Opinion
DOCKET NO. A-1937-14T3
06-21-2016
WAYNE R. KUBS and ALLYSON KUBS, Plaintiffs-Appellants, v. BOROUGH OF RUTHERFORD, RUTHERFORD MAYOR JOSEPH DESALVO, individually and in his official capacity; RUTHERFORD COUNCIL MEMBER KIM BIRDSALL, individually and in her official capacity; RUTHERFORD COUNCIL MEMBER RAY TETRO, individually and in his official capacity; RUTHERFORD COUNCIL MEMBER FRANK NUNZIATO, individually and in his official capacity; RUTHERFORD COUNCIL MEMBER JACK MANZO, individually and in his official capacity; RUTHERFORD COUNCIL MEMBER MARK O'CONNOR, individually and in his official capacity; RUTHERFORD POLICE CHIEF JOHN RUSSO, individually and in his official capacity; and CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY, Defendants-Respondents.
Catherine M. Elston argued the cause for appellants (C. Elston & Associates, LLC, attorneys; Ms. Elston, of counsel and on the brief; Cathlene Y. Banker, on the briefs). Eric M. Bernstein argued the cause for respondents Borough of Rutherford, Rutherford Mayor Joseph DeSalvo, Councilmembers Birdsall, Sartori, Tetro, Nunziato, Manzo, O'Connor and Police Chief Russo (Eric. M. Bernstein & Associates, LLC, attorney; Dominic P. DiYanni, of counsel and on the brief). Pamela N. Ulman, Deputy Attorney General, argued the cause for respondent New Jersey Civil Service Commission (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Ullman, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer, Haas and Manahan. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7617-14. Catherine M. Elston argued the cause for appellants (C. Elston & Associates, LLC, attorneys; Ms. Elston, of counsel and on the brief; Cathlene Y. Banker, on the briefs). Eric M. Bernstein argued the cause for respondents Borough of Rutherford, Rutherford Mayor Joseph DeSalvo, Councilmembers Birdsall, Sartori, Tetro, Nunziato, Manzo, O'Connor and Police Chief Russo (Eric. M. Bernstein & Associates, LLC, attorney; Dominic P. DiYanni, of counsel and on the brief). Pamela N. Ulman, Deputy Attorney General, argued the cause for respondent New Jersey Civil Service Commission (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Ullman, on the brief). PER CURIAM
By leave granted by our Supreme Court, plaintiffs Wayne and Allyson Kubs (collectively plaintiffs) appeal from the Law Division's November 18, 2014 order transferring this matter to the Civil Service Commission (the Commission) pursuant to Rule 1:13-4(a), and dismissing plaintiffs' complaint without prejudice. We affirm substantially for the reasons set forth in the thorough written opinion rendered by Judge Lisa Perez Friscia.
Because plaintiffs share the same surname, we refer to them individually by their first names. In doing so, we intend no disrespect.
I.
The parties are fully familiar with the procedural history and facts of this case as fully set forth in Judge Perez Friscia's opinion. Therefore, a brief summary will suffice here.
Wayne is a military veteran who successfully passed an open competitive written examination to become a police officer in the Borough of Rutherford (the Borough). He ranked third on the list of successful candidates. The two individuals ahead of him on the list were also veterans. The Commission certified the list on May 12, 2014.
Borough officials, including the mayor, the police chief, and council members, interviewed the candidates on the certified list for six available police officer positions. Wayne asserted that during his interview, the Borough police chief told him that the police "department did not need people acting like military personnel."
After the interviews were concluded, the Borough council considered the candidates at a June 25, 2014 meeting. The council did not appoint Wayne and the other two veterans as police officers. However, the Borough mayor's nephew, who was ranked thirteenth on the list, was appointed to one of the six positions. The mayor did not participate in the interview of his nephew and recused himself when the council considered him. However, the mayor did participate in the council's consideration of the competing candidates. Wayne also asserted that the council appointed two other lower ranked candidates who were related to Borough police officers.
As part of the evaluation process, the Borough conducted criminal background checks of all of the candidates. During this process, the Borough alleged it learned that Wayne had failed to report two speeding tickets he received in 2010, and an "incident" that occurred approximately twenty-two years prior to Wayne's application, "that resulted in neither an arrest nor charge." On August 27, 2014, the Commission notified Wayne that he had been removed from the certified list for "falsification."
On August 7, 2014, Wayne filed a verified complaint in lieu of prerogative writs and order to show cause against the Borough, the mayor, the police chief, various other Borough officials, and the Commission. In count one of this two-count complaint, Wayne asserted that the appointments of the six other candidates violated a provision of the Civil Service Act, N.J.S.A. 11A:5-6, which "requires the hiring of all disabled and non-disabled veterans in order of ranking on a civil service list." In count two, Wayne alleged that the mayor and the police chief had conflicts of interests that should have barred them from participating in the appointment process under the Local Government Ethics Law (LGEL), N.J.S.A. 40A:9-22.1 to -22.25, common law conflict of interest principles, and a Borough ordinance.
As relief, Wayne sought an order: (1) "[d]eclaring null and void the selection/appointment" of the June 25, 2014 appointees; (2) declaring the council's offers of employment to the appointees "null and void and without effect"; (3) enjoining the mayor and the police chief "from participating in the selection/recommendation/appointment process of police candidates from [the list] due to a conflict of interest and appearance of impropriety"; and (4) "[r]estoring [Wayne] to the eligibility list for police officer and ordering his appointment to the position of Borough police officer in accordance with those State laws pertaining to veterans' preference[.]"
The Borough defendants filed opposition to the order to show cause. After oral argument on August 29, 2014, the judge ordered the parties to submit supplemental briefs.
Prior to the next return date, however, Wayne filed an amended complaint, which added Allyson as a plaintiff, together with two additional counts. In count three of the new complaint, plaintiffs asserted that the Borough defendants violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by "subject[ing Wayne] to unwelcome and discriminatory conduct because of his status as a veteran." In count four, plaintiffs alleged that the Borough defendants violated the LAD by "treat[ing Wayne] disparately and disfavorably in the terms and conditions of employment." Plaintiffs sought monetary damages on the new counts, and "a declaration that the removal" of Wayne from the list "was [pretextual] and, therefore, unlawful, and directing the Commission" to reinstate Wayne to the list.
On October 1, 2014, Judge Perez Friscia converted plaintiffs' order to show cause to a motion. The Commission and the Borough defendants moved to dismiss the amended complaint, or transfer the matter to the Commission under the doctrine of primary jurisdiction. Following oral argument, the judge rendered a twenty-three page written decision transferring the matter to the Commission pursuant to Rule 1:13-4(a).
In her opinion, Judge Perez Friscia found that the Commission had primary jurisdiction to determine whether Wayne had been incorrectly removed from the list for "falsification." She also ruled that the Commission had the jurisdiction to determine whether the appointment process was tainted by conflicts of interest on the part of Borough officials, or by other factors, and to grant plaintiffs the specific relief they sought -- a declaration that the appointments were null and void.
In concluding that the Commission had primary jurisdiction over the matter, the judge applied the four-part test that we established in Muise v. GPU, Inc., 332 N.J. Super. 140, 161 (App. Div. 2000). As recently described by our Supreme Court, this test requires consideration of the following factors:
1) whether the matter at issue is within the conventional experience of judges; 2) whether the matter is peculiarly within the agency's discretion, or requires agency expertise; 3) whether inconsistent rulings might pose a danger of disrupting the statutory scheme; and 4) whether prior application has been made to the agency.
[Estate of Kotsovska ex rel. Kotsovska v. Liebman, 221 N.J. 568, 588 (2015) (quoting Magic Petroleum Corp. v. Exxon Mobil Corp., 218 N.J. 390, 407 (2014)).]
With regard to the first factor, the judge found that "violations of the Civil Service Act [("the Act") N.J.S.A. 11A:1-1 to 12-6,] are not within the conventional experience of [Law Division] judges[.]" Instead, "[t]he Commission routinely hears question[s] of ineligibility and challenges to the civil service list in denying preferential placement for veterans."
