Opinion
DOCKET NO. A-0241-12T1
08-08-2014
IN THE MATTER OF NORMAN TAHAN, CITY OF CLIFTON.
John J. Segreto argued the cause for appellant Norman Tahan (Segreto Segreto & Segreto, attorneys; Mr. Segreto, of counsel and on the briefs). Jonathan F. Cohen argued the cause for respondent City of Clifton (Apruzzese McDermott Mastro & Murphy, attorneys; Frederick T. Danser, III, of counsel; Mr. Cohen, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Ostrer. On appeal from the Civil Service Commission, Docket No. 2012-1580. John J. Segreto argued the cause for appellant Norman Tahan (Segreto Segreto & Segreto, attorneys; Mr. Segreto, of counsel and on the briefs). Jonathan F. Cohen argued the cause for respondent City of Clifton (Apruzzese McDermott Mastro & Murphy, attorneys; Frederick T. Danser, III, of counsel; Mr. Cohen, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Norman Tahan appeals from the Civil Service Commission's August 2, 2012, final decision, denying his appeal from the decision of the City of Clifton to bypass him on the list of three eligible candidates for promotion to the position of fire chief. The City selected the third-ranked eligible, Vincent Colavitti, Jr., a fire captain. In doing so, the City bypassed second-ranked Tahan, a deputy fire chief, and first-ranked Michael Allora, then a fire captain. Tahan argues that he was wrongfully denied disclosure of Colavitti's personnel record and other qualifications, which were essential to enable Tahan to effectively challenge the City's decision. He also asserts that the City failed to adequately state its reasons for bypassing him, as required by In re Foglio, 207 N.J. 38 (2011).
Allora was promoted to deputy fire chief in December 2011. When he applied for the fire chief's position, he was a fire captain.
Having considered Tahan's arguments in light of the factual record and applicable principles of law, we affirm.
I.
The Commission announced on August 1, 2010, that the City was seeking applications for promotion to the position of fire chief. The examination was open to employees in the competitive division who were currently serving as a deputy fire chief, or a fire captain, and had at least an aggregate of one year of service in either of the two titles. The examination was conducted on March 31, 2011.
Shortly after taking the exam, Tahan appealed the Commission's Division of Selection Services' decision to open applications to persons holding the fire captain title, which was two levels below fire chief. In September 2011, the Commission denied that appeal as untimely, relying on N.J.A.C. 4A:2-1.1(b), which requires an appeal from an agency decision within twenty days of notice. In this case, that notice was in August 2010.
The Commission also addressed the merits of Tahan's appeal. The Commission held that it was empowered by N.J.A.C. 4A:4-2.4(d) to expand the current title scope to avoid having an incomplete list of candidates. If fire captains were not eligible to apply, Tahan as the only deputy fire chief at the time would have been the only possible candidate for the promotion. Tahan did not immediately appeal the Commission's September 2011 decision nor has he identified it in his notice of appeal.
Five candidates took the examination. As noted, the top three were Allora, Tahan, and Colavitti. Matthew Watkins, the City Manager, and John Cudworth, the City Personnel Director, interviewed the three men in October 2011, "to provide . . . insight as to what the candidates' thoughts were for the future of the department, the manner in which they would handle difficult situations, and their overall work ethic." Watkins also reviewed the applicants' personnel files to evaluate their disciplinary history and employment history. On November 11, 2011 the City promoted Colavitti and he began serving as fire chief three days later.
Watkins notified the Commission on January 24, 2012, that the City selected Colavitti, and provided a statement of reasons for bypassing Allora and Tahan. Watkins stated:
Local Fire Chiefs . . . are expected to manage all fire department operations to ensure timely, thorough and cost-effective preparation conduct, which requires initiative and the ability to lead by example. After evaluating each of the top three candidates under the appropriate title specifications, Captain Colavitti was determined to be the best candidate to fill the vacant Fire Chief position based upon his positive disciplinary record in more than twenty-one years as an employee in the City of Clifton Fire Department; the fact that he has demonstrated good judgment, initiative, and the ability to manage administrative functions in his performance as a Fire Captain; and by virtue of his exceptional performance during his oral interview. . . . Colavitti best articulated a management style suited to [our] approach to developing and managing the operations of the Fire Department, building a consensus, and offering a positive public face to the Fire Department.
Tahan appealed to the Commission on November 28, 2011. He argued that he was more qualified than Colavitti. He also renewed his argument that the position should not have been open to fire captains. He sought disclosure of Colavitti's personnel files, findings concerning Colavitti's qualifications, and minutes of meetings at which the appointment was discussed. The City objected to Tahan's discovery requests.
In its August 2, 2012, decision, the Commission affirmed the City's selection. The Commission found Watkins's statement of reasons to be sufficient. The Commission also denied Tahan's discovery requests as unnecessary and a violation of Colavitti's privacy. This appeal followed.
II.
We exercise limited review of an administrative agency decision. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009). In the absence of "a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record," the decision will be sustained. In re Herrmann, 192 N.J. 19, 27-28 (2007). In determining whether an agency action is arbitrary or capricious, we consider whether the agency's decision conforms with relevant law and is supported by substantial credible evidence in the record, and whether the agency clearly erred in reaching its conclusion. In re Stallworth, 208 N.J. 182, 194 (2011). The appellant bears the burden to demonstrate grounds for reversal. Bowden v. Bayside State Prison, 2 68 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).
We are unpersuaded that the Commission erred in denying Tahan access to Colavitti's personnel file. Commission regulations provide that "[i]ndividual personnel records . . . are not public records and shall not be released other than to the subject employee, an authorized representative of the employee, or governmental representatives in connection with their official duties." N.J.A.C. 4A:1-2.2(b).
In other contexts, we have set a high hurdle for the disclosure of a public employee's personnel records, given the employee's privacy interests. See Bayer v. Twp. of Union, 414 N.J. Super. 238, 272-74 (App. Div. 2010) (affirming trial court's order, after in camera review, denying disclosure of police personnel records in connection with false arrest and section 1983 claims); State v. Harris, 316 N.J. Super. 384, 397-98 (App. Div. 1998) (stating that where a criminal defendant seeks a police officer's personnel records, the court must balance "the public interest in maintaining the confidentiality of police personnel records and a defendant's guarantee of cross-examination under the Confrontation Clause"); Korostynski v. Div. of Gaming Enforcement, 266 N.J. Super. 549, 552-53 (App. Div. 1993) (reversing order compelling disclosure of personnel files of plaintiff's fellow employees in wrongful termination suit); State v. Kaszubinski, 177 N.J. Super. 136, 138 (Law Div. 1980) (addressing the "significant public interest in maintaining the confidentiality of police personnel records"). Before even an in camera review is conducted, the requesting party must advance "'some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw.'" Harris, supra, 316 N.J. Super. at 398 (quoting Kaszubinski, supra, 177 N.J. Super. at 141).
Here, the Commission found disclosure of Colavitti's personnel file unnecessary because Colavitti's "'positive disciplinary record'" was undisputed. The Commission found no indication in the record that the City relied on Colavitti's personnel file, other than to establish the lack of a disciplinary history. Moreover, the City's statement of reasons indicates that its primary reason for selecting Colavitti was his superior performance in an interview, not any undisclosed material in his file.
Given his managerial and supervisory duties as a deputy chief, Tahan was unusually well-suited to have access to facts pertaining to Colavitti's performance that conceivably would form a basis for a disclosure request. Nonetheless, Tahan has provided no factual predicate for the disclosure of Colavitti's personnel file.
We also reject Tahan's argument that the City provided an inadequate statement of reasons for bypassing him. The so-called Rule of Three affords an appointing authority flexibility in selecting a candidate for employment or promotion, within the context of a competitive civil service system. See Foglio, supra, 207 N.J. at 45-46. "When an appointing authority requests a list of candidates for a vacant position, the Commission will issue a certification 'containing the names and addresses of the eligibles with the highest rankings on the appropriate list.'" Id. at 44 (quoting N.J.A.C. 4A:4-4.2(a)). The regulations require a final list of three interested eligible candidates for each permanent position. N.J.A.C. 4A:4-4.2(c)(2). As long as the list is valid, the appointing authority must fill its position from a candidate on that list. Foglio, supra, 207 N.J. at 44.
However, the appointing authority need not select the highest ranked candidate of the three. The objectives of the Rule are twofold: (1) the Rule ensures "'appointments based on merit as determined by competitive examinations'"; while (2) affording the civil employer "'some discretion to accommodate other merit criteria.'" Id. at 46 (quoting In re Martinez, 403 N.J. Super. 58, 72 (App. Div. 2008)).
The discretion of appointing authorities may not be "exercised in a way inconsistent with 'merit' considerations." Ibid. (internal quotation marks and citation omitted). The Court noted that Civil Service regulations long required an appointing authority to provide a statement of reasons for choosing to bypass a higher-ranked candidate. Id. at 46-47. At the time Foglio was decided, N.J.A.C. 4A:4-4.8(b) expressly required "a statement of the reasons why the appointee was selected instead of a higher ranked eligible." See id. at 46. (internal quotation marks and citation omitted). "The purpose of that regulation is to guard against favoritism and arbitrary actions by an appointing authority and facilitate[] administrative review." Ibid. (alteration in original) (internal quotation marks and citation omitted). In other words, the statement helps assure that the appointing authority's decision "did not violate merit and fitness principles," which lie at the heart of the competitive civil service system. Id. at 41.
An aggrieved applicant generally bears the burden to establish that the appointing authority's decision is arbitrary or capricious. Id. at 47 (citing N.J.A.C. 4A:2-1.4(c)). However, where an appointing authority fails to provide a meaningful statement of reasons for bypassing a higher-ranked candidate, the burden rests on the appointing authority to justify its actions. Id. at 49 ("In the absence of such reasons, the appointment is presumably in violation of the principles of merit and fitness, and it is the City that bears the burden of justifying its action.").
The Court indicated that the statement of reasons is grounded in the constitutional provision governing competitive civil service:
Our Constitution requires all appointment or promotion decisions be "merit and fitness" based, "as far as practicable" on competitive examination. The competitive examination is the favored model because it provides an objective measure of the candidates' abilities. Where an appointing body chooses to bypass a candidate that ranked higher on a test, that decision is facially inconsistent with merit and fitness principles unless the appointing authority provides a statement of "legitimate" reasons for the bypass. Without those reasons, the [Department of Personnel] can have no certainty that the appointment process was not exercised arbitrarily and would have no basis for review.
[Id. at 48 (citations omitted).]
As the Commission noted in its decision, it amended N.J.A.C. 4A:4-4.9 to delete the explicit requirement of a statement of reasons, effective May 7, 2012. See 44 N.J.R. 137(a) (Jan. 17, 2012); 44 N.J.R. 1333(b) (May 7, 2012). The parties agree the regulatory amendment does not affect this case. We therefore need not address the extent to which constitutional principles compel a statement of reasons, absent an express statutory or regulatory mandate.
The statement of reasons must provide some insight into the appointing authority's bypass decision. See id. at 48-49. Reasons may include preference for an advanced degree, "or the performance of the applicants in the give-and-take of an interview," or on character and employment references, although "[t]he possibilities are endless." Id. at 49. The Court has required that the statement not be "conclusory" or "unrevealing." Ibid.
The Court did not, however, as Tahan apparently argues, require that the statement of reasons be directly related to the specific duties of the position.
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In Foglio, the appointing authority explained in its statement of reasons that it bypassed the plaintiff, the higher-ranked candidate, because the two lower-ranked candidates "best [met the] needs of [the Fire] Department." Id. at 42. The Court dismissed the City's reason as "boilerplate" and "equally applicable to any bypass case." Id. at 41. Noting what it deemed an "utter[] lack[] in specific explanatory language" the Court found the statement of reasons insufficient. Ibid.
Here, the City provided specific reasons for its decision to bypass Tahan. The City stated it selected Colavitti "based upon his positive disciplinary record in more than twenty-one years as an employee" of the fire department, and his demonstrated "good judgment, initiative, and . . . ability to manage administrative functions" in his prior position. The City also cited Colavitti's "exceptional performance" in an oral interview, noting he "best articulated a management style" consistent with the City's "approach to developing and managing the operations" of the department, "building a consensus, and offering a positive public face" to the department.
These are, concededly, subjective and predictive judgments. They relate to the appointing authority's assessment of personality and compatibility with managerial objectives. Such factors are difficult to measure in a competitive examination. The statement of reasons reflects that the appointing authority's decision was not made for discriminatory or invalid reasons. We shall not disturb the Commission's determination that the City's statement of reasons to bypass Tahan was sufficient.
Finally, we do not reach the merits of Tahan's renewed challenge to the decision to open the fire chief position to fire captains. Tahan argues that fire captains lack the in-title experience required of a fire chief. However, as the Commission noted in its September 2011 decision, the time to challenge that decision was within twenty days of the promotional announcement in August 2010. Tahan is barred from raising it now.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION