Opinion
DOCKET NO. A-4293-13T2
11-09-2015
IN THE MATTER OF DANIEL DUNN, FIRE CAPTAIN (PM5247N), CITY OF WILDWOOD.
Carl N. Tripician argued the cause for appellant Daniel Dunn. William G. Blaney argued the cause for respondent City of Wildwood (Blaney & Donohue, P.A., attorneys; Mary D'Arcy Bittner, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, of counsel and on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Higbee. On appeal from the Civil Service Commission, Docket No. 2014-27. Carl N. Tripician argued the cause for appellant Daniel Dunn. William G. Blaney argued the cause for respondent City of Wildwood (Blaney & Donohue, P.A., attorneys; Mary D'Arcy Bittner, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, of counsel and on the statement in lieu of brief). PER CURIAM
Daniel Dunn appeals from an April 10, 2014 final agency decision by the Chairperson of the Civil Service Commission (the Commission) upholding a determination by the appointing authority, Anthony Leonetti, Commissioner of Public Safety, bypassing Dunn's name on the fire captain eligible list for the City of Wildwood (Wildwood). We affirm.
In 2004, Dunn and Ernie Troiano III became full-time firefighters for Wildwood's Fire Department (the Fire Department). Troiano's father is the Mayor of Wildwood. Dunn and Troiano obtained extensive firefighter training and experience on the job and in the classroom. When the position of fire captain (the captain position) became available in Wildwood, Dunn, Troiano, and two other firefighters competed for that promotion.
Eligibility for promotion required interested candidates to submit to a civil service test. Four individuals took the promotional examination and Dunn scored the highest marks, with Troiano coming in second place. The difference in their ranking was less than one percent: Dunn scored 94.48 and Troiano 93.57.
Leonetti, who is a firefighter in another community, reviewed the qualifications of the candidates, bypassed Dunn, and selected Troiano for the position. Dunn believed Troiano was less qualified for the promotion than he and that Leonetti's selection of Troiano was the product of improper motives. Dunn appealed Leonetti's decision to the Commission.
Dunn submitted several certifications in support of this appeal. In June 2013, Dunn certified that he believed the bypass was the product of nepotism, cronyism, and retaliation. Dunn indicated that Leonetti and the Mayor are "good friend[s]" and political allies. Dunn detailed purported instances of nepotism and cronyism on the part of the Mayor, Leonetti, and another commissioner for Wildwood benefiting Troiano's brother. Dunn believed Leonetti had shared details with Leonetti's son-in-law and fellow firefighter, Ron Harwood, regarding a prior bypass appeal filed by Dunn. Dunn certified that Harwood spoke out against him, including telling another firefighter that he "will be nothing more than a firefighter."
Dunn noted his accomplishments, including obtaining a Bachelor of Science degree in Fire Science, a Master's in Public Safety Management, and numerous certifications, awards, and commendations. Dunn highlighted his experience as a firefighter/EMT beginning in 1999, a fire prevention specialist, and from several other positions in Wildwood.
Dunn certified that, while he served as the acting captain of his platoon from December 2012 until March 2013, the Fire Chief was "battling it out" with Leonetti that Dunn be appointed to the captain position. Dunn indicated Troiano was sworn-in to the captain position in a ceremony, and "[n]o one in [the Fire Department] knew about [the ceremony]." He also certified Troiano made statements suggesting improper motives, including that "[t]his may be [Troiano's] only chance to get this promotion" and that "Leonetti won't promote [Dunn]."
In an August 2013 letter to the Commission, Leonetti justified the bypass by relying on Troiano's leadership abilities. Leonetti maintained, as a firefighter himself, that he observed how firefighters work together, and concluded that Troiano not only possessed the requisite leadership skills, but also that Troiano commanded respect "among the rank and file." Leonetti disputed that Dunn is more experienced than Troiano, noting Dunn and Troiano were sworn-in as firefighters on the same day.
In October 2013, Dunn certified that he had greater experience before joining the Fire Department than Troiano, questioned Leonetti's ability to observe Troiano exhibiting leadership abilities when combatting a fire, stated that the current and former Fire Chiefs recommended him for the captain position, and reiterated his belief that the bypass was the result of improper motives.
In January 2014, the Commission requested more information from Leonetti about Troiano's qualifications and Leonetti's reasons for bypassing Dunn in favor of Troiano. Leonetti responded by insisting that his decision was "completely independent" and the fact that Troiano is the Mayor's son "in no way affected [his] decision Leonetti explained other employees spend time with and respect Troiano; Troiano performs extra work without seeking overtime; Troiano has a better attitude; and Dunn and Troiano are equally experienced, "essentially equal in their qualifications, on paper."
In February 2014, Dunn submitted another certification to the Commission, contrasting his qualifications with Troiano's, insisting popularity amongst the Fire Department is not a merit consideration, highlighting his service outside his firefighter duties, disputing that he has an attitude of entitlement, and reiterating his belief that the bypass was the result of improper motives.
