On November 17, 2008, the New Jersey Supreme Court decided the case of Borough v. Glassboro v. Fraternal Order of Police Lodge No. 108, A-75-07. In this case, the Court addressed the validity of an arbitrator’s award addressing the legality of a police officer promotion made by the Borough of Glassboro, a non-civil service municipality.
In 2004, the Borough of Glassboro Police Department (“Borough”) announced an opening for the position of lieutenant. Three candidates applied, including Sergeants Peter Amico and William Highley. As a non-civil service municipality, the Borough is not subject to the statutory requirements of a comprehensive promotional procedure. Rather, state law only requires that due consideration is given to the officer proposed for promotion and to the length and merit of the officer’s service, with preference being given to seniority in service.
The Borough implemented a three stage promotional procedure. The scores from Phase I and II were aggregated for a total possible score of 100%. Phase I consisted of an interview with the Borough Chief of Police and was worth 20%. Phase II involved an oral and written exam and was worth 80%. Phase IIA, the written portion, was a multiple-choice test designed by the International Association of Police Chiefs. Phase IIB, the oral component, consisted of interviews with a panel of four independent police chiefs. Following Phase I and II, the cumulative final scores were as follows: Sergeant Amico, 93.8, and Sergeant Highley, 92.4.
In Phase III, each applicant was interviewed by the Borough Public Safety Committee, which included Borough Council members, the Borough Administrator, and the Chief of Police. Candidates were advised that they would be asked questions “concerning their department’s SOPs Rules and Regulations, in addition to questions concerning the Boro Personnel Policy & Procedures and Boro Ordinances.” The purpose of Phase III was to test leadership intangibles that are necessary for the position and evade formal testing. After the completion of Phase III, Highley, ranked second in the Phase I and II testing, was awarded the promotion.
Amico learned in subsequent conversations with the Chief of Police and the Borough Administrator that his move out of the Borough had a possible negative effect on the promotional decision. The Fraternal Order of Police, Local 108 (“FOP”) filed a grievance on Amico’s behalf, thereby claiming: (1) that the use of Phase III as more than a “confirmatory interview” altered the terms and conditions of employment in violation of the collective bargaining agreement between the Borough and FOP; and (2) the Borough violated N.J.S.A. 40A:14-122.6 by making residency a factor in its promotional decision.
The matter was ultimately submitted to arbitration after the grievance was unable to be resolved. The arbitrator concluded that Amico was improperly deprived of the promotion contrary to statute and that he should be promoted with full back pay. In making his ruling, the arbitrator noted that Amico, whose education and seniority were greater than Highley’s, was 1.4 points ahead of Highley after Phases I and II, but then fell behind following the Phase III interview. The arbitrator also pointed out that there was nothing in the record to positively determine what elements in that interview caused Amico to fall behind Highley. The arbitrator further surmised from the testimony that Amico had recently moved away from the Borough and that a non-civil service municipality can only use residency in a tiebreaker on the promotional test, which was not the case here.
Thereafter, the Borough filed a complaint in the Superior Court, wherein the arbitrator’s award was stayed pending the outcome of the case. In the complaint, the Borough alleged: (1) that it had placed substantial evidence in the record noting what occurred during the Phase III interview; and (2) the arbitrator disregarded the testimony of the Borough Administrator, the Police Chief, and all the Phase III documentation referenced during the arbitration. Attached to the complaint were two pages of questions asked of each candidate in Phase III, as well as the Chief’s corresponding notes concerning each candidate’s answers.
The trial judge denied the Borough’s motion to vacate the arbitrator’s award or to hold a plenary hearing. In so holding, the judge noted that so long as the arbitrator’s determination is reasonably debatable it should not be disturbed. Accordingly, the judge affirmed the arbitrator’s award, but granted the Borough’s motion for a stay pending appeal.
The Appellate Division affirmed on appeal, essentially because it agreed with the arbitrator and the trial judge that the record was bare regarding the Borough’s reasoning for elevating Highley over Amico, thereby rendering the promotion of Highley arbitrary and capricious. The Borough appealed and the Supreme Court granted certification.
The Supreme Court held the arbitrator properly determined that the record did not adequately support the elevation of Highley over Amico. However, the Court did indicate it was beyond the arbitrator’s power to fashion a remedy that promoted Amico. Therefore, the judgment of Appellate Division was affirmed and reversed in part and the case was remanded for proceedings consistent with its holding.
In support, the Court noted that an arbitrator must uphold a non-civil service municipality’s promotion decision unless the decision was clearly arbitrary, capricious, or unreasonable, since judicial review of an arbitrator’s decision is limited and the decision should not be set aside easily. The New Jersey Arbitration Act permits courts to vacate an arbitration award in only limited defined circumstances. In addition, a court may vacate an arbitration award that is contrary to existing law or public policy as embodied in legislative enactments, administrative regulations, or legal precedents.
After reviewing the record in this case, the Court agreed with the arbitrator’s decision. The Court noted that the arbitrator’s conclusion that the record shows no reasoning by the Borough for elevating Highley is unassailable. The Court further noted this case stands for the unremarkable proposition that, should a grievant make the type of showing that Amico made here, and should the municipality not provide even the simplest explanation on the record for some kind of rational reason for its decision, the decision cannot stand.
The Court also indicated that the Legislature, through statue, clearly established residence as a tie-breaker in non-civil service municipalities. However, in this case, there was no tie after the first two phases, simply out, Amico was ahead of Highley. Moreover, the Court also noted that if the record was inadequate regarding how Highley passed Amico during Phase III, it was equally deficient in respect of Amico’s leadership skills and how, upon testing, he lost his lead. Therefore, it was beyond the arbitrator’s power to fashion a remedy that promoted Amico and, thus, the matter must be remanded to the Borough to conduct a new Phase III proceeding.