Turning to the second factor, the judge observed that the issue of Wayne's "removal from the civil service list [was] peculiarly within the Commission's discretion and requires its expertise." The judge noted that "the Commission has been given the jurisdictional authority to address civil service candidates' eligibility, veteran status, and the process of how the list was created and validated." The Commission also had the authority to review and "address ethical challenges to how the removal and appointment process was conducted."
The judge next found that the Commission was "in the best position to ensure consistent rulings when addressing violations of the Act based on its expertise." In finding that this factor weighed in favor of transferring the matter to the Commission, the judge stated that "[p]laintiffs' claim alleging a violation of [the Act] is intimately connected with the Commission's role in supervising all aspects of appointments and removals from employment in the civil service." Thus, "[i]f other candidates from [the Borough's] civil service list appealed or were to appeal, inconsistent rulings and relief could transpire."
After initiating his action in the Law Division, Wayne filed an appeal with the Commission challenging his removal from the eligibility list. Because this appeal was filed after Wayne's Law Division complaint, the judge did not give this fourth factor great weight in her analysis.
In making her decision to transfer plaintiffs' civil service claims to the Commission, the judge noted that Allyson had been added as a party. However, the judge found that Allyson's allegations of "ethical violations" could "become moot or limited based on the Commission's decisions" following its review of the appointment process.
Again applying the primary jurisdiction doctrine, Judge Perez Friscia "decline[d] original jurisdiction" over plaintiffs' LGEL claim. As noted above, the Commission had the authority to review plaintiffs' assertion that the appointments should be declared void because of conflict of interest issues. Moreover, the judge found that plaintiffs should bring the LGEL claim before the Local Finance Board, which had the statutory "power to hear and review complaints with regard to possible violations under the" LGEL.
Finally, the judge explicitly stated that she was dismissing plaintiffs' complaint without prejudice. Thus, "[u]pon the conclusion of the agency matters," the judge ruled that "plaintiffs may file to reinstate any unresolved claims in their complaint" in the Law Division. This appeal followed.
II.
On appeal, plaintiffs argue that the trial judge erred by concluding that the Commission and the Local Finance Board had primary jurisdiction over their civil service and LGEL claims. Thus, they assert the judge should have retained jurisdiction of the entire complaint instead of transferring the matter to the Commission pursuant to Rule 1:13-4(a). We disagree.
Plaintiffs also contend that we should exercise our original jurisdiction under Rule 2:10-5 in order to decide their conflict of interest claims. However, "we exercise our original factfinding authority under Rule 2:10-5 only 'with great frugality and in none but a case free of doubt.'" Bacon v. N.J. State Dept. of Educ, 443 N.J. Super. 24, 38 (App. Div. 2015) (quoting Tomaino v. Burman, 364 N.J. Super. 224, 234-35 (App. Div. 2003)), certif. denied, 224 N.J. 281 (2016). Because the record at this stage of the proceedings, where plaintiffs have not yet proceeded before the Commission, "is wholly inadequate[,]" we reject plaintiffs' contention on this point. Ibid. --------
In pertinent part, Rule 1:13-4(a) provides that:
if any court is without jurisdiction of the subject matter of an action or issue therein . . . , it shall, on motion or on its own initiative, order the action, with the record and all papers on file, transferred to the proper court, or administrative agency, if any, in the State. The action shall then be proceeded upon as if it had been originally commenced in that court or agency.The purpose of this rule is "to avoid dismissal of [an] action on jurisdictional grounds" where a case has been filed in a court when it instead should have been filed in another court or an administrative agency. Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 1:13-4 (2016); see, e.g., Glynn v. Park Tower Apartments, Inc., 213 N.J. Super. 357, 363 (App. Div. 1986) (recognizing that "a case over which an agency has jurisdiction which has been filed with a court ordinarily should be transferred to the agency" under Rule 1:13-4(a)).