The Commission carefully considered the evidence, issued a comprehensive written decision, and rejected Dunn's argument that retaliation was a factor in the bypass decision. The Commission explained preliminarily that Dunn's assertions regarding Harwood were "immaterial in the present matter, as there is no evidence in the record that Harwood was involved in Wildwood's selection process in general and [Dunn's] bypass in particular."
As to nepotism and cronyism, the Commission determined that Dunn failed to present competent evidence of these motives. The Commission explained that Dunn "merely speculate[d]" he was a victim of nepotism and cronyism because Troiano is the Mayor's son and Leonetti is a political ally of the Mayor. The Commission further noted that the alleged prior instances of nepotism and cronyism benefiting Troiano's brother "do not establish that [Dunn's] bypass in the instant matter was motivated by nepotism."
The Commission also found that Leonetti provided legitimate reasons for the bypass. It determined that although Dunn and Troiano were equally experienced, having been sworn-in as full-time firefighters on the same day, Troiano had superior leadership abilities. The Commission explained that Dunn's accomplishments in titles other than firefighter did not "per se make him more qualified than Troiano" for the captain position. The Commission further reasoned that even if Dunn was more qualified for the captain position, Leonetti properly exercised his discretion under the "rule of three," N.J.A.C. 4A:4-4.8(a)(3), which allows a bypass absent improper motives. Ibid.
The Commission also noted that "it is within the appointing authority's discretion to choose its selection method"; thus, Leonetti was not required to conduct interviews before appointing Troiano. The Commission concluded that Dunn failed to establish a prima facie case by a preponderance of the evidence "that his bypass was due to invidious reasons" because Dunn's assertions were "unfounded and unsupported in the record[.]"
On appeal, Dunn contends that the Commission's decision is unsupported by substantial credible evidence in the record, and consequently that the Commission's decision is arbitrary, capricious, and unreasonable. We affirm substantially for the reasons stated by the Commission in its written decision of April 10, 2014. We add the following remarks.
This court has a "limited role" in reviewing agency determinations. In re Stallworth, 208 N.J. 182, 194 (2011). To reverse the Commission's decision, this "court must find the agency's decision to be arbitrary, capricious, or unreasonable, or [ ] not supported by substantial credible evidence in the record as a whole." Ibid. (alteration in original) (citations and internal quotation marks omitted). A strong presumption of reasonableness attaches to a decision of the Commission, In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001), as we "defer to an agency's expertise and superior knowledge of a particular field[,]" Outland v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, 326 N.J. Super. 395, 400 (App. Div. 1999).
Except for hiring preferences awarded to military veterans, appointments 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[.]" N.J. Const. art. VII, § 1, ¶ 2. This principle of merit-based appointments is embodied in the Civil Service Act, N.J.S.A. 11A:4-1 to -16.
Leonetti properly exercised his discretion under the rule of three, N.J.A.C. 4A:4-4.8(a)(3), which limits the discretion of the appointing authority by permitting selection from the three highest scoring candidates. See also Local 518, N.J. State Motor Vehicle Emps. Union v. Div. of Motor Vehicles, 262 N.J. Super. 598, 603 (App. Div. 1993) (explaining that the rule of three "permits an appointing authority to select one of the three highest scoring candidates" from the examination).
The rule of three is intended to limit, not eliminate, hiring discretion. Commc'ns Workers of Am. v. N.J. Dep't of Pers., 154 N.J. 121, 129 (1998). Thus, the appointing authority may bypass a higher-ranked candidate "for any legitimate reason based upon the candidate's merit." In re Hruska, 375 N.J. Super. 202, 210 (App. Div. 2005). An applicant "who successfully passes an examination and is placed on an eligible list does not thereby gain a vested right to appointment. 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. 197, 210 (App. Div. 1984). Valid reasons for a bypass include a preference for a college degree, performance in an interview, character, prior experience, training, and employment references. In re Foglio, 207 N.J. 38, 49 (2011). There is no definitive list of valid reasons, just that they be merit-based.
The burden of proof lies with the bypassed candidate to show by a preponderance of the evidence that the appointing authority's bypass 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). 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 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. 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 446-47.
The Commission's decision is supported by substantial credible evidence. The Commission carefully evaluated the evidence and concluded that Dunn failed to credibly demonstrate the bypass was the product of nepotism, cronyism, retaliation, or any other purported improper motives or "invidious reasons." Even if Dunn made a prima facie showing, which he did not, Leonetti articulated a legitimate reason for bypassing Dunn. Troiano and Dunn were permanently appointed to the Fire Department on the same day and Leonetti recognized Troiano's merit-based superior leadership skills and rapport with other firefighters. Dunn failed to show that this non-discriminatory or non-retaliatory reason for promoting Troiano was pretextual or that the purported improper motives more likely motivated Leonetti. Furthermore, even if Troiano was more qualified than Dunn, because there were no improper motives, the Commission properly concluded that Leonetti followed the rule of three.
It is well established that this court "may not substitute its own judgment for the agency's, even though the court might have reached a different result." In re Stallworth, supra, 208 N.J. at 194 (citations and internal quotation marks omitted). The Commission's decision is supported by substantial credible evidence. We therefore conclude that the Commission's decision is not arbitrary, capricious, or unreasonable.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION