IN THE MATTER OF WILLIAM PIERCE, 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NOT FOR PUBLICATION WITHOUT THE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-0892-17T2
IN THE MATTER OF
WILLIAM PIERCE,
CITY OF HACKENSACK,
POLICE DEPARTMENT.
____________________________
Argued May 14, 2019 – Decided June 28, 2019
Before Judges Gilson and Natali.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2015-1891.
Maurice W. Mc Laughlin argued the cause for appellant
William Pierce (Mc Laughlin & Nardi, LLC, attorneys;
Maurice W. Mc Laughlin and Robert K. Chewning, on
the briefs).
Raymond R. Wiss argued the cause for respondent City
of Hackensack Police Department (Wiss & Bouregy,
PC, attorneys; Raymond R. Wiss, of counsel; Timothy
James Wiss and Thomas Kevin Bouregy, on the 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).
PER CURIAM
Appellant William Pierce, a sixteen-year member of the Hackensack
Police Department (Department), appeals from a final decision of the Civil
Service Commission (Commission). Because we conclude the Commission's
decision was neither arbitrary nor capricious, we affirm.
I.
After serving as a patrol officer for ten years and passing the sergeant's
exam, Pierce was provisionally promoted to the title of sergeant, subject to his
successful completion of a three-month working test period (WTP). After Pierce
failed to complete successfully his WTP, the Department reduced his rank to
patrol officer. Pierce filed an administrative appeal of the Department's
decision, and the parties entered a settlement agreement whereby the
Department agreed to re-promote Pierce to the sergeant position, and provide
him with the opportunity to complete a second WTP.
At the end of the second WTP, the Department determined that Pierce
failed to perform the duties of sergeant and demoted him to patrolman. Pierce
filed an appeal with the Commission, which transferred the matter to the Office
of Administrative Law to be heard as a contested matter before an
Administrative Law Judge (ALJ).
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The ALJ conducted hearings over the course of six days. During those
proceedings, Pierce and four other Department police officers, Sergeant Walter
Peterson and Captains Patrick Coffey, Peter Busciglio, and Timothy Lloyd,
testified. The Department and Pierce also relied on documentary evidence.
The Department maintained that Pierce lacked the administrative skills
necessary for a sergeant, citing his inability to multitask, and his delay in
processing paperwork. In addition, the Department claimed, based on reports
from other officers, that Pierce communicated with them in a condescending
manner. The Department also maintained that fellow patrol officers lacked
confidence in Pierce, and expressed concern how he would respond in a
life-or-death situation.
For example, Coffey testified that he briefly supervised Pierce's work
during his second WTP, during which time he observed and received complaints
about Pierce using a condescending, "abrasive," or similar tone when
communicating with subordinate patrol officers. In a memorandum evaluation
of Pierce's performance, Coffey stated that he did not recommend that Pierce
"be permanently promoted to the rank of Sergeant." Peterson, who the ALJ
found to be "honest and credible," was primarily responsible for supervising
Pierce during the WTP, and also stated he would not recommend that Pierce be
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promoted to the position of sergeant. In Lloyd's written review of Pierce's WTP,
he noted that although he interacted with Pierce sporadically, based on his
limited observations and conversations with other supervisors and Pierce's
peers, he could not "in good consci[ence] say that [Pierce] [was] ready for the
full time role as Patrol Supervisor."
Sergeant T.M. Cappadonna recounted in a memorandum that she observed
Pierce during a fire incident behave professionally but he failed to "free up
man-power as soon as they were no longer needed." Cappadonna concluded that
Pierce was "capable of being a police sergeant," but "his shortcomings prevent
him from doing so at the same time." Cappadonna explained that "[i]f there is
any time left prior to his demotion date he should be made aware of them
immediately and . . . given an opportunity to eliminate them."
In its July 24, 2017 initial decision, the ALJ concluded that the
Department "failed to provide Pierce with adequate notice of his work
performance during his . . . WTP and therefore did not exercise good faith during
the WTP." Accordingly, the ALJ recommended the reversal of the Department's
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demotion of Pierce, and that he be provided another WTP as a result of the
aforementioned procedural irregularities.1
The ALJ faulted the Department for waiting until a week was left in his
WTP before providing Pierce with written copies of his evaluation reports.
