded).]In any municipality where anexamination is scheduled to determineappointments to the paid or part-paid firedepartment and force, any qualifiedfireman having served in the volunteerfire company or force of the municipalityfor at least 2 years next preceding suchappointment shall be entitled, in additionto his earned rating, to service credits ofnot less than 3 nor more than 10 pointsas may be determined by the governingbody of the municipality or the authorityin charge. Said appointee shall be over21 but not more than 40 years of age atthe time of the appointment.

Nothing herein contained shall establisha preference over a paid firemantemporarily dismissed or on leave ofabsence for reasons of economy, or theappointment of a paid fireman to asuperior position at the time of promotion

in said fire department or force.

[N.J.S.A. 40A:14-45 (emphasisadded).]

The only legislative history is a“Statement” for the 1938 law, whichreads as follows:The purpose of this act is to provide forappointments to paid fire departmentsfrom the membership of volunteer firecompanies in those municipalities inwhich volunteer fire companies ordepartments [are] in existence.

[Statement to L. 1938, c. 131.]

The first three sections provide the samepreference to volunteer firefighters who arebetween twenty-one and forty years old:appointments to a paid position must be madefrom those members of their force who shallhave served as active firefighters for at leasttwo years before the date of appointment. Weconclude that those sections governappointments in non-civil service communities.The fourth section, N.J.S.A. 40A:14-45, governsappointments in civil service communities thathave paid or part-paid fire departments and avolunteer force. Unlike the first three sections,which grant volunteers an absolute preference,it grants credits based on years of voluntaryservice. 1

1The service credits are more specifically explained in N.J.A.C.4A:4-2.15(g), which reads as follows:

When a municipality has a volunteer fire company and paid positionsare created, any volunteer firefighter who has actively served for atleast two years is entitled to service credits in addition to his or herearned examination score. The highest possible score for examinationperformance shall be 90 percent to which the service credit shall beadded. Service credits shall be not less than three nor more than 10,and shall be added only to a passing score. The service credit shall becalculated by adding one point to the number of years of service: forexample, add three points for two years of service, four points for threeyears of service, and so on. Any service time in excess of nine yearsshall be awarded the 10 point maximum.

MSR 11:128

fire departments of municipalities whichhave both volunteer fire companies andpart-paid fire departments.

There is no evidence that the Board haspreviously been called on to interpret therelevant legislation on the point at issue.Consequently, we cannot be guided by theprinciple that in reviewing an agency’sinterpretation of its governing statutes “resortmay be had to long usage and practicalinterpretation . . . to explain a doubtful phraseor to illuminate any obscurity.” Lane v.Holderman, 23 N.J. 304, 322 (1957). Althoughwe generally defer to an administrative agency’sinterpretation of its governing legislation,deference stops when the interpretation is“plainly unreasonable.” Merin v. Maglaki, 126N.J. 430, 437 (1992). Moreover, “[a]n appellatetribunal is . . . in no way bound by the agency’sinterpretation of a statute . . . .” Mayflower Sec.v. Bureau of Sec., 64 N.J. 85, 93 (1973).

Despite the Board’s contrary suggestion,all four statutory sections unquestionablyconcern municipalities that have volunteer firecompanies and paid positions to be filled. Theonly substantial difference among the first threesections, as noted above, is that section 42 dealswith creation of a paid position on an otherwisevoluntary force, while sections 43 and 44address, respectively, appointments to paid andpart-paid fire companies. While the first threesections express an unqualified preference,indeed mandate, for appointments from thevoluntary force, the language of section 45 is noless unqualified; it requires that volunteers onlyget service credits “[i]n any municipality wherean examination is scheduled . . . .” N.J.S.A.40A:14-45. No one suggests that this is areference to anything other than examinationsconducted under the Civil Service Act, N.J.S.A.11A:1-1 to 12-6.

Municipalities may choose whether theywish to be governed by the Civil Service Act.N.J.S.A. 11A:9-1 to -10. Section 45 plainlyprovides the methodology for giving preferencesto volunteer firefighters among themselves and

All four sections address municipalitieswhere a volunteer fire company or departmentexists and is supervised by the municipality.There is no difference in meaning between thephrase which appears in the first three sections“a volunteer fire company or force, maintainedand controlled by the municipality” and thephrase in section 45, “the volunteer fire companyor force of the municipality.” The onlysubstantial difference among the first threesections is that section 42 concerns appointmentto a paid position by a municipality whichpreviously had no paid positions in its firecompany, while section 43 concernsappointments when a municipality creates orhas a paid fire department, and section 44concerns appointments when a municipality hasa part-paid department.

