NOT FOR PUBLICATION WITHOUT THE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-4366-16T1
IN THE MATTER OF
WILLIAM PEPPARD, COUNTY
POLICE SERGEANT (PC5095N),
BERGEN COUNTY.
_____________________________
Submitted September 17, 2018 – Decided September 25, 2018
Before Judges Messano and Rose.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2017-7865.
Loccke, Correia & Bukosky, attorneys for appellant
William Peppard (Corey M. Sargeant, of counsel and
on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent Civil Service Commission (Melissa Dutton
Schaffer, Assistant Attorney General, of counsel;
Pamela N. Ullman, Deputy Attorney General, on the
brief).
PER CURIAM
William Peppard appeals from the May 3, 2017 final agency decision of
the Civil Service Commission (CSC) denying his request for retroactive
appointment as a sergeant in the Bergen County Police Department. The facts
are undisputed.
Peppard was scheduled to take the sergeant's examination on June 1, 2013,
but failed to appear. In its March 5, 2014 order, the CSC granted Peppard's
request to take a make-up examination upon his furnishing proof of his military
deployment explaining his non-appearance. The order also provided that if
Peppard passed the exam, his name would be prospectively added to the certified
list of eligibles; if appointed and upon successfully completing his working test
period, Peppard or the appointing authority could petition for a retroactive
appointment for seniority purposes. As a result of the June 2013 test, a list of
eligibles was promulgated in August 2014, and Bergen County made five
appointments from the list effective October 1, 2014.
For reasons that are not fully explained by the record, and for which
Peppard does not blame the CSC, the make-up exam was not administered until
January 2016.1 Peppard passed the exam and was ranked "2A." He was then
added to the list of eligibles set to expire on August 6, 2017. On December 8,
2016, Peppard petitioned the CSC for appointment to the list, retroactive to its
1
Peppard asserts a "consent decree" prohibited the administration of a make-up
exam until January 2016. At another point in his brief, he states without any
further explanation or support that the delay was "caused by the County."
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August 22, 2014 certification date. Peppard asserted that vacancies existed,
thereby permitting his promotion without displacing previous appointees.
In its final decision denying the petition, the CSC noted that N.J.A.C.
4A:4-1.10(c) permits a retroactive appointment "to correct an administrative
error, for administrative delay or for other good cause." Therefore, the CSC will
grant a retroactive appointment "where an employee is actually serving in and
performing the duties of a title, but, due to some error or other good cause, the
employee's attainment of permanent status was delayed or hindered[,]" or "their
name was improperly removed from or bypassed on an eligible list." In such
circumstances, to correct the "improper list removal or bypass," the CSC may
also order "the employee's appointment and a retroactive date of permanent
appointment commensurate with the date of which other candidates were
appointed" from the certified list of eligibles.
The CSC observed that it lacked any authority to tell the appointing
authority, Bergen County, "what positions to create and how to manage its
workforce." Therefore, that vacancies existed and Peppard's appointment to the
rank of sergeant would not displace others was irrelevant. The CSC noted that
the regulations "do[] not mandate that [d]epartments or jurisdictions spend funds
to make promotional appointments, and promotional appointments are not
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entitlements, but [rather] are based on factors such as the needs of the appointing
authority to fill a vacancy subject to fiscal and other considerations, which
include merit and fitness." Citing our decision in Nunan v. Department of
Personnel, 244 N.J. Super. 494 (App. Div. 1990), the CSC said Peppard "does
not possess a vested property interest in a vacant position," but only that he "will
be considered for an applicable position so long as the eligible list remains in
force." The CSC denied the petition, and this appeal followed.
The scope of our review of an agency decision is limited. Russo v. Bd. of
Trs., Police & Firemen's Ret. Sys., 206 N.J.14, 27 (2011) (citing In re Herrmann,
192 N.J. 19, 27 (2007)). The decision should be upheld unless there is a "clear
showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair
support in the record." Ibid. (quoting Herrmann, 192 N.J. at 27-28). Although
we are not bound by the "agency's interpretation of a statute or its determination
of a strictly legal issue," ibid. (quoting Mayflower Sec. Co. v. Bureau of Sec.,
64 N.J. 85, 93 (1973)), we "presume that the regulations they pass are valid
because 'agencies have the specialized expertise necessary to enact regulations
dealing with technical matters.'" In re Adoption of N.J.A.C. 7:15-5.24(b), 420
N.J. Super. 552, 564 (App. Div. 2011) (quoting N.J. State League of
Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999)).
A-4366-16T1
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Peppard argues that the CSC erred in denying his petition because had he
been on the certified list of eligibles in 2014, and given his veteran status, he
would have certainly been appointed, and the regulations permit his retroactive
appointment under these circumstances. We disagree and affirm substantially
for the reasons expressed by the CSC in its final agency decision. We add the
following brief comments.
None of the regulations cited by Peppard in his brief compels a contrary
result. For example, N.J.A.C. 4A:4-3.6(b) requires the CSC to "determine the
retroactive certification and/or appointment rights" when "the name of an
eligible is added to an existing list to correct an error made by the [CSC]," but
otherwise gives the CSC the authority to "determine the effect" of adding a name
to the list of eligibles "on certifications and prior permanent appointments."
Here, Peppard was not omitted from the 2014 list because of the CSC's error.
N.J.A.C. 4A:4-6.4A(a) governs the status of an active military employee
already "on an open competitive eligible list" who "is called to active Federal
duty prior to the list's expiration date, and who does not return from active
Federal duty until after the list's expiration." Peppard was not on an open
competitive list until he took and passed the make-up examination in 2016.
Moreover, the CSC granted Peppard the relief he was entitled to given his
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military status. N.J.A.C. 4A:4-2.9(c) states that employees on military leave are
permitted to take make-up examinations they miss while on leave if eligible. If
the examinee passes the make-up examination, his or her score will be added to
the eligible list as if they had taken the exam when it was originally
administered. Ibid. The CSC's March 5, 2014 order granted Peppard's initial
appeal and permitted him to take the make-up examination.
Peppard argues the CSC failed to consider that appointment to the list after
he passed the examination was only a Pyrrhic victory, because placement on the
existing list of eligibles provided no remedy due to "merger within the county,"
resultant "attrition," and no possibility of a future list for the title. 2 However,
the CSC considered these circumstances and correctly noted that regardless of
when he was placed on the list of eligibles, Peppard had no "vested right to
appointment." Nunan, 244 N.J. Super. at 497 (quoting In re Crowley, 193 N.J.
Super. 197, 210 (App. Div. 1984)); see also In re Foglio, 207 N.J. 38, 44 (2011)
("No right accrues to a candidate whose name is placed on an eligible list.")
(citing Crowley, 193 N.J. Super. at 210).
2
Although not fully explained in the record, it appears that the Bergen County
Police Department merged into another department, presumably the Sheriff's
Department.
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Lastly, Peppard's reliance on In re Meter Reader, Lavalette Borough
(M1344L), N.J. CSC LEXIS 172 (Feb. 22, 2012), is misplaced. There, the
employee had been serving in the title as a provisional appointment for three
years during which time the appointing authority delayed administration of an
examination for unexplained reasons. Id. at 6. Here, Peppard was not serving
provisionally when the test was administered and none of the "particular facts"
noted by the CSC in that case apply here.
Affirmed.
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