                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-5470-16T1

IN THE MATTER OF ROBERT                    APPROVED FOR PUBLICATION
BROWN, POLICE SERGEANT
                                                   March 1, 2019
(PM0622N), CITY OF SALEM.
___________________________                    APPELLATE DIVISION


            Submitted January 23, 2019 – Decided March 1, 2019

            Before Judges Fisher, Suter and Firko.

            On appeal from the New Jersey Civil Service
            Commission, Docket No. 2017-2287.

            Lauren P. Sandy, attorney for appellant Robert Brown.

            Chance & McCann LLC, attorneys for respondent City
            of Salem (Andrea Rhea, on the letter brief).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent Civil Service Commission (Pamela N.
            Ullman, Deputy Attorney General, on the statement in
            lieu of brief).

      The opinion of the court was delivered by

FISHER, P.J.A.D.

      When a civil service vacancy arises, the law calls for the creation of an

eligible list and imposes on appointing authorities what is known as the rule of

three, N.J.S.A. 11A:4-8, which obligates a selection of one of the list's top three

candidates. See, e.g., In re Martinez, 403 N.J. Super. 58, 72 (App. Div. 2008).
This rule provides the appointing authority "minimal discretion" in hiring, In re

Crowley, 193 N.J. Super. 197, 210 (App. Div. 1984), while injecting "'merit'

considerations" into the process, Terry v. Mercer Cty. Bd. of Chosen

Freeholders, 86 N.J. 141, 149-50 (1981); accord N.J. Const. art. VII, § 1, ¶ 2

(declaring that "[a]ppointments and promotions in the civil service . . . shall be

made according to merit and fitness to be ascertained, as far as practicable, by

examination, which, as far as practicable, shall be competitive"). So, to serve

the competing interests of discretion and merit, an appointing authority must

apply the rule of three but, in the process, may bypass a higher-ranked candidate

for any "legitimate reason." In re Foglio, 207 N.J. 38, 47 (2011); Crowley, 193

N.J. Super. at 214. A "legitimate reason," however, would not include utilizing

the rule of three to discriminate in an unlawful or retaliatory manner. Terry, 86

N.J. at 152 (holding that a "construction of the civil service statute which would

completely submerge and displace the corrective purposes of the Law Against

Discrimination in favor of the merit principles of the civil service laws is

unwarranted"); see also In re Hruska, 375 N.J. Super. 202, 210 (App. Div. 2005)

(recognizing that "the Law Against Discrimination, N.J.S.A. 10:5-17, further

limits the appointing authority's discretion during hiring determination s despite

the rule of three").


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      Robert Brown has been employed by the City of Salem as a police officer

for sixteen years. He is African-American and claims disparate treatment in

Salem's promotion of officers to vacant sergeant positions.

      The record reveals Salem was in the habit of designating officers to act as

sergeants rather than actually making such promotions; that circumstance

prompted Officer Brown to file a civil service appeal as well as a complaint with

the Equal Employment Opportunity Commission in 2013. These claims were

resolved when Salem agreed to thereafter permanently appoint officers to vacant

sergeant positions. In conjunction with this settlement, Salem's city solicitor

informed the parties in June 2014 that because the Civil Service Commission's

creation of a new appointment list would take time, the most senior officer – a

Caucasian officer – would be designated "provisional sergeant" with the

understanding he would not receive "any superior rights to the permanent

appointment" as a result.     The city solicitor also advised that with the

designation of this officer, Salem would "continue[] the Department's 'seniority'

tradition" (emphasis added). Five months later, the Commission certified a list

for appointment to the position of sergeant. Officer Brown appeared fourth on

the list; the Caucasian officer, who had been designated "provisional sergeant,"




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appeared in first place and received the only appointment to sergeant that Salem

made at that time.

      Another list was certified in August 2016, and the City promoted three

officers from that list; Officer Brown was ranked second but was bypassed. The

officers in first, third, and fourth position were promoted instead; the first and

third officers are Caucasian, the fourth is African-American.1 This prompted

Officer Brown's appeal to the Commission.


