IN THE MATTER OF DEAN TESTA, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1454-19
IN THE MATTER OF
DEAN TESTA, POLICE
SERGEANT (PM0861V),
ROCKAWAY TOWNSHIP.
_______________________
Argued April 13, 2021 – Decided May 3, 2021
Before Judges Yannotti and Natali.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2019-1865.
Robert K. Chewning argued the cause for appellant
Dean Testa (McLaughlin & Nardi, LLC, attorneys;
Maurice W. McLaughlin and Robert K. Chewning, on
the briefs).
Thomas N. Ryan argued the cause for respondent
Township of Rockaway (Laddey, Clark & Ryan, LLP,
attorneys; Thomas N. Ryan and Nicole C. Tracy, on the
brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent New Jersey Civil Service Commission
(Jonathan S. Sussman, Deputy Attorney General, on the
statement in lieu of brief).
PER CURIAM
Dean Testa appeals from an October 29, 2019 final decision of the Civil
Service Commission (CSC) which found that the Township of Rockaway
(Township) did not abuse its discretion in bypassing him for promotion to the
position of sergeant. We affirm.
I.
Testa began his employment as a police officer with the Township Police
Department (Department) in July 2002. Approximately sixteen years later, he
successfully completed the written examination for an open sergeant position
and was placed on the CSC promotion list. Testa ranked second out of seven
eligible candidates.
Despite his high ranking, the Township invoked the "Rule of Three" and
bypassed Testa to promote instead officers ranked first, third, and fourth on the
CSC list. On January 14, 2019, Testa appealed the Township's decision to the
CSC contending it was "arbitrary, capricious, and done with an in[s]idious
purpose." He also requested that the matter be referred to the Office of
Administrative Law (OAL) as a contested proceeding pursuant to
Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -31 and N.J.S.A.
52:14F-1 to -23.
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In a March 18, 2019 letter to the CSC, the Township's counsel provided
the following reasons for bypassing Testa for the sergeant position in favor of
the two lower-ranked candidates:
A review of their files showed that two of the top three
candidates . . . had several years of experience in the
[Department's] Detective Bureau, conducting
investigations and follow-ups into various types of
crimes. The other candidate, Dean Testa, did not have
such experience. The Township felt that experience in
the Detective Bureau would be an asset in this position.
The experience and additional specialized training that
an officer receives when he is assigned to the Detective
Bureau is invaluable for the role of sergeant. Such
experience gives that officer insight into situations and
investigations that not only he is engaged in, but also
those officers that . . . he is assigned to supervise, and
is responsible for what might come across during their
work shifts. This includes the taking of statements,
evidentiary matters and thoroughness in reporting and
documentation. Accordingly, the Township did not
choose Mr. Testa for this position.
In response, Testa submitted a certification challenging the bases for the
Township's decision. He stated he was not told that detective experience was
necessary for advancement, or that it would have improved his chances of being
promoted. He further questioned the good faith of the Township's reliance on
the Rule of Three to bypass candidates without detective experience, as it had
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failed to rely on that principle when promoting a previous officer to sergeant
who, like Testa, lacked experience as a detective.
Testa contended the Township's reasons were pretextual. He maintained
the real reason he did not receive a promotion to sergeant was because of his
contentious relationship with the Township's previous mayor. He claimed the
mayor expressed a personal animosity toward him based on his friendship with
a Township resident who had sued the mayor, and because Testa issued the
mayor's son's girlfriend a ticket for operating an unregistered vehicle.
According to Testa, the former mayor told him at a social event that he would
never be promoted to sergeant and that even if he was not re-elected as mayor,
the next mayor would "handle it and take over."
In further support of his claim that the Township acted in a retaliatory
fashion, Testa asserted he was "wrongfully bypassed" for promotion based on
previous objections he made to Department's Chief of Police regarding certain
safety policies. Finally, he contended that his "experience, service record, and
commendations" as a police officer were superior to those of the other
candidates.
On October 29, 2019, the CSC denied Testa's appeal. In its written
decision, the CSC found no material issue of disputed fact requiring a hearing
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before the OAL, and that Testa failed to establish a prima facie case of
retaliation. The CSC noted that the Township's mayor died before the December
4, 2018 CSC list was published, and Testa failed to provide evidence that the
Township bypassed him for promotion "because of the actions of the former
mayor or . . . any other animus towards him."
The CSC similarly concluded that Testa failed to provide any evidence
connecting his disagreements with the Chief of Police with the Township's
decision. Rather, the CSC determined the Township "presented a valid business
reason for bypassing" him and noted that even accepting as true that the
Township failed to employ previously the Rule of Three, it had not waived its
entitlement to apply that doctrine to Testa's circumstance, as it was not a "use it
or lose it" right. This appeal followed.
II.
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). We
will not upset a determination by the CSC unless it is arbitrary, capricious, or
unreasonable or it lacks fair support in the record as a whole. Ibid. A strong
presumption of reasonableness attaches to a decision of the CSC, In re Carroll,
339 N.J. Super. 429, 437 (App. Div. 2001) (citation omitted), as we "defer to an
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agency's expertise and superior knowledge of a particular field." Outland v. Bd.
of Trs. of the Tchrs.' Pension & Annuity Fund, 326 N.J. Super. 395, 400 (App.
Div. 1999) (citation omitted).
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." Ibid. (quoting Greenwood v. State
Police Training Ctr., 127 N.J. 500, 513 (1992)). We are not, however, "bound
by the agency's interpretation of a statute or its determination of a strictly legal
issue." Richardson v. Bd. of Trs., 192 N.J. 189, 196 (2007) (quoting In re
Taylor, 158 N.J. 644, 658 (1999)).
Testa first argues the CSC committed error when it denied his request to
refer his matter to the OAL because there were material facts in dispute pertinent
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to the Township's bypass decision. He maintains the Township's decision was
improperly based on implicit credibility findings, and the absence of a hearing
prevented the CSC from considering the Township's "true reasons" for
bypassing him. Testa asserts that under the circumstances, he "should have been
afforded a fact-finding hearing in order for both parties to be able to obtain and
present evidence." We disagree.
Pursuant to the APA, an administrative agency may transfer a "contested
case" to the OAL for a hearing. A contested case is defined under the APA as:
[A] proceeding, . . . in which the legal rights, duties,
obligations, privileges, benefits[,] or other legal
relations of specific parties are required by
constitutional right or by statute to be determined by an
agency by decisions, determinations, or orders,
addressed to them or disposing of their interests, after
opportunity for an agency hearing . . . .
[N.J.S.A. 52:14B-2.]
"The [APA] . . . does not create a substantive right to an administrative
hearing; it merely provides for a procedure to be followed in the event an
administrative hearing is otherwise required by statutory law or constitutional
mandate." Toys "R" Us v. Twp. of Mount Olive, 300 N.J. Super. 585, 590 (App.
Div. 1997) (citation omitted). An agency head has the exclusive authority to
determine whether a case is a contested case within the intent of the APA.
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N.J.S.A. 52:14F-7(a); N.J.A.C. 1:1-4.1; Sloan ex rel. Sloan v. Klagholtz, 342
N.J. Super. 385, 392 (App. Div. 2001).
"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." In re Crowley, 193 N.J. Super. 197, 209 (1984) (citing
Cunningham v. Dep't of Civ. 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. 564, 576-77 (1972)). Moreover,
"[n]o right accrues to a candidate whose name is placed on an eligible list." In
re Foglio, 207 N.J. 38, 44 (2011) (citing id. 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." In re Crowley, 193 N.J. Super. at 210 (citations
omitted).
Testa did not have a constitutional right to a hearing as his only interest
was his expectation that he would receive a promotion to sergeant. In re
Crowley, 193 N.J. Super. at 209. Nor did Testa have the right to an evidentiary
hearing under N.J.A.C. 4A:2-1.1(d) or N.J.S.A. 52:14B-2. N.J.A.C. 4A:2-1.1(d)
provides in pertinent part that the CSC will decide an appeal "on a written
record" except when a hearing is required by law or the CSC finds "a material
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and controlling dispute of fact exists that can only be resolved by a hearing."
When there are no contested material issues of fact, the matter is not considered
a "contested case." Sloan, 342 N.J. Super. at 392 (citing N.J.S.A. 52:14B-2(b)).
Here, the CSC did not base its final decision on any credibility findings
and there was no dispute as to any material fact. Rather, the CSC relied on the
undisputed facts in the record and rejected Testa's legal conclusions. In this
regard, Testa does not dispute that the Township was permitted to consider an
applicant's prior experience as a detective when evaluating promotions to
sergeant, that the promoted officers had such experience, and that he did not.
Further, as discussed below, Testa failed to establish a prima facie case of
retaliation and did not have a right to discovery based on those unsupported
claims.
III.
Testa also contends that the Township's bypass decision was arbitrary and
capricious and was a pretext for its "retaliation and bad faith." He further argues
the CSC should have required the Township to submit certifications or sworn
statements addressing the bases for its decision rather than accept the reasons
stated in its counsel's March 18, 2019 letter. Again, we disagree.
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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. at 43-44
(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 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
candidates by score, with special ranking rules for veterans and for tie scores. "
Ibid. (citing N.J.A.C. 4A:4-3.2).
The "Rule of Three . . . governs the hiring discretion of the appointing
authority[ and] 'permits an appointing authority to select one of the three highest
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scoring candidates from an open competitive examination.'" Id. at 45 (quoting
Loc. 518, N.J. State Motor Vehicle Emps. Union v. Div. of Motor Vehicles, 262
N.J. Super. 598, 603 (App. Div. 1993)). "[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)). Valid reasons for a bypass include a preference for
a college degree, performance in an interview, character, prior experience,
training, and employment references. Id. at 49.
Here, the record supports the CSC's determination that the Township
properly exercised its discretion under the Rule of Three when it bypassed Testa
for promotion. The Township provided the CSC with a detailed and
comprehensive explanation for its decision; namely, that he lacked critical
investigatory experience that the other two candidates possessed. As the CSC
found, Testa's undisputed lack of detective experience was a "valid business
reason" for the Township's decision. Indeed, according to the Township's March
18, 2019 letter, upon which the CSC relied, detective experience included
"additional specialized training," which the Township deemed "invaluable" for
the sergeant position.
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Further, we reject Testa's argument that the Township's statement of
reasons contained in its counsel's March 18, 2019 letter was deficient because it
was uncertified. First, as noted, the relevant facts regarding Testa's lack of
detective experience compared to the other two applicants was not disputed.
Second, as Testa's counsel conceded at oral argument, there is no statutory or
regulatory support for the proposition that an appointing authority must certify
its detailed reasons for invoking the Rule of Three.
We also agree with the CSC that Testa failed to establish a prima facie
case of retaliation. We have previously held that the burden of proof lies with
a bypassed candidate to show by a preponderance of the evidence that the
appointing authority's decision was motivated by discrimination, retaliation, or
other improper motive. Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J.
Super. 436, 445 (App. Div. 1990).1
Once the claimant makes a prima facie showing, the burden of production,
but not the burden of persuasion, shifts to the employer to articulate a legitimate,
non-discriminatory, or non-retaliatory reason for the decision. Ibid. If the
1
We note that Testa does not contend that the Township's decision was based
on his engagement in protected activity or discrimination against a protected class,
such as discrimination because of race, sex, or age, under the New Jersey Law
Against Discrimination, N.J.S.A. 10:5-1 to -49.
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employer meets its burden, the claimant can still prevail if the claimant shows
that the proffered reasons are pretextual or that the improper reason more likely
motivated the employer. Ibid. Further, if the claimant meets that burden, the
claimant has established a presumption of discriminatory or retaliatory intent
and the burden shifts to the employer. Id. at 445-46. The employer must then
prove by a preponderance of the evidence the action would have occurred
regardless of the discriminatory or retaliatory motive, by showing that other
candidates had better qualifications. Id. at 447.
The CSC carefully evaluated the evidence and concluded that Testa failed
to demonstrate the Township's bypass decision was the product of retaliation or
any other improper motive. Even if Testa made a prima facie showing, which
he did not, the Township articulated a legitimate reason for bypassing him. The
two lower-ranked candidates possessed important experience, deemed
significant to the Township, which Testa did not have. We are satisfied that
Testa failed to show that this non-discriminatory and non-retaliatory reason for
promoting the other two candidates was pretextual or based on an improper
motive.
We also find Testa's arguments to be speculative and conclusory. As the
CSC noted, the Township's mayor died before the December 4, 2018 CSC list
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was even published. Testa failed to present any evidence that any animus the
former mayor may have had toward him, or his right to a promotion, was
effectuated posthumously by the Township or any of its agents when relying on
the Rule of Three. In this regard, Testa's belief that the Township's new mayor
may have had some involvement in the Township's decision based on the former
mayor's comments is unsupported by the record.
We also reject Testa's claim that the Township's previous promotion of an
officer without detective experience to sergeant was evidential of the
Township's retaliatory motive. The CSC had no evidence detailing the
circumstances of that promotion or the qualifications of the previous candidate
in comparison to other applicants. Under the circumstances, the CSC did not
abuse its discretion in concluding that, even assuming the Township did not
previously employ the Rule of Three in that case, it had not waived its right to
rely on that principle here.
Finally, Testa also failed to introduce any evidence, apart from his
unsupported attestations, that his prior objections to the Chief of Police played
any role in the Township's decision. In fact, the record supports the conclusion
that the Township considered Testa a valued member of the Department and
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reveals not a single adverse and retaliatory employment action taken by the
Township during his now eighteen-year employment history.
As the CSC's decision was supported by the record and consistent with
applicable law, we conclude that it did not abuse its discretion when it affirmed
the Township's decision to bypass Testa for promotion to sergeant without the
need for an evidentiary hearing. To the extent we have not addressed any of
Testa's remaining arguments, it is because we have concluded they are of
insufficient merit to warrant extended discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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