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                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-2268-18T1

IN THE MATTER OF CRAIG
G. HOWLETT, POLICE SERGEANT
(PM0721P), AND LORI A. SOARES,
POLICE CAPTAIN, (PM1255T),
BOROUGH OF ROSELLE.
_______________________________

                Argued telephonically April 21, 2020 –
                Decided May 15, 2020

                Before Judges Yannotti, Currier and Firko.

                On appeal from the New Jersey Civil Service
                Commission, Docket Nos. 2019-687 and 2019-688.

                Robert K. Chewning argued the cause for appellants
                Craig G. Howlett and Lori A. Soares (Mc Laughlin &
                Nardi, LLC, attorneys; Maurice W. Mc Laughlin and
                Robert K. Chewning, on the briefs).

                Douglas S. Zucker argued the cause for respondent
                Borough of Roselle (Weiner Law Group LLP,
                attorneys; Douglas S. Zucker, of counsel and on the
                brief; Dustin F. Glass, on the brief).

                Steven Michael Gleeson, Deputy Attorney General,
                argued the cause for respondent Civil Service
                Commission (Gurbir S. Grewal, Attorney General,
                attorney; Sookie Bae, Assistant Attorney General, of
            counsel; Steven Michael Gleeson, Deputy Attorney
            General, on the brief).

PER CURIAM

      Craig G. Howlett and Lori A. Soares appeal from a final decision of the

Civil Service Commission (CSC) dated December 21, 2018, which found that

the Borough of Roselle (Borough) did not abuse its discretion in bypassing

Howlett for promotion to the position of Sergeant on PL170170 and Soares for

promotion to the position of Lieutenant on PL170171. We affirm.

                                         I.

      In 2006, Howlett began his employment as an officer in the Borough's

police force. He was later certified as eligible for promotion to the position of

Sergeant but bypassed in November 2014 (PL140948), June 2015 (PL150368),

September 2015 (PL150832), and November 2016 (PL161246). Howlett again

applied for promotion to the position of Sergeant and in February 2017, he

ranked first on the certified eligibility list (PL170170).

      In March 2017, as part of the Borough's promotional process, the three

members of the Borough's Public Safety Committee (PSC) interviewed four

candidates for the position of Sergeant: Howlett, William D. Lord (who ranked

second), Carmen Olivera-Barnes (ranked third), and Victor Conti (ranked

fourth).   Lord and Olivera-Barnes each received total scores of 136, and

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                                         2
Howlett's score was 115. The Borough bypassed Howlett and promoted Lord

and Olivera-Barnes.

      In 1994, Soares began her employment as a police officer in the Borough.

Soares was certified as eligible for promotion to the position of Lieutenant, but

she was bypassed in November 2016 (PL161247). In February 2017, Soares

was ranked second on the certified eligibility list (PL170171).

      In March 2017, the three members of the Borough's PSC interviewed

Soares, Michael Cyktor (ranked first), Brian Brennan (ranked third), and

Michael Sojka (ranked fourth). Chief of Police Gerald J. Orlando recommended

Soares and Cyktor for promotion. Cyktor received a total score of 140, Brennan

138, Soares 131, and Sojka 128. The Borough bypassed Soares and promoted

Cyktor and Brennan.

      In April 2017, Howlett filed an administrative appeal with the CSC

challenging the Borough's decision to bypass him for promotion regarding

PL161246 and PL170170. Soares also filed an appeal in April 2017. She

challenged the Borough's decision to bypass her for promotion regarding

PL161247 and PL170171. The parties submitted position papers to the CSC in

support of their respective appeals.




                                                                         A-2268-18T1
                                       3
      Howlett and Soares contended that the PSC's interview process was

inconsistent, undefined, and random, and that the Borough did not have

legitimate reasons for bypassing them for promotion. The Borough asserted,

however, that Howlett's appeal regarding PL161246 and Soares's appeal

regarding PL161247 were untimely and should not be considered. The Borough

also asserted that it correctly applied the applicable civil service rules in

bypassing Howlett and Soares, and properly based those decisions on the scoring

of the candidates in the PSC's interview process.

