Kelly Chesler, CSC Docket No. 2019-2008

Appellant's argumentKelly Chesler, represented by Nicholas P. Milewski, Esq., requests reconsideration of In the Matter of Kelly Chesler (CSC, decided December 19, 2018) where the Civil Service Commission (Commission) upheld the bypass of her name on the Police Captain (PM08638), Jersey City eligible list.

BackgroundBy way of background, Chesler, a nonveteran, appeared on the PM0863S eligible list, which promulgated on March 26, 2015 and expired on March 25, 2018. Initially, Chesler was in the fourth position on certification PL171355, which was disposed of on December 19, 2017 with the first through third and fifth through 14th eligibles being appointed. Thereafter, Chesler was in the first position on certification PL171529, which was disposed of on January 19, 2018 with the second through fourth eligibles being appointed. Additionally, Chesler was in the first position on certification PL180256, which was disposed of on March 19, 2018 with the second through sixth eligibles being appointed. In In the Matter of Kelly Chesler, supra, the Commission upheld the bypass of her name based on her indefinite suspension on pending criminal charges.

On reconsideration, Chesler presents new evidence, which she believes should change the outcome of this matter. Specifically, she indicates that on October 23, 2018, the Hudson County Prosecutor's Office (Prosecutor's Office) dismissed the pending criminal charges against her due to lack of evidence. Additionally, Chesler states that the appointing authority has not sought any disciplinary penalty against her. Therefore, she argues that the reason for her bypasses are now without merit. Chesler also highlights that the appointing authority has since changed its policy where officers who are indicted cannot be suspended more than 30 days if the pending criminal charges are not resolved in that time. Consequently, if the current policy had been in place at the time her name had been certified, she would have been appointed. Additionally, Chesler cites In re Hruska, 375 N.J. Super 202 (App. Div. 2005) to highlight that candidates may not be excluded from promotional consideration or comparison with other candidates because of an unannounced, secret eligibility requirement and must be evaluated using merit-based criteria. In Hruska, the Appellate Division directed the Department of Personnel to reissue the certification where Hruska had been bypassed so that the appointing authority could reconsider appointments without considering the unannounced, secret eligibility requirement that was the basis of the bypass. Chesler argues that since she was bypassed solely for an indictment that has been dismissed, the Commission should order her promoted to the rank of Captain. In the alternative, she argues that the Commission should reissue certification PL171355 and revive the list so that she can be evaluated for the Captain's promotion based on merit-based criteria.

Appointing authority's argumentIn response, the appointing authority, represented by Chaunelle Robinson, Assistant Corporation Counsel, does not dispute Chesler’s record of service, promotional history, and her work-performance history. However, it argues that her bypasses were justified as Chesler was under criminal indictment at the times her name was certified. Therefore, the appointing authority argues that Chesler has not met the standards for reconsideration as the Commission did not make a clear material error. Further, while the dismissal of the charges against her may be a new development, it asserts that this is not new evidence that would have changed the outcome of the original proceedings. Specifically, the Prosecutor’s Office charged Chesler with conspiring to steal money from Jersey City though its off-duty program for Police Officers and it was proper for the appointing authority to bypass her while the matter was still pending. Similarly, she is not entitled to a retroactive appointment as it was the Prosecutor’s Office, and not the appointing authority, which brought these charges. Moreover, as the appointing authority could not foresee the outcome of the Prosecutor's Office's case at the time of each bypass, the appointing authority’s decisions to bypass Chesler were not based on discrimination, retaliation, or other improper motives and permissible under the Rule of Three. See N.eJ.A.C. 4A:4-4.8,

CONCLUSION

RuleN.J.A.C, 4A:2-1.6(b) sets forth the standards by which a prior decision may be reconsidered. This rule provides that a party must show that a clear material error has occurred or present new evidence or additional information not presented at the original proceeding which would change the outcome of the case and the reasons that such evidence was not presented at the original proceeding.

AnalysisN.J.S.A. 11A:4-8, N./S.A. 11A:5-7 and NJAC. 4A:4-4.8(a)3i allow an appointing authority to select any of the top three interested eligibles on a promotional list provided no veteran heads the list. Additionally, N.J.A.C. 4A:2- 1.4{c) provides that the appellant has the burden of proof to show by a preponderance of the evidence that an appointing authority's decision to bypass the appellant from an eligible list was improper.

A review of the record indicates that Chesler has met the standard for reconsideration. Specifically, she has presented that on October 23, 2018, the Prosecutor Office’s dismissed the pending criminal charges against her with prejudice due to a lack of evidence. This occurred after Chesler submitted her original appeal. Further, this matter is distinguishable from Hruska, supra, as this matter did not involve an unannounced, secret eligibility requirement. Instead, as indicated in the original decision, it was permissible for the appointing authority to consider Chesler’s pending discipline as a basis for bypassing her on a certification. See In the Matier of Michael Cervino (MSB, decided June 9, 2004). Similarly, there are no grounds for a retroactive appointment as the fact that the allegations were ultimately found to be non-meritorious is of no moment as there were no findings of invidious motivation at the time that the decisions to bypass were made. See In the Matter of Monica Miller (CSC, decided April 17, 2019). However, it cannot be ignored that the charges against the Chesler were ultimately dismissed due to a lack of evidence. Further, the appointing authority does not dispute Chesler’s experience and work-performance history and has apparently taken no administrative disciplinary action based on the underlying incident after the dismissal of the criminal charges. Moreover, she has not had the opportunity for the merits of her candidacy for promotion to be evaluated. Therefore, under these circumstances, Chesler’s name should be restored to the Police Captain (PM08638), Jersey City eligible list. Since the PM08635 eligible list expired on March 25, 2018, it is appropriate to revive that list at the time of the next certification to allow Chesler to be considered for prospective appointment. It is noted that at the next time Chesler’s name is certified, while the appointing authority still has discretion to bypass her for an appropriate reason pursuant to the Rule of Three, the indictment that is the subject of this matter shall not be considered an appropriate reason to bypass her.

This determination is limited to the instant matter and does not provide precedent in any other matter.

ORDER

Therefore, it is ordered that this request be granted in part and the list for Police Captain (PM0863S), Jersey City be revived in order for Kelly Chesler to be considered for appointment at the time of the next certification for prospective employment opportunities only.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.