Further, the ALJ criticized Coffey, who was assigned to work with Pierce during
the WTP in order to evaluate his performance, yet only observed Pierce's
performance on eight out of the ninety days, and failed to complete nine of
twelve evaluations, many of which lacked sufficient detail. The ALJ determined
these deficiencies prevented Pierce from remedying his inadequate job
performance and accordingly reversed Pierce's demotion and awarded him a new
WTP "so a true evaluation of his abilities can be made."
1
The ALJ who presided over the trial issued an "initial decision" on February
16, 2017, which found that due to "irregularities in the procedures regarding
Pierce's working test period," the Department "demoted Pierce in bad faith," and
accordingly "ordered . . . Pierce be re-promoted to the rank of sergeant and be
provided with a [new] working test period . . . along with costs and reasonable
attorney's fees." On February 22, 2016, however, the Acting Director and Chief
ALJ sent the parties a letter advising that the ALJ who had presided over the
trial and authored the February 16, 2017 "initial decision" had retired, and the
matter was reassigned to a new ALJ. The Chief ALJ also informed the parties
that prior to her retirement, the first ALJ released the February 16, 2017 "initial
decision" "accidentally" as it "was actually a draft." The second ALJ issued the
July 24, 2017 initial decision that was affirmed by the Commission.
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Pierce submitted a letter brief to the Commission on August 4, 2017
asserting that the ALJ failed "to include all of the required remedies [he] should
be awarded . . . ." Specifically, Pierce maintained that he should be promoted
to the permanent position of sergeant, without having to go through another
WTP. He also argued that he should be entitled to attorney's fees, back pay, and
seniority status.
In a September 7, 2017 final decision, the Commission adopted the ALJ's
recommendations, findings of fact and conclusions of law, reversed Pierce's
demotion, and awarded him a new WTP. The Commission determined that
although Pierce "will be permitted to complete a new working test period, [he]
has not obtained permanent status as a [p]olice [s]ergeant" as "the record does
not adequately establish [Pierce's] satisfactory work performance." Relying on
two Merit System Board decisions, the Commission denied his application f or
counsel fees and costs, back pay, and seniority status. As to Pierce's request for
counsel fees and back pay, the Commission concluded that "sufficient cause has
not been demonstrated in this matter to award back pay or counsel fees" because
"it was found that [Pierce] is not entitled to a permanent appointment since he
had not successfully completed his working test period." This appeal followed.
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II.
On appeal, Pierce argues that the Commission committed error in refusing
to appoint him to the position as sergeant. Next, Pierce maintains he should
have been awarded back pay, seniority status, counsel fees, and costs.
Specifically, he asserts that under N.J.A.C. 4A:2-1.5(b), the Commission was
required to award these remedies based on the ALJ's and Commission's findings
of bad faith on the part of the Department. Finally, Pierce contends N.J.A.C.
4A:2-2.12(a) also compelled an award of counsel fees and costs as he was a
successful claimant because he would have "completed his working test period
and remained a permanent sergeant . . . [b]ut for [HPD's] bad faith." We
disagree with all of these arguments and affirm.
III.
Our review of a decision of an administrative agency is limited. In re
Herrmann, 192 N.J. 19, 27 (2007). "A strong presumption of reasonableness
attaches" to agency action. In re Vey, 272 N.J. Super. 199, 205 (App. Div.
1993). Further, the Commission has "broad powers" in deciding personnel
matters. City of Hackensack v. Winner, 82 N.J. 1, 18 (1980). Reviewing courts
"will not upset a determination by the Commission in the absence of a showing
that it was arbitrary, capricious or unreasonable, or that it lacked fair support in
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the evidence, or that it violated legislative policies expressed or implicit in the
civil service act." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).
A.
Pierce's first argument that the Commission committed error in failing to
appoint him permanently to the position of sergeant is without merit as there
was substantial credible evidence in the record to support the ALJ's and
Commission's conclusion that he failed to satisfactorily complete the WTP.
"The purpose of [a] [WTP] is to permit an appointing authority to determine
whether an employee satisfactorily performs the duties of a title." N.J.S.A.
11A:4-15; see N.J.A.C. 4A:1-1.3 (defining "[w]orking test period" as "a part of
the examination process after regular appointment, during which time the work
performance and conduct of the employee is evaluated to determine if permanent
status is merited"). Thus, "the actual completion of a working test period is
ordinarily a basic condition of permanent employment." Cipriano v. Dep't of
Civil Serv., 151 N.J. Super. 86, 90 (App. Div. 1977); see also N.J.A.C. 4A:1-1.3
(conditioning permanent appointment upon "successful completion of the
working test period").
When an employee who has earned permanent appointment in a lower title
serves a WTP for a higher title, but does not satisfactorily complete and perform
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the duties of the higher title during the WTP, the employee is subject to
demotion to the lower permanent title that he or she has retained. N.J.S.A.
11A:4-15(d); Briggs v. Dep't of Civil Serv., 64 N.J. Super. 351, 355 (App. Div.
1960); accord N.J.A.C. 4A:4-5.1(a), (c). The question of satisfactory
performance is a matter typically entrusted to the Commission, and its decision
in that regard generally is entitled to deference when fairly supported by the
record. See Malani v. Cty. of Passaic, 345 N.J. Super. 579, 589-90 (App. Div.
2001); Briggs, 64 N.J. Super. at 354-55. "If bad faith is found by the
Commission, the employee shall be entitled to a new full or shortened working
test period and other appropriate remedies." N.J.A.C. 4A:2-4.3(c) (citing
N.J.A.C. 4A:2-1.5 as a source of other appropriate remedies).
Although Pierce established, and the ALJ and Commission agreed, that he
was entitled to a new WTP in light of the Department's procedural irregularities,
the record supports the Commission's decision that he did not satisfactorily
complete the WTP. For example, Coffey testified that sergeants are the first
supervisors in the chain-of-command from whom patrol officers "seek guidance
or assistance," and that a sergeant's duties include "giv[ing] suitable assignments
and instructions to the police officers on duty," and "to treat citizens and others
with uniform with courtesy and consideration." Coffey further testified that he
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observed Pierce use an "abrasive" tone with a subordinate who Coffey believed
was seeking advice, received similar complaints about Pierce's "demeanor" from
officers who were "unhappy with . . . the way they felt [Pierce] was speaking to
them," and received "a few complaints" from patrol officers who "weren't
comfortable or confident with [Pierce] handling certain situations as a
supervisor."
Specifically, Coffey stated that he believed Pierce did not multitask well,
and the written report of Lloyd echoes that sentiment. As Coffey explained, if
patrol officers "don't witness their direct supervisor keeping things . . . operating
smoothly, they start to lose faith and lack of confidence in that individual," and
when "officers become disgruntled and stop performing in their jobs" it may
lead to "public safety issues and officer safety issues." In accordance with
Cappadonna's memorandum, which concluded Pierce was "capable of being a
police sergeant" but "his shortcomings prevent him from doing so at the same
time," the Commission's decision not to award Pierce permanent appointment as
a sergeant, but instead to award a new WTP for the Department to evaluate in
good faith Pierce's ability to execute the duties and responsibilities of sergeant,
was reasonable and not an abuse of discretion.
B.
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Next, we also reject Pierce's argument that N.J.A.C. 4A:2-1.5 entitled him
to seniority status, back pay, and counsel fees and costs "based on [HPD's] bad
faith." Pursuant to N.J.A.C. 4A:2-1.5(a), "[s]eniority credit may be awarded in
any successful appeal." Because the Commission's decision not to award Pierce
permanent appointment as a sergeant was reasonable, it follows that the
Commission's decision not to award Pierce seniority credit as a sergeant was
neither arbitrary nor capricious.
With respect to the other remedies, N.J.A.C. 4A:2-1.5(b) provides:
Back pay, benefits and counsel fees may be awarded in
disciplinary appeals and where a layoff action has been
in bad faith. See N.J.A.C. 4A:2–2.10. In all other
appeals, such relief may be granted where the
appointing authority has unreasonably failed or delayed
to carry out an order of the . . . Commission or where
the Commission finds sufficient cause based on the
particular case. A finding of sufficient cause may be
made where the employee demonstrates that the
appointing authority took adverse action against the
employee in bad faith or with invidious motivation.
[(emphasis added).]
Pierce contends the Commission "[in]correctly applied" that regulation
because the ALJ found the Department's "failure to offer adequate time to
remediate deficiencies in job performance during a WTP constitutes bad faith,"
and the Commission adopted that finding. Thus, according to Pierce, because
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he demonstrated bad faith by the Department, the Commission "mistakenly
limited how sufficient cause could be established to only when an appellant
demonstrates that he [or she] has successfully completed his [or her] working
test period." We disagree.
"Under the 'plain meaning' rule . . . , the word 'may' ordinarily is
permissive and the word 'shall' generally is mandatory." Aponte-Correa v.
Allstate Ins. Co., 162 N.J. 318, 325 (2000). Under N.J.A.C. 4A:2-1.5(b), the
Commission "may" find "sufficient cause" to grant back pay, benefits and
counsel fees upon a showing of bad faith. There is nothing in the regulation that
suggests the word "may" was intended to be mandatory. Cf. Harvey v. Bd. of
Chosen Freeholders of Essex Cty., 30 N.J. 381, 392 (1959).
Further, "[a]n agency's interpretation of its own regulations is entitled to
substantial deference," and we generally defer to that interpretation "unless the
language of the regulations is not reasonably susceptible to that interpretation."
DiMaria v. Bd. of Trustees of Pub. Employees' Ret. Sys., 225 N.J. Super. 341,
351 (App. Div. 1988) (citations omitted). Clearly, the language of N.J.A.C.
4A:2-1.5(b) is reasonably susceptible to the interpretation that the Commission
has discretion whether to award back pay, benefits, and counsel fees upon a
showing of bad faith. We conclude the Commission reasonably exercised that
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discretion in denying Pierce those remedies based on Pierce's failure to establish
successful completion of the WTP, and its decision to grant Pierce a new WTP.
C.
Finally, we also reject Pierce's claim that N.J.A.C. 4A:2-2.12(a) entitled
him to counsel fees. Pursuant to N.J.A.C. 4A:2-2.12(a), the Commission "shall
award partial or full reasonable counsel fees incurred in proceedings before it
and incurred in major disciplinary proceedings at the departmental level where
an employee has prevailed on all or substantially all of the primary issues before
the Commission." According to Pierce, he was entitled to counsel fees under
that rule because he prevailed on the issue of whether the Department engaged
in bad faith. We disagree.
The "procedures established by chapter 2, subchapter 2" of Title 4A of the
administrative code, which includes N.J.A.C. 4A:2-2.12, are "for the appeal of
major disciplinary action by permanent employees in the career service." See
In re Hearn, 417 N.J. Super. 289, 303 (App. Div. 2010); accord Oches v. Twp.
of Middletown Police Dep't, 155 N.J. 1, 8 (1998) (explaining that N.J.A.C.
4A:2–2.12 "specifically appl[ies] to disciplinary appeals"). "Major discipline"
includes "[d]isciplinary demotion[s]," but not non-disciplinary demotions at the
end of a WTP. N.J.A.C. 4A:2-2.2(a). Therefore, N.J.A.C. 4A:2-2.12(a) is
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inapplicable to this non-disciplinary appeal. Further, the primary issue raised
by Pierce before the Commission was whether he successfully completed his
WTP and should therefore be promoted to the permanent position of sergeant.
Pierce did not prevail on that issue. Accordingly we conclude the Commission's
decision to deny counsel fees constituted a valid interpretation of its regulations
and was not arbitrary, capricious, or unreasonable.
To the extent we have not specifically addressed any of Pierce's remaining
contentions, it is because we find they have insufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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