1
   The race of the officers on the August 2016 list – other than Officer Brown –
was not revealed in the record on appeal. We recently asked the parties for this
information. In stipulating to the race of the officers on the list, however, the
Commission and Salem argue that Brown did not previously argue that Salem's
bypassing of him was based on unlawful discrimination and they urge that we
not consider this new assertion, citing Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973). But the jurisprudential rule that appellate courts should not
consider facts or arguments not previously presented or raised is not always
applicable; our Supreme Court has put aside the Nieder rule to accomplish a just
result in a number of instances. See, e.g., O'Donnell v. N.J. Tpk. Auth., __ N.J.
__, __ (Jan. 14, 2019) (slip op. at 8, 22-23) (in deciding the issue presented, the
Supreme Court permitted expansion of the record and considered facts and an
argument not presented to the Law and Appellate Divisions); State v. T.J.M.,
220 N.J. 220, 232 (2015) (the Court considered facts presented by the Attorney
General for the first time at oral argument in the Supreme Court and, in ruling,
considered these new factual assertions in resolving the issue presented); State
v. Dellisanti, 203 N.J. 444, 447-48, 452 n.1, 460 (2010) (after the Supreme Court
rendered its opinion, the retired trial judge wrote to correct a misperception
about the factual record that was previously presented to the Appellate Division
and the Supreme Court and acceded to by the State; the Supreme Court accepted
the parties' stipulation of facts in light of the retired judge's assertions, vacated
its prior opinion, and newly decided the issues presented based on the new
information).
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      In seeking relief, Officer Brown claimed he was senior to two of the three

promoted over him – in contravention of the seniority "tradition" cited by the

city solicitor in June 2014 – and he claimed more experience as "acting sergeant"

than two of the three promoted officers. Officer Brown also argued to the

Commission that the officer in first place had both been caught sleeping while

on duty in 2016 and received complaints about his interactions with the

community. Contrasting that officer's circumstances with his own, Officer

Brown claimed he was never disciplined, never received complaints about his

public interactions, and was honored several times in the past for outstanding

service.

      Salem and its police chief disputed Officer Brown's contentions, claiming

in their own submissions that the officers in first and fourth place on the list had

both logged hours as "acting sergeant"; presumably, because he wasn't

mentioned, the City and the police chief conceded the officer in third place had

not logged "acting sergeant" hours. Officer Brown responded that he had almost

three times the amount of hours as "acting sergeant" than the officer in first place

on the list.

      Salem and its police chief also expressed concerns about Officer Brown's

performance in supervising others as noted in his most recent performance


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                                         5
review; the other candidates, according to Salem and its police chief, did not

receive similar criticism in their performance reviews. The chief of police

acknowledged Officer Brown received awards for past service, but he claimed

the other candidates did as well. And, the chief of police disputed Officer

Brown's claim to a clean disciplinary record, asserting that Officer Brown once

allowed a less-experienced officer to take control of a tactical briefing during

his shift as "acting sergeant" so he could make personal phone calls, and that on

another occasion Officer Brown allegedly failed to teach an officer proper patrol

procedures.2

      Based on these allegations – and without conducting an evidentiary

hearing to ascertain the truth of the disputed allegations or to determine whether

the appointing authority's reasons were a pretext for retaliation or unlawful

discrimination – the Commission issued a final decision in Salem's favor. The

Commission rejected the contention that Salem had a practice of basing

appointments on seniority despite what the city solicitor said in June 2014,

viewed Officer Brown's assertions as "mere allegations" while apparently



2
   There were other discrepancies about disciplinary records in the parties'
submissions to the Commission that we need not discuss because of the nature
of our disposition of this appeal and because the Commission also made no
mention of that information in its final decision.
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accepting the police chief and Salem's allegations, and detected an absence of

substantive evidence to support the claim that the bypassing of Officer Brown

was anything but an exercise of permissible discretion.

      We acknowledge that our review of administrative determinations is

limited, In re Stallworth, 208 N.J. 182, 194 (2011), and that a presumption of

reasonableness attaches to those decisions, In re Vey, 272 N.J. Super. 199, 205

(App. Div. 1993), aff'd, 135 N.J. 306 (1994).        But this deference largely

emanates from our appreciation of the agency's expertise combined with its

opportunity to see and hear the witnesses when making credibility findings on

disputed questions. In re Taylor, 158 N.J. 644, 656 (1999). Here, the City

contends that we should defer to the Commission's determination when the

Commission only weighed the parties' submissions without testing their

contentions at an evidentiary hearing. To be sure, we acknowledge that many

civil service matters may be resolved without an evidentiary hearing, but we

find emerging from the disputed facts and circumstances here an air of

pretextuality not easily disregarded. Because the parties' factual disputes have

yet to be examined through the give and take of an evidentiary hearing, at which

the agency might for the first time form a view of the disputants' credibility, we




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find the Commission's decision, which dismissed Officer Brown's allegations in

conclusory fashion, to be arbitrary, capricious, and unreasonable.

      Vacated and remanded for further proceedings in conformity with this

opinion. We do not retain jurisdiction.




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