Opinion
DOCKET NO. A-3516-11T4
09-06-2013
ALLEN SOLIMANDO, Plaintiff-Appellant, v. MAYOR AND COUNCIL OF THE BOROUGH OF EMERSON; THE POLICE DEPARTMENT OF THE BOROUGH OF EMERSON, Defendants-Respondents, and MICHAEL SAUDINO, individually and as Chief of Police of the Borough of Emerson, DONALD ROSSI, newly promoted police captain, and GEORGE BUONO, as newly promoted police lieutenant, Defendants.
Law Offices of Michael J. Beatrice, P.C., attorney for appellant. Law Offices of Scott Mooney, L.L.C., attorney for respondent
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5105-09.
Law Offices of Michael J. Beatrice, P.C., attorney for appellant.
Law Offices of Scott Mooney, L.L.C., attorney for respondent PER CURIAM
In this action in lieu of prerogative writs, plaintiff appeals from a July 25, 2011 order granting partial summary judgment to defendants upholding George Buono's promotion to Lieutenant; and a February 6, 2012 order of no cause of action entered after a bench trial upholding Donald Rossi's promotion to Captain. We affirm.
In June 2009, plaintiff filed a six-count complaint. The February 6, 2012 order resolved the first and fourth counts pertaining to Rossi; the July 25, 2011 order resolved the second count pertaining to Buono; and the parties settled the fifth and sixth counts prior to trial.
In August 2008, the Borough of Emerson (the Borough) attempted to promote police officers to the ranks of Captain and Lieutenant. The Mayor and Council, however, determined that none of the five candidates satisfied the then-existing educational criteria, and canceled the process. As a result, they amended the requirements for these promotions and resumed their promotion efforts.
In March 2009, the Mayor and Council introduced Ordinance Number 1368-09, which provided that "police officers who have been members of the department continuously since January 1, 2001, [and who] possess[] . . . a minimum [of seven] years progressive supervisory and management experience in law enforcement[,] shall be deemed to satisfy the college/university credit requirement." On March 17, 2009, the Mayor and Council adopted Ordinance Number 1368-09, effective March 20, 2009. On April 14, 2009, the Mayor and Council introduced Ordinance Number 1370-09, which eliminated the requirements for competitive written examinations for the rank of Lieutenant, and adopted the ordinance on May 5, 2009.
On April 14, 2009, the Council interviewed a number of candidates and voted unanimously to promote Rossi to the position of Captain. On May 19, 2009, the Council interviewed candidates and promoted Buono to the position of Lieutenant. In June 2009, plaintiff filed his complaint and challenged these promotions.
In May 2011, defendants filed a summary judgment motion and plaintiff cross-moved for the same relief. Defendants asserted that the promotions were in accordance with the newly-adopted ordinances. Plaintiff argued in general that the promotions occurred before the effective date of the ordinances and were therefore invalid because the Council failed to apply the preexisting criteria. The judge concluded that the Mayor and Council complied with the requirements of N.J.S.A. 40:49-2 (regarding the passage of municipal ordinances) and determined that the ordinances governed the Rossi and Buono promotions. On July 25, 2011, the judge granted defendants' motion in part by upholding the Buono promotion to Lieutenant, but found disputed facts regarding the Rossi promotion to Captain, denied plaintiff's cross-motion, and issued a fifteen-page decision. Regarding Rossi, the judge stated that
the [c]ourt finds that there are issues of fact regarding what written submissions, if any, have been submitted to the Mayor and Council and whether it considered any such written submissions. . . . It is unclear . . . whether the Mayor and Council considered the promotion to Captain in accordance with Ordinance 1368-09, which required competitive written submissions. Moreover, nowhere in Ordinance 1368-09 did the [c]ourt find the definition of further explanation of what constituted a "competitive written submission. . . ."The judge then noted, regarding Buono's promotion to Lieutenant, that "the requirement for competitive examinations contained in Ordinance 1368-09 . . . has been restricted to [the] rank of Sergeant only by Ordinance 1370-09 . . . , and, thus, no longer applied to the promotion to Lieutenant." In upholding the Buono promotion, the judge concluded that Buono's seniority, leadership, and performance, could be examined orally, and that plaintiff failed to demonstrate that the promotion to Lieutenant was contrary to law, unjustified by any reasonable facts, or was otherwise arbitrary.
On two days in October 2011, the judge conducted a trial regarding Rossi's promotion to Captain. Plaintiff maintained that the Mayor and Council promoted Rossi unreasonably by failing to employ objective criteria upon which to evaluate Rossi's qualifications. Defendant contended that Ordinance 1368-09 listed three criteria for evaluating a promotion to Captain: an interview to review leadership, performance, seniority, and education history; a leadership evaluation; and an education requirement.
The judge found that the Mayor and Council fulfilled the first criteria by asking each of the candidates the following questions relating to leadership, performance, seniority, and education:
1. Please define the role of Captain within the Emerson Police department as it relates to chain of command.The judge indicated that the Council met the second criterion by debating each candidate's responses after the conclusion of each interview. The Council satisfied the third criterion by accepting Rossi's testimony that he accumulated more than seven years' progressive supervisory and management experience in law enforcement. Regarding the issue of "competitive written submissions," the judge said that
2. Please review for us the past experiences, either as a police officer or in any other capacity, that you feel qualify you to be a police Captain.
3. How would you handle the issue of "excessive" absence due to illness?
4. Could you describe for us your long term vision of the Emerson police department?
5. Can you offer any suggestions to the [Mayor and Council] for ways to reduce costs thr[ough] creative scheduling of shift coverage?
each participant . . . was told to submit a letter of interest, resume, and any supporting documents so each [C]ouncil member could review his credentials. The record shows that . . . Administrator Scarpa sent a memorandum to Police Chief Saudino asking that "all qualified and interested individuals submit a cover letter/letter of interest, resume[,] and any supporting documents. . . ." Also[,] . . . Emerson Police Department issued a memorandum outlining the standard for promotion to Captain. The memorandum outlined the standards contained in . . . Ordinance 1368-09 and advised candidates to submit letters of interest . . . . Although there is no definition of "competitive written submissions" in the police rules, it was established at trial that the Mayor and Council, the Borough Employees, and the participating [o]fficers, all understood competitive written submissions to mean a candidate's resume and any supporting documentation that he wanted to submit. . . .The judge concluded that the Mayor and Council followed the established criteria for the promotion process for Captain, and that the Borough's actions were not arbitrary, capricious, or unreasonable. The judge then entered the February 6, 2012 order of no cause of action for the reasons that he expressed in his lengthy written decision dated January 13, 2012. This appeal followed.
On appeal, plaintiff argues that the judge erred by (1) failing to invalidate the Rossi promotion as arbitrary; and (2) granting summary judgment to defendants upholding the Buono promotion.
In order to reverse an agency's judgment, we "must find [its] decision to be arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole." In re Stallworth, 208 N.J. 182, 194 (2011); cf. Riya Finnegan LLC v. Twp. Council of Twp. of S. Brunswick, 197 N.J. 184, 204 (2008) (noting that an ordinance's "presumption of validity can be overcome only by a showing that the ordinance is clearly arbitrary, capricious[,] or unreasonable, or plainly contrary to fundamental principles of zoning or the [zoning] statute." (internal quotation marks omitted)); Sogliuzzo v. Hoboken, 62 N.J. Super. 243, 249-50 (App. Div. 1960) (applying the "arbitrary, capricious[,] or unreasonable" standard to a case involving a police promotion from a list of Civil Service policemen eligible for promotion). In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 564 (2012). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
After a thorough review of the record and consideration of the controlling legal principles, we conclude that plaintiff's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm the decision to uphold Buono's promotion to Lieutenant for the reasons the judge expressed in his July 25, 2011 written opinion. We also affirm the order of no cause of action for the reasons the judge expressed in his written opinion dated January 13, 2012.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION