IN THE MATTER OF DEAN TESTA, ETC. (NEW JERSEY 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NOT FOR PUBLICATION WITHOUT THE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-1454-19

IN THE MATTER OF
DEAN TESTA, POLICE
SERGEANT (PM0861V),
ROCKAWAY TOWNSHIP.
_______________________

Argued April 13, 2021 – Decided May 3, 2021

Before Judges Yannotti and Natali.

On appeal from the New Jersey Civil Service
Commission, Docket No. 2019-1865.

Robert K. Chewning argued the cause for appellant
Dean Testa (McLaughlin & Nardi, LLC, attorneys;
Maurice W. McLaughlin and Robert K. Chewning, on
the briefs).

Thomas N. Ryan argued the cause for respondent
Township of Rockaway (Laddey, Clark & Ryan, LLP,
attorneys; Thomas N. Ryan and Nicole C. Tracy, on the
brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent New Jersey Civil Service Commission
(Jonathan S. Sussman, Deputy Attorney General, on the
statement in lieu of brief).

PER CURIAM
 Dean Testa appeals from an October 29, 2019 final decision of the Civil

Service Commission (CSC) which found that the Township of Rockaway

(Township) did not abuse its discretion in bypassing him for promotion to the

position of sergeant. We affirm.

I.

Testa began his employment as a police officer with the Township Police

Department (Department) in July 2002. Approximately sixteen years later, he

successfully completed the written examination for an open sergeant position

and was placed on the CSC promotion list. Testa ranked second out of seven

eligible candidates.

Despite his high ranking, the Township invoked the "Rule of Three" and

bypassed Testa to promote instead officers ranked first, third, and fourth on the

CSC list. On January 14, 2019, Testa appealed the Township's decision to the

CSC contending it was "arbitrary, capricious, and done with an in[s]idious

purpose." He also requested that the matter be referred to the Office of

Administrative Law (OAL) as a contested proceeding pursuant to

Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -31 and N.J.S.A.

52:14F-1 to -23.

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 In a March 18, 2019 letter to the CSC, the Township's counsel provided

the following reasons for bypassing Testa for the sergeant position in favor of

the two lower-ranked candidates:

A review of their files showed that two of the top three
candidates . . . had several years of experience in the
[Department's] Detective Bureau, conducting
investigations and follow-ups into various types of
crimes. The other candidate, Dean Testa, did not have
such experience. The Township felt that experience in
the Detective Bureau would be an asset in this position.

The experience and additional specialized training that
an officer receives when he is assigned to the Detective
Bureau is invaluable for the role of sergeant. Such
experience gives that officer insight into situations and
investigations that not only he is engaged in, but also
those officers that . . . he is assigned to supervise, and
is responsible for what might come across during their
work shifts. This includes the taking of statements,
evidentiary matters and thoroughness in reporting and
documentation. Accordingly, the Township did not
choose Mr. Testa for this position.

In response, Testa submitted a certification challenging the bases for the

Township's decision. He stated he was not told that detective experience was

necessary for advancement, or that it would have improved his chances of being

promoted. He further questioned the good faith of the Township's reliance on

the Rule of Three to bypass candidates without detective experience, as it had

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failed to rely on that principle when promoting a previous officer to sergeant

who, like Testa, lacked experience as a detective.

Testa contended the Township's reasons were pretextual. He maintained

the real reason he did not receive a promotion to sergeant was because of his

contentious relationship with the Township's previous mayor. He claimed the

mayor expressed a personal animosity toward him based on his friendship with

a Township resident who had sued the mayor, and because Testa issued the

mayor's son's girlfriend a ticket for operating an unregistered vehicle.

According to Testa, the former mayor told him at a social event that he would

never be promoted to sergeant and that even if he was not re-elected as mayor,

the next mayor would "handle it and take over."

In further support of his claim that the Township acted in a retaliatory

fashion, Testa asserted he was "wrongfully bypassed" for promotion based on

previous objections he made to Department's Chief of Police regarding certain

safety policies. Finally, he contended that his "experience, service record, and

commendations" as a police officer were superior to those of the other

candidates.