The Board interpreted the legislation tomean that volunteer firefighters in a civil servicecommunity were always entitled to an absolutepreference over non-volunteers who had placedhigher on the civil service examination. In itsview, the credits for years of service establishedby section 45 would only come in to play indistinguishing among volunteers who hadapplied for appointment on the paid force. Theentirety of the Board’s reasoning was this:

Regarding appellants’ contention thatN.J.S.A. 40A:14-45 is the proper statutebecause an examination wasadministered, it is noted that there isnothing in the language of N.J.S.A.40A:14-44 which would limit itsoperation in the case of an appointmentto a part-paid fire department of amunicipality meeting the requirementsof the statute. The operative languageof N.J.S.A. 40A:14-44 is unqualified andas such it pertains to: “any appointmentsto such part-paid fire department.”Whereas N.J.S.A. 40A:14-45 appliesgenerally to appointments to paid orpart-paid fire departments or forces,N.J.S.A. 40A:14-44 applies morenarrowly to appointments to part-paid

MSR 11:129

against non-volunteers in municipalities whichhave chosen that course. Sections 42 through44, on the other hand, set the policy for non-civil service municipalities. Implicit in theBoard’s interpretation of section 45 is that itspreferences are to be used solely for determiningthe rating of volunteer firefighters amongthemselves, but nothing in the wording of thatsection supports that view. Furthermore, if thathad been the Legislature’s intent one wouldexpect that the credits for years served wouldhave been made applicable to non-civil servicemunicipalities, and yet nothing in the languageof the statute would justify that interpretation.

The Board’s brief argues that ourinterpretation “would have the anomalousresult of penalizing volunteer [firefighters] inall municipalities covered by the Civil ServiceAct.” But that is not true. We have simplyenforced the legislative determination thatvolunteers in non-civil service municipalitieswill have a mandatory advantage over non-volunteers, while in civil service municipalitiestheir advantage will be limited to the servicecredits provided by law.

The Board’s brief also suggests that nopolicy reason exists which would justify thedistinction we draw. In our view the policyreason is expressed by the Civil Service Act,which declares that “the public policy of thisState [is] to select and advance employees onthe basis of their relative knowledge, skills andabilities.” N.J.S.A. 11A:1-2(a). Moreover,although the legislation at issue was initiallyenacted in 1938, it was re-enacted in 1971without substantial change. By then the peopleof this state had expressed their view on theimportance and nature of civil service in theconstitution:

Appointments and promotions in the civilservice of the State, and of such politicalsubdivisions as may be provided by law,shall be made according to merit andfitness to be ascertained, as far aspracticable, by examination, which, as faras practicable, shall be competitive;except that preferences in appointments

by reason of active service in any branchof the military or naval forces of theUnited States in time of war may beprovided by law.

[N.J. Const., art. VII, § 1, ¶ 2.]

The parties have not briefed the questionof whether the preferences authorized by thelegislation under review run afoul of thatprovision of our constitution. Consequently, wedeem it best to avoid comment. However, itseems obvious that our construction of thelegislation, rather than the Board’s, best servesthe constitutional principles embraced by thepeople of this state because it maximizes thecircumstances in which merit, fairly tested, willprevail.

Asbury Park concedes that the servicecredits to which Giberson is entitled undersection 45 are insufficient to advance him overappellants. Therefore, we reverse and remandfor entry of an administrative order directingthat Hammond and Dreyer have seniority overGiberson in the Asbury Park Fire Department.

Reversed and remanded for furtherproceedings consistent with this opinion.

MSR 11:130

Phyllis L. AliNicholas F. AngiuloA. Peter BooneElaine M. DundalaRebecca EvansTimothy M. GriscomElizabeth A. Napolitano

The Merit System Reporteris published semi-annually by the New Jersey Department of Personnel.

Marjorie A. SchwartzActing Commissioner

Department of Personnel

Henry MaurerEditor-in-Chief

Editorial and Production Staff

New Jersey Department of PersonnelDivision of Merit System Practices and Labor Relations

P. O. Box 312Trenton, New Jersey 08625-0312

www.state.nj.us/personnel

Elizabeth J. RosenthalJanet HoeslyKelly SoltysErnie GuiaDulce Sulti-VillamorElizabeth WoodDon Pappano

M S RState of New JerseyDepartment of PersonnelDivision of Merit System Practices and Labor RelationsP O Box 312Trenton, New Jersey 08625-0312

MERIT SYSTEM REPORTER....................................................................A digest of notable Merit System decisions

PRESORTEDSTANDARD

U.S. POSTAGE PAIDTrenton, N JPermit # 21