IN THE MATTER OF DEREK SLIMMER, CORRECTION LIEUTENANT (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NOT FOR PUBLICATION WITHOUT THE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-3911-16T3

IN THE MATTER OF DEREK
SLIMMER, CORRECTION
LIEUTENANT (PS60721),
DEPARTMENT OF CORRECTIONS.
__________________________________

Argued October 30, 2018 – Decided November 28, 2018

Before Judges Hoffman and Firko.

On appeal from the New Jersey Civil Service
Commission, Docket No. 2017-2342.

Donald C. Barbati argued the cause for appellant Derek
Slimmer (Crivelli & Barbati, LLC, attorneys; Donald
C. Barbati, on the brief).

Pamela N. Ullman, Deputy Attorney General, argued
the cause for respondent Civil Service Commisssion
(Gurbir S. Grewal, Attorney General, attorney; Melissa
Dutton Schaffer, Assistant Attorney General, of
counsel; Pamela N. Ullman, on the brief).

PER CURIAM

Appellant Derek Slimmer appeals from a final decision of the Civil

Service Commission (Commission) denying his appeal of the decision to bypass
him on the eligible list for the position of Correction Lieutenant. After

reviewing the record and applicable law, we affirm.

The facts are undisputed. Appellant was employed by the New Jersey

Department of Corrections (DOC) as a Correction Sergeant at Bayside State

Prison. He was ranked 108th on the promotional list for Correction Lieutenant

that was posted on September 6, 2012, and open until September 5, 2015. On

August 25, 2014, appellant received a Final Notice of Disciplinary Action that

penalized him with a thirty-day suspension. The record before us is silent as to

the circumstances or the charges levelled against him.

He challenged the suspension and, after the case was transferred to the

Office of Administrative Law (OAL), a settlement agreement was entered on

March 17, 2016. As part of the agreement, the charges were withdrawn and

purged from his personnel file. His thirty-day suspension was vacated and

converted to a letter of counseling. He was awarded back pay, as he already

served the suspension. The DOC agreed not to assert any position in respect of

any appeal filed by appellant pertaining to "a promotions list." The settlement

was approved and finalized on June 30, 2016, by the OAL.

Almost four months later, on October 24, 2016, appellant notified the

DOC that the disciplinary charges against him were withdrawn. He requested a

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promotion, back pay, and benefits associated with the Correction Lieutenant

position. On December 30, 2016, the DOC responded that the promotional list

expired on September 5, 2015, while his disciplinary charges were still pending,

and denied his request. On January 23, 2017, appellant filed his appeal with the

DOC. In a written opinion dated March 28, 2017, the Commission determined

his appeal was untimely.

Appellant filed a notice of appeal with this court on May 11, 2017, because

it was unclear whether the March 28, 2017 letter constituted a final agency

decision. Therefore, we requested a letter of explanation as to why the

Commission's letter should be deemed final and appealable as of right pursuant

to Rules 2:2-3 and 2:5-1. Appellant submitted his letter of explanation on June

7, 2017, and on August 1, 2017, the Commission filed a motion to remand the

matter, which was granted on September 13, 2017. We ordered a final decision

to be issued within thirty days, and we denied appellant's cross-motion for the

imposition of counsel fees and costs against the Commission.

The Commission denied the appeal on October 10, 2017. Notwithstanding

the untimeliness of the appeal, the Commission found the decision to bypass

appellant was proper pursuant to the Rule of Three, and concluded that he was

not entitled to retroactive appointment, back pay, or benefits.

A-3911-16T3
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 This appeal follows in which appellant raises the following issues:

POINT I

THE COMMISSION ERRED IN DENYING
SERGEANT SLIMMER'S APPEAL OF THE BYPASS
OF HIS NAME ON THE CORRECTION
LIEUTENANT ELIGIBLE LIST.

POINT II

SERGEANT SLIMMER'S UNDERLYING APPEAL
TO THE CIVIL SERVICE COMMISSION WAS
TIMELY.

POINT III

THE SETTLEMENT AGREEMENT BETWEEN
SERGEANT SLIMMER AND THE NJDOC
REGARDING THE DISCIPLINE ORIGINALLY
IMPOSED AGAINST HIM RENDERED THE
REASONING BEHIND HIS BYPASS ON THE
ELIGIBLE LIST MOOT. AS SUCH, THE
COMMISSION ERRED IN DENYING SERGEANT
SLIMMER'S APPEAL AND AFFIRMING THE
NJDOC'S DETERMINATION TO BYPASS HIS
NAME ON THE ELIGIBLE LIST.

POINT IV

THE COMMISSION'S RELIANCE UPON THE
"RULE OF THREE" IN DENYING SERGEANT'S
SLIMMER'S APPEAL WAS LIKEWISE
ERRONEOUS.

We find no merit to these contentions.

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 I.

This court has a "limited role" in reviewing agency determinations. In re

Stallworth, 208 N.J. 182, 194 (2011) (citations omitted). 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 Tukes, 449 N.J.

Super. 143, 156 (App. Div. 2017) (citation omitted), 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) (citation omitted).

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.

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 Appellant's suggestion in Point I that the Commission erroneously found

that his appeal was untimely because he was not provided with formal

notification of his bypass and that the appeal of his disciplinary charges was

pending at the OAL when the eligibility test expired is unpersuasive. N.J.A.C.

4A:4-6.6(a)(1) requires an appeal to be filed within twenty days after appellant

knew or reasonably should have known of the decision or action being appealed

from. Here, appellant concedes that he did not file his appeal until January 23,

2017, after writing to the DOC on October 24, 2016, that he was "unjustifiably

bypassed." There is no justification for his missing the twenty-day filing period.

Relying upon the June 30, 2016 date when his disciplinary charges were

withdrawn and the settlement agreement was finalized also does not support

appellant's argument.

In its Final Administration Action, the Commission duly stated: "The

purpose of the time limits is not to eliminate or curtail the rights of the appellant,

but to establish a threshold of finality." We agree.

II.

Turning to Point II of appellant's brief asserting that his appeal was timely,

we disagree. Since the exact date of appellant's bypass for a promotion was not

stated, the Commission gave him the benefit of the doubt by using the date the

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eligibility list expired, on September 5, 2015, as the date for calculating the

appeal filing deadline. No prejudice resulted to him.

Appellant further contends that even if his appeal was untimely filed, he

should be granted an extension. N.J.A.C. 4A:1-1.2(c) authorizes the

Commission to relax the rules for "good cause" shown. A valid excuse for the

delay, and a showing that it was reasonable, is required. See Appeal of Syby,

66 N.J. Super. 460, 464 (App. Div. 1961) (holding that counsel preoccupied with

another litigation was not sufficient cause to warrant an extension for an appeal).

The length and reason for the delay are factors to be considered. Knorr v. Smeal,

178 N.J. 169, 181 (2003) (citing Lavin v. Hackensack Bd. of Educ., 90 N.J. 145,

152 (1982)).

Defendant does not offer any reason as to why he missed the filing

deadline, and merely claims that the Commission's determination was erroneous

and should be reversed. We are not persuaded.

III.

In his third point, appellant argues that the disciplinary action was the only

reason behind him being bypassed, and confirmation of the settlement

agreement rendered that reasoning moot. The pertinent section of the settlement

agreement provides: "The [DOC] shall amend [a]ppellant's personnel records

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to conform to the terms of the settlement . . . the [DOC] agrees to take no position

with regard to any appeal filed by [a]ppellant to the [Commission] with respect

to a promotions list."

Saliently, the eligibility list expired on September 5, 2015, long before

appellant's disciplinary charges were converted to a settlement on June 30, 2016.

The December 30, 2016 DOC correspondence to appellant informed him of a

newly created promotional list for the Correction Lieutenant position to fill

vacancies that would expire on September 8, 2018. Instead of applying, he

chose to appeal.

Appointing authorities are permitted to consider an individual's pending

or concluded disciplinary charges as a basis for bypassing an applicant, absent

any unlawful motive. In re Foglio, 207 N.J. 38, 47 (2011); see also In the Matter

of Michael Cervino (MSB, decided June 9, 2004); In the Matter of Michael

Boylan (MSB, decided October 22, 2003) (holding it was within the appointing

authority's discretion to bypass appellant due to two discrimination complaints

against him, which could have resulted in disciplinary charges after being

transferred to the OAL for a hearing); In the Matter of Gary R. Kern, et al. (MSB,

decided October 11, 2000) (holding that appellant was not entitled to retroactive

A-3911-16T3
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appointment when he was initially bypassed by the appointing authority due to

pending disciplinary charges that were later dismissed).

Appellant does not point to any unlawful motive on the part of the DOC.

The Commission's consideration of appellant's disciplinary sanctions while the

list was active was, therefore, proper. The Commission rightfully bypassed him

for the position at that time, and did not fail to uphold the settlement agreement.

IV.

Turning to the last argument raised in Point IV, we conclude that the

Commission properly exercised its 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 Commc'ns

Workers of Am. v. New Jersey Civ. Serv. Comm'n, 234 N.J. 482, 524-25 (2018)

(citations omitted) (explaining that the Rule of Three permits an appointing

authority "to select one of the three highest scoring candidates from the

examination"); see also N.J.S.A. 11A:4-8 and 5-7.

The Rule of Three is intended to limit, not eliminate, hiring discretion.

Foglio, 207 N.J. at 46 (citing 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."

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In re Hruska, 375 N.J. Super. 202, 210 (App. Div. 2005) (citation omitted). 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) (citations omitted). Valid reasons for a bypass include a preference

for a college degree, performance in an interview, character, prior experience,

training, and employment references. Foglio, 207 N.J. at 49.

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 either the proffered reasons are pretextual, or that the improper reason more

likely motivated the employer. Ibid.

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 Appellant suggests that the certification of Will Toolen, President of the

New Jersey Law Enforcement Supervisors Association, states that the DOC does

not apply the Rule of Three in selecting candidates per se, and its practice is to

"promote straight down the list of individuals eligible for appointment."

Moreover, the Commission stated, "the fact that the appointing authority did not

previously bypass candidates did not preclude it from doing so in the instant

matter." Appellant's claim is unaccompanied by factual support, giving us no

basis to ignore the Legislative mandate regarding the longstanding use of the

Rule of Three.

In Foglio, the Supreme Court addressed the entitlement of candidates

eligible for promotion, stating:

No right accrues to a candidate whose name is placed
on an eligible list. In re Crowley, 193 N.J. Super. 197,
210 (App. Div. 1984). ("[A] person 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." Ibid. "[T]he best that
can be said" of a candidate on an eligible list is that he
has "a right to be considered for appointment." Nunan
v. N.J. Dep't of Pers., 244 N.J. Super. 494, 497 (App.
Div. 1990).

[Foglio, 207 N.J. at 44-45.]

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 We reject appellant's arguments. He had no vested right to appointment

because of his placement on an eligibility list, and he failed to provide a legal

basis supporting entitlement to the remedy of a retroactive date of appointment.

Therefore, we cannot conclude the Commission's final decision was "arbitrary,

capricious, or unreasonable, or that it lacks fair support in the record . . . ."

Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9

(2009).

Affirmed.

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