On October 29, 2019, the CSC denied Testa's appeal. In its written

decision, the CSC found no material issue of disputed fact requiring a hearing

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before the OAL, and that Testa failed to establish a prima facie case of

retaliation. The CSC noted that the Township's mayor died before the December

4, 2018 CSC list was published, and Testa failed to provide evidence that the

Township bypassed him for promotion "because of the actions of the former

mayor or . . . any other animus towards him."

The CSC similarly concluded that Testa failed to provide any evidence

connecting his disagreements with the Chief of Police with the Township's

decision. Rather, the CSC determined the Township "presented a valid business

reason for bypassing" him and noted that even accepting as true that the

Township failed to employ previously the Rule of Three, it had not waived its

entitlement to apply that doctrine to Testa's circumstance, as it was not a "use it

or lose it" right. This appeal followed.

II.

An appellate court has "a limited role" in the review of administrative

agency decisions. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). We

will not upset a determination by the CSC unless it is arbitrary, capricious, or

unreasonable or it lacks fair support in the record as a whole. Ibid. A strong

presumption of reasonableness attaches to a decision of the CSC, In re Carroll,

339 N.J. Super. 429, 437 (App. Div. 2001) (citation omitted), as we "defer to an

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agency's expertise and superior knowledge of a particular field." Outland v. Bd.

of Trs. of the Tchrs.' Pension & Annuity Fund, 326 N.J. Super. 395, 400 (App.

Div. 1999) (citation omitted).

In determining if an agency's decision is arbitrary, capricious, or

unreasonable, we consider:

(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.

[In re Carter, 191 N.J. 474, 482-83 (2007) (quoting
Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

We "may not substitute [our] own judgment for the agency's even though

[we] might have reached a different result." Ibid. (quoting Greenwood v. State

Police Training Ctr., 127 N.J. 500, 513 (1992)). We are not, however, "bound

by the agency's interpretation of a statute or its determination of a strictly legal

issue." Richardson v. Bd. of Trs., 192 N.J. 189, 196 (2007) (quoting In re

Taylor, 158 N.J. 644, 658 (1999)).

Testa first argues the CSC committed error when it denied his request to

refer his matter to the OAL because there were material facts in dispute pertinent

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to the Township's bypass decision. He maintains the Township's decision was

improperly based on implicit credibility findings, and the absence of a hearing

prevented the CSC from considering the Township's "true reasons" for

bypassing him. Testa asserts that under the circumstances, he "should have been

afforded a fact-finding hearing in order for both parties to be able to obtain and

present evidence." We disagree.

Pursuant to the APA, an administrative agency may transfer a "contested

case" to the OAL for a hearing. A contested case is defined under the APA as:

[A] proceeding, . . . in which the legal rights, duties,
obligations, privileges, benefits[,] or other legal
relations of specific parties are required by
constitutional right or by statute to be determined by an
agency by decisions, determinations, or orders,
addressed to them or disposing of their interests, after
opportunity for an agency hearing . . . .

[N.J.S.A. 52:14B-2.]

"The [APA] . . . does not create a substantive right to an administrative

hearing; it merely provides for a procedure to be followed in the event an

administrative hearing is otherwise required by statutory law or constitutional

mandate." Toys "R" Us v. Twp. of Mount Olive, 300 N.J. Super. 585, 590 (App.

Div. 1997) (citation omitted). An agency head has the exclusive authority to

determine whether a case is a contested case within the intent of the APA.

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N.J.S.A. 52:14F-7(a); N.J.A.C. 1:1-4.1; Sloan ex rel. Sloan v. Klagholtz, 342

N.J. Super. 385, 392 (App. Div. 2001).

"To establish a constitutional right to a hearing, an individual must show

that there is a genuine dispute of material fact and that he has a constitutionally

protected interest." In re Crowley, 193 N.J. Super. 197, 209 (1984) (citing

Cunningham v. Dep't of Civ. Serv., 69 N.J. 13, 18-19 (1975)). "[T]he mere

expectancy of employment [i]s not an interest of constitutional dimension . . . ."

Ibid. (citing Bd. of Regents v. Roth, 408 U.S. 564, 576-77 (1972)). Moreover,

"[n]o right accrues to a candidate whose name is placed on an eligible list." In

re Foglio, 207 N.J. 38, 44 (2011) (citing id. at 210). "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. at 210 (citations

omitted).

Testa did not have a constitutional right to a hearing as his only interest

was his expectation that he would receive a promotion to sergeant. In re

Crowley, 193 N.J. Super. at 209. Nor did Testa have the right to an evidentiary

hearing under N.J.A.C. 4A:2-1.1(d) or N.J.S.A. 52:14B-2. N.J.A.C. 4A:2-1.1(d)

provides in pertinent part that the CSC will decide an appeal "on a written

record" except when a hearing is required by law or the CSC finds "a material

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and controlling dispute of fact exists that can only be resolved by a hearing."

When there are no contested material issues of fact, the matter is not considered

a "contested case." Sloan, 342 N.J. Super. at 392 (citing N.J.S.A. 52:14B-2(b)).

Here, the CSC did not base its final decision on any credibility findings

and there was no dispute as to any material fact. Rather, the CSC relied on the

undisputed facts in the record and rejected Testa's legal conclusions. In this

regard, Testa does not dispute that the Township was permitted to consider an

applicant's prior experience as a detective when evaluating promotions to

sergeant, that the promoted officers had such experience, and that he did not.

Further, as discussed below, Testa failed to establish a prima facie case of

retaliation and did not have a right to discovery based on those unsupported

claims.

III.

Testa also contends that the Township's bypass decision was arbitrary and

capricious and was a pretext for its "retaliation and bad faith." He further argues

the CSC should have required the Township to submit certifications or sworn

statements addressing the bases for its decision rather than accept the reasons

stated in its counsel's March 18, 2019 letter. Again, we disagree.

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 The New Jersey Constitution provides in pertinent part that

"[a]ppointments and promotions in the civil service of the State, and of such

political subdivisions as may be provided by law, 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." In re Foglio, 207 N.J. at 43-44

(quoting N.J. Const. art. VII, § 1, ¶ 2). The Civil Service Act (CSA), N.J.S.A.

11A:1-1 to 12-6, and regulations promulgated pursuant to the CSA, implement

the policies underlying this constitutional provision. Id. at 44 (citing N.J.S.A.

11A:2-6(d)). The CSA and the regulations generally provide for merit-based

appointments to positions in civil service. Ibid.

If there is a vacancy in a civil service position for which an examination

is required, the CSA "provides for an examination process." Ibid. (citing

N.J.S.A. 11A:4-2). "When an examination is announced, minimum

qualifications for the position must be posted." Ibid. (citing N.J.A.C. 4A:4-2.1).

"After the examination, an eligible list is published ranking all passing

candidates by score, with special ranking rules for veterans and for tie scores. "

Ibid. (citing N.J.A.C. 4A:4-3.2).

The "Rule of Three . . . governs the hiring discretion of the appointing

authority[ and] 'permits an appointing authority to select one of the three highest

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scoring candidates from an open competitive examination.'" Id. at 45 (quoting

Loc. 518, N.J. State Motor Vehicle Emps. Union v. Div. of Motor Vehicles, 262

N.J. Super. 598, 603 (App. Div. 1993)). "[T]he appointing authority retains

discretion to bypass a higher-ranked candidate 'for any legitimate reason based

upon the candidate's merit.'" Id. at 47 (quoting In re Hruska, 375 N.J. Super.

202, 210 (App. Div. 2005)). Valid reasons for a bypass include a preference for

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

training, and employment references. Id. at 49.

Here, the record supports the CSC's determination that the Township

properly exercised its discretion under the Rule of Three when it bypassed Testa

for promotion. The Township provided the CSC with a detailed and

comprehensive explanation for its decision; namely, that he lacked critical

investigatory experience that the other two candidates possessed. As the CSC

found, Testa's undisputed lack of detective experience was a "valid business

reason" for the Township's decision. Indeed, according to the Township's March

18, 2019 letter, upon which the CSC relied, detective experience included

"additional specialized training," which the Township deemed "invaluable" for

the sergeant position.

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 Further, we reject Testa's argument that the Township's statement of

reasons contained in its counsel's March 18, 2019 letter was deficient because it

was uncertified. First, as noted, the relevant facts regarding Testa's lack of

detective experience compared to the other two applicants was not disputed.

Second, as Testa's counsel conceded at oral argument, there is no statutory or

regulatory support for the proposition that an appointing authority must certify

its detailed reasons for invoking the Rule of Three.

We also agree with the CSC that Testa failed to establish a prima facie

case of retaliation. We have previously held that the burden of proof lies with

a bypassed candidate to show by a preponderance of the evidence that the

appointing authority's 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).1

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

1
We note that Testa does not contend that the Township's decision was based
on his engagement in protected activity or discrimination against a protected class,
such as discrimination because of race, sex, or age, under the New Jersey Law
Against Discrimination, N.J.S.A. 10:5-1 to -49.
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employer meets its burden, the claimant can still prevail if the claimant shows

that the proffered reasons are pretextual or that the improper reason more likely

motivated the employer. Ibid. Further, if the claimant meets that burden, the

claimant has established a presumption of discriminatory or retaliatory intent

and the burden shifts to the employer. Id. at 445-46. The employer must then

prove by a preponderance of the evidence the action would have occurred

regardless of the discriminatory or retaliatory motive, by showing that other

candidates had better qualifications. Id. at 447.

The CSC carefully evaluated the evidence and concluded that Testa failed

to demonstrate the Township's bypass decision was the product of retaliation or

any other improper motive. Even if Testa made a prima facie showing, which

he did not, the Township articulated a legitimate reason for bypassing him. The

two lower-ranked candidates possessed important experience, deemed

significant to the Township, which Testa did not have. We are satisfied that

Testa failed to show that this non-discriminatory and non-retaliatory reason for

promoting the other two candidates was pretextual or based on an improper

motive.

We also find Testa's arguments to be speculative and conclusory. As the

CSC noted, the Township's mayor died before the December 4, 2018 CSC list

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was even published. Testa failed to present any evidence that any animus the

former mayor may have had toward him, or his right to a promotion, was

effectuated posthumously by the Township or any of its agents when relying on

the Rule of Three. In this regard, Testa's belief that the Township's new mayor

may have had some involvement in the Township's decision based on the former

mayor's comments is unsupported by the record.

We also reject Testa's claim that the Township's previous promotion of an

officer without detective experience to sergeant was evidential of the

Township's retaliatory motive. The CSC had no evidence detailing the

circumstances of that promotion or the qualifications of the previous candidate

in comparison to other applicants. Under the circumstances, the CSC did not

abuse its discretion in concluding that, even assuming the Township did not

previously employ the Rule of Three in that case, it had not waived its right to

rely on that principle here.

Finally, Testa also failed to introduce any evidence, apart from his

unsupported attestations, that his prior objections to the Chief of Police played

any role in the Township's decision. In fact, the record supports the conclusion

that the Township considered Testa a valued member of the Department and

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reveals not a single adverse and retaliatory employment action taken by the

Township during his now eighteen-year employment history.

As the CSC's decision was supported by the record and consistent with

applicable law, we conclude that it did not abuse its discretion when it affirmed

the Township's decision to bypass Testa for promotion to sergeant without the

need for an evidentiary hearing. To the extent we have not addressed any of

Testa's remaining arguments, it is because we have concluded they are of

insufficient merit to warrant extended discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Affirmed.

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