In re Pierce, DOCKET NO. A-0892-17T2

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: PER CURIAM
• Parties: IN THE MATTER OF WILLIAM PIERCE, CITY OF HACKENSACK, POLICE DEPARTMENT.
• Docket Number: DOCKET NO. A-0892-17T2
• Decision Date: 28 June 2019

IN THE MATTER OF WILLIAM PIERCE,
CITY OF HACKENSACK, POLICE DEPARTMENT.

DOCKET NO. A-0892-17T2

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued May 14, 2019
June 28, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Gilson and Natali.

On appeal from the New Jersey Civil Service Commission, Docket No. 2015-1891.

Maurice W. Mc Laughlin argued the cause for appellant William Pierce (Mc Laughlin & Nardi, LLC, attorneys; Maurice W. Mc Laughlin and Robert K. Chewning, on the briefs).

Raymond R. Wiss argued the cause for respondent City of Hackensack Police Department (Wiss & Bouregy, PC, attorneys; Raymond R. Wiss, of counsel; Timothy James Wiss and Thomas Kevin Bouregy, on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

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Appellant William Pierce, a sixteen-year member of the Hackensack Police Department (Department), appeals from a final decision of the Civil Service Commission (Commission). Because we conclude the Commission's decision was neither arbitrary nor capricious, we affirm.

I.

After serving as a patrol officer for ten years and passing the sergeant's exam, Pierce was provisionally promoted to the title of sergeant, subject to his successful completion of a three-month working test period (WTP). After Pierce failed to complete successfully his WTP, the Department reduced his rank to patrol officer. Pierce filed an administrative appeal of the Department's decision, and the parties entered a settlement agreement whereby the Department agreed to re-promote Pierce to the sergeant position, and provide him with the opportunity to complete a second WTP.

At the end of the second WTP, the Department determined that Pierce failed to perform the duties of sergeant and demoted him to patrolman. Pierce filed an appeal with the Commission, which transferred the matter to the Office of Administrative Law to be heard as a contested matter before an Administrative Law Judge (ALJ).

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The ALJ conducted hearings over the course of six days. During those proceedings, Pierce and four other Department police officers, Sergeant Walter Peterson and Captains Patrick Coffey, Peter Busciglio, and Timothy Lloyd, testified. The Department and Pierce also relied on documentary evidence.

The Department maintained that Pierce lacked the administrative skills necessary for a sergeant, citing his inability to multitask, and his delay in processing paperwork. In addition, the Department claimed, based on reports from other officers, that Pierce communicated with them in a condescending manner. The Department also maintained that fellow patrol officers lacked confidence in Pierce, and expressed concern how he would respond in a life-or-death situation.

For example, Coffey testified that he briefly supervised Pierce's work during his second WTP, during which time he observed and received complaints about Pierce using a condescending, "abrasive," or similar tone when communicating with subordinate patrol officers. In a memorandum evaluation of Pierce's performance, Coffey stated that he did not recommend that Pierce "be permanently promoted to the rank of Sergeant." Peterson, who the ALJ found to be "honest and credible," was primarily responsible for supervising Pierce during the WTP, and also stated he would not recommend that Pierce be

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promoted to the position of sergeant. In Lloyd's written review of Pierce's WTP, he noted that although he interacted with Pierce sporadically, based on his limited observations and conversations with other supervisors and Pierce's peers, he could not "in good consci[ence] say that [Pierce] [was] ready for the full time role as Patrol Supervisor."

Sergeant T.M. Cappadonna recounted in a memorandum that she observed Pierce during a fire incident behave professionally but he failed to "free up man-power as soon as they were no longer needed." Cappadonna concluded that Pierce was "capable of being a police sergeant," but "his shortcomings prevent him from doing so at the same time." Cappadonna explained that "[i]f there is any time left prior to his demotion date he should be made aware of them immediately and . . . given an opportunity to eliminate them."

In its July 24, 2017 initial decision, the ALJ concluded that the Department "failed to provide Pierce with adequate notice of his work performance during his . . . WTP and therefore did not exercise good faith during the WTP." Accordingly, the ALJ recommended the reversal of the Department's

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demotion of Pierce, and that he be provided another WTP as a result of the aforementioned procedural irregularities.¹

The ALJ faulted the Department for waiting until a week was left in his WTP before providing Pierce with written copies of his evaluation reports. Further, the ALJ criticized Coffey, who was assigned to work with Pierce during the WTP in order to evaluate his performance, yet only observed Pierce's performance on eight out of the ninety days, and failed to complete nine of twelve evaluations, many of which lacked sufficient detail. The ALJ determined these deficiencies prevented Pierce from remedying his inadequate job performance and accordingly reversed Pierce's demotion and awarded him a new WTP "so a true evaluation of his abilities can be made."

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Pierce submitted a letter brief to the Commission on August 4, 2017 asserting that the ALJ failed "to include all of the required remedies [he] should be awarded . . . ." Specifically, Pierce maintained that he should be promoted to the permanent position of sergeant, without having to go through another WTP. He also argued that he should be entitled to attorney's fees, back pay, and seniority status.

In a September 7, 2017 final decision, the Commission adopted the ALJ's recommendations, findings of fact and conclusions of law, reversed Pierce's demotion, and awarded him a new WTP. The Commission determined that although Pierce "will be permitted to complete a new working test period, [he] has not obtained permanent status as a [p]olice [s]ergeant" as "the record does not adequately establish [Pierce's] satisfactory work performance." Relying on two Merit System Board decisions, the Commission denied his application for counsel fees and costs, back pay, and seniority status. As to Pierce's request for counsel fees and back pay, the Commission concluded that "sufficient cause has not been demonstrated in this matter to award back pay or counsel fees" because "it was found that [Pierce] is not entitled to a permanent appointment since he had not successfully completed his working test period." This...