      While the administrative appeals were pending, Orlando wrote to the CSC

and recommended that Howlett and Soares be promoted to the positions they

were seeking. Orlando stated that the Borough implemented the interview

process to circumvent the civil service eligibility list and select candidates who

are "politically connected in various ways[,]" specifically monetary donations

and relationships with local politicians. He said the individuals promoted ahead

of Howlett and Soares "are fine officers" but there was no reason to bypass

Howlett or Soares, "who have impeccable service records."

      The CSC issued letters to Howlett and Soares dated January 9, 2018. The

CSC found that Howlett's appeal regarding PL161246 and Soares's appeal

regarding PL161247 were untimely and would not be considered. The CSC then


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                                        4
addressed the appeals regarding PL170170 and PL170171, and noted that

effective November 13, 2017, Howlett was promoted to the position of Sergeant

and Soares was promoted to the position of Lieutenant.

      The CSC found, however, that the Borough had provided legitimate

reasons for bypassing Howlett and Soares for promotion earlier. The CSC stated

that an appointing authority has the discretion to choose the method of selecting

persons for promotion and, in the exercise of that discretion, could choose to

interview candidates and rank their performance in the interviews.

      The CSC noted that Howlett and Soares were asked the same questions as

the other candidates for promotion. It stated that, while Howlett and Soares may

have ranked higher on the respective eligibility lists, neither had a vested interest

in promotion to the positions they were seeking.

      Howlett and Soares then appealed to this court.1 In September 2018, we

entered orders in both appeals granting motions by the CSC to remand the

matters for further review. We did not retain jurisdiction.

      The CSC thereafter consolidated the administrative appeals and issued its

final decision on December 21, 2018. The CSC stated that although Howlett



1
  Howlett's appeal was docketed under A-2773-17 and Soares's appeal was
docketed under A-2776-17.
                                                                             A-2268-18T1
                                         5
and Soares were promoted to the positions they were seeking, their appeals of

the bypasses on PL170170 and PL170171 were not moot. The CSC noted that

if the prior bypass decisions were improper, Howlett and Soares would be

entitled to retroactive relief.

      Therefore, the CSC addressed the merits of the appeals. The CSC stated

that under the so-called "Rule of Three," an appointing authority has the

discretion to select any one of the top three eligible persons on a promotion list,

so long as no veteran heads the list. The bypassed candidate has the initial

burden of presenting a prima facie case that the bypass was the result of

discrimination, retaliation, or otherwise improper.

      The appointing authority then has the burden to articulate a legitimate,

non-discriminatory, or non-retaliatory reason for the decision. The candidate

may still prevail if he or she establishes that the appointing authority's proffered

reasons are pretextual or the improper reasons were the more likely motivations

for the decision. The appointing authority then must prove the adverse action

would have been taken regardless of any discriminatory or retaliatory motives.

      The CSC found that neither Howlett nor Soares had shown that the

Borough abused its discretion in bypassing Howlett on PL170170 and Soares on

PL170171. The CSC found that the Borough properly based its bypass decisions


                                                                            A-2268-18T1
                                         6
on the scoring of the eligible candidates during the interview process, which has

been in place since 2014.

      The CSC noted that the members of the Borough's PSC asked all of the

eligible candidates the same preset interview questions and scored each response

on a scale of one to five. The PSC also added five points to the scores of any

candidate recommended by the Chief of Police, and the persons with the highest

scores were selected for promotion.

      The CSC found there was no evidence the Borough's bypass decisions

were due to invidious reasons, or a lower-ranked eligible candidate was selected

based on political considerations.    The CSC concluded that the Borough's

decisions to bypass Howlett and Soares for the promotions were proper. This

appeal followed.

                                       II.

      On appeal, Howlett and Soares argue: (1) the CSC should have referred

the appeals to the Office of Administrative Law (OAL) for an evidentiary

hearing before an Administrative Law Judge (ALJ) because material facts were

in dispute; and (2) the Borough's reasons for bypassing Howlett on PL170170

and Soares on PL170171 were unlawful, arbitrary and capricious.




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      An appellate court has "a limited role" in the review of administrative

agency decisions. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980).

Therefore, an appellate court may only reverse an agency's decision where it

finds that the decision is "arbitrary, capricious or unreasonable or . . . not

supported by substantial credible evidence in the record as a whole." Id. at 579-

80 (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

      In determining if an agency's decision is arbitrary, capricious or

unreasonable, we consider:

            (1) whether the agency's action violates express or
            implied legislative policies, that is, did the agency
            follow the law; (2) whether the record contains
            substantial evidence to support the findings on which
            the agency based its action; and (3) whether in applying
            the legislative policies to the facts, the agency clearly
            erred in reaching a conclusion that could not reasonably
            have been made on a showing of the relevant factors.

            [In re Carter, 191 N.J. 474, 482-83 (2007) (quoting
            Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

      We "may not substitute [our] own judgment for the agency's even though

[we] might have reached a different result . . . ." Id. at 483 (quoting Greenwood

v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). "This is particularly

true when the issue under review is directed to the agency's special 'expertise




                                                                         A-2268-18T1
                                       8
and superior knowledge of a particular field.'" In re Stallworth, 208 N.J. 182,

195 (2011) (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).

      The    New    Jersey   Constitution    provides   in   pertinent     part   that

"[a]ppointments and promotions in the civil service of the State, and of such

political subdivisions as may be provided by law, shall be made according to

merit and fitness to be ascertained, as far as practicable, by examination, which,

as far as practicable, shall be competitive." In re Foglio, 207 N.J. 38, 43-44

(2011) (quoting N.J. Const. art. VII, § 1, ¶ 2).

      The Civil Service Act (CSA), N.J.S.A. 11A:1-1 to 12-6, and regulations

promulgated pursuant to the CSA, implement the policies underlying this

constitutional provision. Id. at 44 (citing N.J.S.A. 11A:2-6(d)). The CSA and

the regulations generally provide for merit-based appointments to positions in

the civil service. Ibid.

      If there is a vacancy in a civil service position for which an examination

is required, the CSA "provides for an examination process."              Ibid. (citing

N.J.S.A. 11A:4-2).         "When an examination is announced, minimum

qualifications for the position must be posted." Ibid. (citing N.J.A.C. 4A:4-2.1).

"After the examination, an eligible list is published ranking all passing




                                                                              A-2268-18T1
                                         9
candidates by score, with special ranking rules for veterans and for tie scores."

Ibid. (citing N.J.A.C. 4A:4-3.2).

      If "an appointing authority requests a list of candidates for a vacant

position, the [Commissioner of Personnel] will issue a certification 'containing

the names and addresses of the eligibles with the highest rankings on the

appropriate list.'" Ibid. (citing N.J.A.C. 4A:4-4.2(a)). "A complete certification

consists of 'three interested eligibles for the first permanent appointment, and

the name of one additional interested eligible for each additional permanent

appointment.'" Ibid. (quoting N.J.A.C. 4A:4-4.2(c)(2)).

      "The Rule of Three . . . governs the hiring discretion of the appointing

authority[ and] 'permits an appointing authority to select one of the three highest

scoring candidates from an open competitive examination.'" Id. at 45 (quoting

Local 518, N.J. State Motor Vehicle Emps. Union v. Div. of Motor Vehicles,

262 N.J. Super. 598, 603 (App. Div. 1993)). In its present form, the Rule of

Three states:

                   The commissioner shall certify the three eligibles
            who have received the highest ranking on an open
            competitive or promotional list against the first
            provisional or vacancy. For each additional provisional
            or vacancy against whom a certification is issued at that
            time, the commissioner shall certify the next ranked
            eligible. If more than one eligible has the same score,
            the tie shall not be broken and they shall have the same

                                                                           A-2268-18T1
                                       10
            rank. If three or more eligibles can be certified as the
            result of the ranking without resorting to all three
            highest scores, only those eligibles shall be so certified.

                   A certification that contains the names of at least
            three interested eligibles shall be complete and a
            regular appointment shall be made from among those
            eligibles. An eligible on an incomplete list shall be
            entitled to a provisional appointment if a permanent
            appointment is not made.

                  Eligibles on any type of reemployment list shall
            be certified and appointed in the order of their ranking
            and the certification shall not be considered incomplete.

            [N.J.S.A. 11A:4-8.]

      After the Commissioner certifies the list of three eligible candidates, the

appointing authority has the discretion to choose among the candidates to fill

the vacancy. Foglio, 207 N.J. at 45 (citing N.J.S.A. 11A:4-8). "The [R]ule of

[T]hree recognizes employment discretion and seeks to ensure that such

discretion is not exercised in a way inconsistent with 'merit' considerations."

Terry v. Mercer Cty. Bd. of Chosen Freeholders, 86 N.J. 141, 149-50 (1981).

      After the appointing authority selects a candidate for appointment to a

vacancy, it must file a report with the Department of Personnel (DOP)

explaining its decision. Foglio, 207 N.J. at 46 (citing N.J.A.C. 4A:4-4.8(b)).

When the appointing authority bypasses a higher-ranked candidate, it must

provide the DOP with a "statement of reasons why the appointee was selected

                                                                          A-2268-18T1
                                       11
instead of a higher ranked eligible . . . ."      Ibid. (quoting N.J.A.C. 4A:4-

4.8(b)(4)). "[T]he appointing authority retains discretion to bypass a higher-

ranked candidate 'for any legitimate reason based upon the candidate's merit.'"

Id. at 47 (quoting In re Hruska, 375 N.J. Super. 202, 210 (App. Div. 2005)).

                                       III.

      As noted, Howlett and Soares argue that the CSC erred by failing to refer

their administrative appeals to the OAL for an evidentiary hearing before

an ALJ. They argue that each appeal is a "contested case" under N.J.S.A.

52:14B-2 and that N.J.A.C. 4A:2-1.1(d) requires an evidentiary hearing to

resolve disputes of material fact pertinent to the Borough's bypass decisions.

      "It is well settled that a party affected by administrative action who desires

a hearing must first demonstrate the existence of a constitutional or statutory

right to such [a] hearing." In re Crowley, 193 N.J. Super. 197, 208-09 (App.

Div. 1984). "To establish a constitutional right to a hearing, an individual must

show that there is a genuine dispute of material fact and that he has a

constitutionally protected interest." Id. at 209 (citing Cunningham v. Dep't of

Civil Serv., 69 N.J. 13, 18-19 (1975)).

      "[T]he mere expectancy of employment [i]s not an interest of

constitutional dimension . . . ." Ibid. (citing Bd. of Regents v. Roth, 408 U.S.


                                                                            A-2268-18T1
                                       12
564, 576-77 (1972)). Moreover, "[n]o right accrues to a candidate whose name

is placed on an eligible list." Foglio, 207 N.J. at 44 (citing Crowley, 193 N.J.

Super. at 210). "The only benefit inuring to such a person is that so long as that

list remains in force, no appointment can be made except from that list."

Crowley, 193 N.J. Super. at 210. Therefore, Howlett and Soares do not have a

constitutional right to a hearing.

      We note that Howlett and Soares do not contend that they have a right

under the CSA to an evidentiary hearing on a bypass decision. Rather, they

contend an evidentiary hearing was required by N.J.S.A. 4A:2-1.1(d). The

statute provides in pertinent part that the CSC will decide an appeal "on the

written record" except when a hearing is required by law or the CSC finds "a

material and controlling dispute of fact exists that can only be resol ved by a

hearing . . . ." Ibid.

      Howlett and Soares have identified issues which they contend are

"material and controlling" and can only be resolved by an evidentiary hearing.

Those issues are: (1) the "actual reasons and motivations" for the Borough's

bypass decisions and the use of the Rule of Three for those decisions; (2) the

identities of the members of the PSC who conducted the interviews of the

eligible candidates for promotion to the positions of Sergeant and Lieutenant in


                                                                          A-2268-18T1
                                       13
March 2017 so that "conflicts and bias" on the part of these members can be

examined; (3) the grades each PSC member gave to each candidate interviewed;

(4) the date or dates each interviewer graded the candidates; (5) the "actual

reasons and motivations" for the grades given to the candidates; (6) the

Borough's process for selecting the members of the PSC who would conduct the

interviews; (7) whether Borough officials made any statements against interest

or admissions regarding the appeals; and (8) whether there are any other

documents related to the policies or procedures for the promotional interviews.

      However, the record shows that in its submissions to the Commission, the

Borough explained the "actual reasons and motivations" for utilizing the Rule

of Three and bypassing Howlett and Soares for promotions on PL170170 and

PL170171, respectively. The Borough stated that the members of the PSC

interviewed the candidates for Sergeant and Lieutenant, asked each candidate an

identical series of preset questions, and scored each candidate on their answers

on a fixed numerical basis.

      The Borough further explained that scoring sheets were completed

anonymously, and copies of those documents were provided.          Howlett and

Soares have not shown that the identities of the members who completed the

scoring sheets are relevant or material to their appeals. They also have not


                                                                        A-2268-18T1
                                      14
explained why the date or dates each candidate was graded is either relevant or

material. Even so, the Borough's attorney stated in a letter dated December 16,

2018, to the Police Benevolent Association, that the scoring sheets were

completed when the candidates were interviewed.

      Moreover, the Borough explained that all three members of the PSC

conducted the interviews and graded the candidates. Thus, there is no issue as

to the manner in which the Borough selected the members of the PSC to conduct

the interviews. In addition, the Borough explained that the "actual reasons and

motivations" of the persons who conducted the interviews was to score the

candidates based on their answers to the questions to determine their merit and

fitness for the positions.

      Furthermore, Howlett and Soares have not shown that an inquiry into

potential conflicts and bias on the part of the PSC members is warranted . They

did not present the CSC with evidence of any such conflict or bias. Howlett and

Soares also failed to show that disclosure of any statements against interest by

Borough officials regarding their appeals, or the production of "other"

documents related to the policies and procedures for the promotion interviews,

would be relevant or material to the appeals.




                                                                        A-2268-18T1
                                      15
      We therefore conclude that the CSC correctly determined that an

evidentiary hearing was not required to resolve the issues raised by Howlett and

Soares in their administrative appeals. The Borough provided the CSC with

explanations for its decisions to bypass Howlett and Soares for promotions in

March 2017. There were no disputed issues of material fact which required an

evidentiary hearing, and the CSC did not err by deciding the appeal based on the

written record.

                                        IV.

      Howlett and Soares further argue that the Commission's final decision is

arbitrary, capricious and unreasonable. They contend the Borough failed to

provide legitimate reasons when it bypassed Howlett on PL170170 and Soares

on PL170171. They assert the Borough bypassed them for promotion because

they were not "connected" with local politicians in the Borough. They also

argue that the Borough's interview process "itself leads to arbitrary and

capricious results[,]" and is "clearly against New Jersey's Constitution . . . ." We

disagree.

      As we previously stated, under the Rule of Three, "the appointing

authority has the discretion to bypass a higher-ranked candidate on a list of

eligible 'for any legitimate reason based upon the candidate's merit.'" Foglio,


                                                                            A-2268-18T1
                                        16
207 N.J. at 47 (quoting In re Hruska, 375 N.J. Super. at 210). If the appointing

authority has a "legitimate reason" for bypassing a higher-ranked candidate, then

the appointment does not run afoul of New Jersey’s Constitution. Crowley, 193

N.J. Super. at 214.

      Here, the record supports the Commission's determination that the

Borough properly exercised its discretion under the Rule of Three when it

bypassed Howlett on PL170170 and Soares on PL170171. The CSC found the

Borough has the discretion to conduct interviews as part of the promotional

process. The Borough has been using the interview process since 2014.

      The CSC noted that the members of the Borough's PSC conducted

interviews of the candidates for promotion to Sergeant and Lieutenant. Each

candidate was asked the same series of preset questions.          The candidates'

answers to the questions were given a score of between zero to five. In addition,

five points were added to any candidate that the Chief of Police recommended.

      The CSC found there was no credible evidence the interviews were

conducted inappropriately.     It stated that "the selection of lower ranked

candidates based on their performance during the interview[s] was not arbitrary

and provided a legitimate reason for the bypass of [Howlett and Soares]." There

is sufficient credible evidence in the record to support that finding.


                                                                          A-2268-18T1
                                       17
      The CSC also rejected Howlett's and Soares's assertions that the Borough's

bypass decisions were due to invidious reasons. The CSC noted that neither

Howlett nor Soares had presented any evidence to support their assertion that

the lower ranked eligible candidates were appointed based on political

considerations. We note that, while Orlando stated in his letter to the CSC that

the Borough implemented the interview process to circumvent the civil service

regulations and appoint persons with political connections, he provided no

evidence supporting that allegation.

      Affirmed.




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