At times, certain regulatory matters relevant to a dispute in a civil action, even if the trial court has subject matter jurisdiction over other aspects of that civil case, should be transferred to an administrative agency under concepts of primary jurisdiction. The doctrine of primary jurisdiction, and the related doctrine requiring litigants to first exhaust their administrative remedies, advances several important objectives. First, these principles "ensure[] that claims will be heard, as a preliminary matter, by [an administrative] body possessing expertise in the area." City of Atlantic City v. Laezza, 80 N.J. 255, 265 (1979). Second, these principles "allow[] the parties to create a factual record [before the agency] necessary for meaningful appellate review." Ibid. Third, an appropriate transfer to an administrative agency ensures that the agency's regulations are interpreted and applied consistently. Richardson v. Standard Guar. Ins. Co., 371 N.J. Super. 449, 475 (App. Div. 2004). Finally, the agency's final "decision may satisfy the parties and thus obviate resort to the courts." Laezza, supra, 80 N.J. at 265.
Nevertheless, as the Supreme Court has also instructed, the application of these principles for transferring certain matters to an administrative agency is not absolute. Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 561 (1979). For example, our courts have recognized exceptions "when only a question of law need be resolved; when the administrative remedies would be futile; when irreparable harm would result; when jurisdiction of the agency is doubtful; or when an overriding public interest calls for a prompt judicial decision." Ibid. (internal citations omitted).
As noted in our earlier discussion of Judge Perez Friscia's decision, courts should consider the Muise four-factor test in determining whether it is appropriate to transfer an entire case or specific issues to an administrative agency. As the Supreme Court recently confirmed in Estate of Kotsovska, "[t]he decision to invoke the doctrine of primary jurisdiction rests within the sound discretion of the [trial] court." Estate of Kotsovska, supra, 221 N.J. at 588 (second alteration in original) (quoting Nordstrom v. Lyon, 424 N.J. Super. 80, 99 (App. Div. 2012)). Thus, the trial judge's decision "should not be disturbed on appeal unless the decision was 'made without rational explication, inexplicably departed from established practices, or rested on an impermissible basis.'" Ibid. (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
Applying these principles, we discern no basis for disturbing Judge Perez Friscia's decision to transfer this matter to the Commission under the doctrine of primary jurisdiction. Plaintiffs' complaint named the Commission as a defendant; specifically pled violations of the civil service law; and requested relief, such as Wayne's restoration to the list and a declaration that the six appointments the Borough made were "null and void," that was plainly within the Commission's jurisdiction to afford them. See Melani v. County of Passaic, 345 N.J. Super. 579, 590 (App. Div. 2001) (recognizing that the Commission is in the best "position by virtue of its statutory status, administrative competence, and regulatory expertise to adjudicate" a plaintiff's "job rights and the remedy, if any, to which [he or] she may be entitled").
Similarly, the judge did not abuse her discretion by transferring plaintiffs' claim under the LGEL to the Commission and, if necessary, to the Local Finance Board. The Commission represented that it would consider plaintiffs' contention that impermissible conflicts of interest on the part of certain Borough officials tainted the appointment process, and determine whether the six appointments the council made should be declared invalid. In addition, the Local Finance Board has "the overall responsibility of interpreting and enforcing the" LGEL. Abraham v. Twp. of Teaneck Ethics Bd., 349 N.J. Super. 374, 379 (App. Div. 2002). Therefore, the judge properly ruled that plaintiffs could also bring their LGEL claim to the Local Finance Board for review.
As we noted in Muise, "[w]hen a claim presents some issues that are within an agency's special expertise and others which are not, the proper course is for the court to refer the former to the agency, and then to apply the agency's findings and conclusions to its determinations of the remaining issues." Muise, supra, 332 N.J. Super. at 161. The judge followed this principle here by dismissing plaintiffs' complaint without prejudice. Thus, after the Commission and, if necessary, the Local Finance Board, complete their review, plaintiffs may return to the Law Division to reinstate any remaining claims, including their assertion that the Borough defendants violated the LAD and common law conflict of interest principles during the appointment process.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION