SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1775-20

IN THE MATTER OF DAVID

NILAND, POLICE CHIEF 

(PM0169A), CLIFTON.

___________________________

Argued March 2, 2022 – Decided March 16, 2022

Before Judges Hoffman, Whipple, and Geiger.

On appeal from the New Jersey Civil Service 

Commission, Docket No. 2020-2726.

Robert K. Chewning argued the cause for appellant 

David Niland (McLaughlin & Nardi, LLC, attorneys; 

Robert K. Chewning and Maurice W. McLaughlin, on 

the briefs).

Thomas A. Abbate argued the cause for respondent 

City of Clifton (DeCotiis, Fitzpatrick, Cole & Giblin, 

LLP, attorneys; Thomas A. Abbate, of counsel; 

Gregory J. Hazley and Angelo J. DeFlora, on the 

brief).

Matthew J. Platkin, Acting Attorney General, attorney 

for respondent New Jersey Civil Service Commission

(Pamela M. Ullman, Deputy Attorney General, on the 

statement in lieu of brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
A-1775-20 2

Appellant David Niland appeals from the final administrative action of 

the New Jersey Civil Service Commission (Commission of CSC) upholding 

the bypass of his name on the certified eligible list for Police Chief of the City 

of Clifton Police Department (CPD). We affirm. 

We take the following facts from the record. In February 2020, the City 

of Clifton (City) announced a vacancy for Police Chief. A promotional exam 

was called. The Commission issued a list of three captains certified as eligible 

to take the exam – Captain Niland, Captain Christopher Stabile, and Captain 

Thomas Rinaldi, who was serving as Acting Police Chief. 

Under the City's form of government, City Manager Dominick Villano 

was the appointing authority and, in that capacity, appointed personnel to 

positions in the CPD upon resolution of the City. The so-called Rule of Three 

regulation affords discretion to the City in selecting the new Police Chief from 

the top three eligible candidates, where none of the eligible candidates is a 

military veteran. N.J.A.C. 4A:4-4.8(a)(3). 

On February 7, 2019, Villano and City Personnel and Equal Employment 

Opportunity Officer Douglas Johnson met with the eligible candidates to 

discuss the promotional process. Niland alleges that during the meeting, 

Villano stated that the promotional exam scores would determine the selection 
A-1775-20 3

of Police Chief to avoid promotion based on an "improper basis" and did not 

mention that an interview process would be used. 

Following the promotional exam, the Commission certified a list of two 

eligible candidates – Niland and Rinaldi. Niland scored 79.58 on the exam, 

Rinaldi scored 77.87. Neither is a veteran. 

Niland and Rinaldi were interviewed by Villano and Johnson and asked 

the same questions. The interview's weight and grading method were not 

explained. 

Niland and Rinaldi were both well-respected, longtime members of the 

CPD. Their exam scores were only 1.71 points apart. They each presented 

extensive but materially different qualifications. 

Rinaldi was a twenty-five-year veteran of the CPD. He had served in 

several Divisions and every Bureau in the CPD, including Administrative 

Services, Field Operations, and Investigations. Rinaldi had received several 

commendations, achieved various certifications, and completed advanced 

training. In addition, he served as Acting Police Chief during the vacancy 

period, which took place during the COVID-19 pandemic. 

Niland had been a police officer for twenty-five years, all but three of 

those years with the CPD. He too had achieved various certifications and 
A-1775-20 4

completed advanced training. Niland had served in two of the three bureaus of 

the CPD, Field Operations and Administrative services. 

Villano certified that "[b]ased on Rinaldi's comprehensive and overall 

experience, and his positive qualities and skills, [he] determined Rinaldi was 

the best fit and most meritorious for the appointment to Police Chief." Villano 

noted that "Acting Chief Rinaldi was immediately put to the test amid the 

COVID-19 pandemic this year, which caused significant scheduling changes in 

the [CPD], and has performed his duties successfully." Villano bypassed 

Niland and appointed Rinaldi as Acting Police Chief, pending formal 

appointment by the City. Thereafter, Rinaldi was formally appointed Police 

Chief effective May 1, 2020. 

On June 15, 2020, Niland appealed to the Commission, challenging the 

bypass under the Rule of Three for promotion as Police Chief. Niland claimed 

he was the superior candidate for Police Chief and had more years of service 

as a police officer, superior work assignments, and more extensive training. 

Niland alleged that contrary to indicating that the promotion would be based 

on the test scores, the City ignored his qualifications and promoted Rinaldi 

based on favoritism, nepotism, and Rinaldi's political connections and 

relationships. Niland contended that that no weight should have been placed 

on the candidate's performance during the interview because the City failed to 
A-1775-20 5

demonstrate that the interview process was structured, objective, and uniform 

for each candidate. Niland requested that his appeal be referred to the Office 

of Administrative Law (OAL) as a contested case for hearing. 

The City contended that its selection was based on legitimate criteria in 

accordance with Civil Service law. It noted that each candidate was asked the 

same questions during separate interviews. The City averred that the selection 

was based, in part, on Rinaldi's experience serving in every Bureau within the 

CPD during his twenty-five-year tenure, in contrast to Niland having only 

served in two Bureaus. The City asserted that it considered Rinaldi's overall 

experience and positive qualities and skills, and determined Rinaldi was the 

"best fit and most meritorious for appointment to Police Chief." The City also 

considered Rinaldi's successful service as Acting Police Chief during the 

COVID-19 pandemic. The City argued that Niland offered only generalized 

accusations of alleged ulterior motives for the promotion that were devoid of 

any factual support and fell short of showing that the decision to bypass Niland 

was based on an improper motive. 

On January 22, 2021, the Commission issued a final administrative

action denying Niland's appeal. After considering the briefing and 

certifications submitted by the parties, the Commission provided the following 

analysis:
A-1775-20 6

Initially, bypass appeals are treated as reviews 

of the written record. See N.J.S.A. 11A:2-6(b). 

Hearings are granted in those limited instances where 

the Commission determines that a material and 

controlling dispute of fact exists that can only be 

resolved through a hearing. See N.J.A.C. 4A:2-1.1(d).

For the reasons explained below, no material issue of 

disputed fact has been presented that would require a 

hearing. See Belleville v. Dep't of Civ. Serv., 155 

N.J. Super. 517 (App. Div. 1978). 

N.J.S.A. 11A:4-8, N.J.S.A. 11A:5-7, and 

N.J.A.C. 4A:4-4.8(a)(3)(ii) allow an appointing 

authority to select any of the top three interested 

eligibles on a promotional list, provided that no 

veteran heads the list. Moreover, it is noted that the 

appellant has the burden of proof in this matter. See

N.J.A.C. 4A:2-1.4(c).

In cases of this nature where dual motives are 

asserted for an employer's actions, an analysis of the 

competing justifications to ascertain the actual reason 

underlying the actions is warranted. See Jamison v. 

Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436 

(App. Div. 1990). In Jamison, [id.] at 445, the court 

outlined the burden of proof necessary to establish 

discriminatory or retaliatory motivation in 

employment matters. Specifically, the initial burden of 

proof in such a case rests on the complainant who 

must establish discrimination or retaliation by a 

preponderance of the evidence. Once a prima facie

showing has been made, the burden of going forward, 

but not the burden of persuasion, shifts to the 

employer to articulate a legitimate non-discriminatory 

or non-retaliatory reason for the decision. If the 

employer produces evidence to meet its burden, the 

complainant may still prevail if he or she shows that 

the proffered reasons are pretextual or that the 

improper reason more likely motivated the employer. 

Should the employee sustain this burden, he or she has 
A-1775-20 7

established a presumption of discriminatory or 

retaliatory intent. The burden of proof then shifts to 

the employer to prove that the adverse action would 

have taken place regardless of the discriminatory or 

retaliatory motive. In a case such as this, where the 

adverse action is failure to promote, the employer 

would then have the burden of showing, by 

preponderating evidence, that other candidates had 

better qualifications than the complainant. 

Since only non-veterans were listed on the 

certification, it was within Clifton's discretion to 

select any of the two interested eligibles on the 

certification. Nevertheless, the appellant alleges that 

he was bypassed for the improper reasons of

favoritism, nepotism and political connections and 

relationships. However, the appellant has not 

provided any substantive evidence beyond mere 

allegations that his bypass was motivated by such 

improper reasons. Moreover, Clifton has presented 

legitimate reasons for bypassing the appellant and 

selecting [Rinaldi]. In this regard, [Rinaldi], unlike 

the appellant, served in every division of the Police 

Department. It is of no moment that Clifton may have 

used the term "division" when it should have used the 

term "bureau." Even assuming that "bureau" is the 

correct term, the appellant still acknowledges that 

[Rinaldi] has served in every bureau, while the 

appellant has served in two of the Police Department's 

three bureaus. Additionally, Clifton points to 

[Rinaldi's] successful performance of his duties while 

serving as "Acting" Police Chief. See [In re] Donald 

Fillinger (CSC, decided December 16, 2009) ([a]bsent

a showing that another individual was selected for an 

"acting" position based on an improper reason, [the] 

Commission determined it was appropriate for 

appointing authority to rely on experience gained in 

the "acting" position when exercising its discretion 

under the "Rule of Three"). [Rinaldi's] experience in 

the foregoing respects is not in dispute. 
A-1775-20 8

Neither has the appellant shown that Clifton's 

proffered reasons were pretextual. For example, the 

appellant claims that no mention was made at the 

February 7, 2019 meeting that an interview would take 

place; . . . that that this was the first time that Clifton 

used an interview process in a police promotion; and 

that the interview was unstructured. It should be 

emphasized though that appointing authorities are 

permitted to interview candidates and base their hiring 

decision on the interview. This is within the 

appointing authority's discretion and may apply to all 

positions, including Police Chief. However, 

interviews, whether structured or not, are not required. 

See [In re] Nicholas R. Foglio (CSC, decided February 

22, 2012). It is within the appointing authority's 

discretion to choose its selection method, i.e., whether 

or not to interview candidates. See e.g., [In re] Angel 

Jimenez (CSC, decided April 29, 2009); [In re] Abbas 

J. Bashiti (CSC, decided September 24, 2008); [In re]

Paul H. Conover (MSB, decided February 25, 2004); 

[In re] Janet Potocki (MSB, decided January 28, 

2004). Thus, since conducting interviews is 

discretionary, any purported lack of structure in the 

interview is not cause to find that the appellant's 

bypass was improper. So long as the hiring decision is 

in compliance with N.J.A.C. 4A:4-4.8(a)[(3)], the 

Commission cannot find that the interview was 

conducted inappropriately. In this case, the record is 

clear that Clifton interviewed both candidates and 

considered their qualifications. In this regard, it is 

evident that Clifton interviewed the appellant, and his 

experience was evaluated in comparison with 

[Rinaldi's], as noted earlier. The appellant does not 

substantively dispute Clifton's representation that both 

candidates were asked the same questions. In short, 

even assuming that this was the first time that Clifton 

used an interview process for a police promotion, the 

Commission lacks any substantive basis to conclude 

that Clifton instituted such process for any improper 
A-1775-20 9

reason or that the format of the process establishes 

that the appellant was improperly bypassed. Further, 

even assuming that the City Manager represented on 

February 7, 2019 that the candidate who scored the 

highest on the examination would be selected, the 

appellant has not established that such statement had 

any binding effect or that the City Manager changed 

his mind for any improper reason. 

Additionally, even assuming, arguendo, that the 

appellant is more qualified for the position at issue, 

Clifton still has selection discretion under the "Rule of 

Three" to appoint a lower-ranked eligible absent any 

unlawful motive. See N.J.A.C. 4A:4-4.8(a)[(3)]; [In 

re] Nicholas R. Foglio, Fire Fighter (M2246D), Ocean 

City, 207 N.J. 38, 49 (2011). [Cf.] In re Crowley, 193 

N.J. Super. 197 (App. Div. 1984) (Hearing granted for 

individual who alleged that bypass was due to antiunion animus); Kiss v. Dep't of Cmty. Affs., 171 N.J. 

Super. 193 (App. Div. 1979) (Individual who alleged 

that bypass was due to sex discrimination afforded a 

hearing). Moreover, the appellant does not possess a 

vested property interest in the position. In this regard, 

the only interest that results from placement on an 

eligible list is that the candidate will be considered for 

an applicable position so long as the eligible list 

remains in force. See Nunan v. Dep't of Pers., 244 

N.J. Super. 494 (App. Div. 1990). The appellant has 

not presented any substantive evidence regarding his 

bypass that would lead the Commission to conclude 

that the bypass was improper or an abuse of Clifton's 

discretion under the "Rule of Three." Moreover, 

Clifton presented legitimate reasons for the appellant's 

bypass that have not been persuasively refuted. 

Accordingly, a review of the record indicates that 

Clifton's bypass of the appellant's name was proper, 

and the appellant has not met his burden of proof in 

this matter.
A-1775-20 10

This appeal followed. Appellant raises the following points for our 

consideration:

I. STANDARD OF REVIEW.

II. THE COMMISSION SHOULD HAVE 

REFERRED THIS MATTER TO THE OAL BASED 

ON THE MATERIAL FACTS IN DISPUTE.

III. CLIFTON'S REASON TO BYPASS 

APPELLANT WAS UNLAWFUL, ARBITRARY,

AND CAPRICIOUS.

We affirm the denial of appellant's appeal without an evidentiary hearing 

substantially for the reasons expressed by the Commission in its written 

decision. The Commission's final administrative action "is supported by 

sufficient credible evidence on the record as a whole" and does not warrant 

extended discussion. R. 2:11-3(e)(1)(D). We add the following comments. 

Our scope of review of the final administrative action of an agency is 

limited. Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27

(2011). "[A] 'strong presumption of reasonableness attaches'" to the 

Commission's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 

2001) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 

135 N.J. 306 (1994)). The party challenging the final administrative action has 

the burden to demonstrate grounds for reversal. Lavezzi v. State, 219 N.J. 

163, 171 (2014) (citing In re J.S., 431 N.J. Super. 321, 329 (App. Div. 2013)). 
A-1775-20 11

"We will not set aside the determination of an administrative agency"

unless the challenger clearly demonstrates that the decision was "arbitrary, 

capricious, unsupported by substantial credible evidence contained in the 

record, or in violation of express or implicit legislative policy." Carroll, 339 

N.J. Super. at 437. When reviewing an agency decision, we examine (1) 

whether the agency action violated "express or implied legislative policies," 

(2) whether there is substantial evidence in the record to support the agency's 

decision, and (3) whether in applying the law to the facts, the agency reached a 

conclusion "that could not reasonably have been made on a showing of the 

relevant factors." Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 

N.J. 150, 157 (2018). Where an agency's decision satisfies these criteria, we 

accord substantial deference to the agency's fact-finding and legal conclusions, 

recognizing "the agency's 'expertise and superior knowledge of a particular 

field.'" Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 

1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 

513 (1992)). 

Niland argues the Commission erred by not referring the appeal to the 

OAL as a contested case because there are material facts in dispute regarding 

the City's true reasons for changing its promotional process. We disagree. 
A-1775-20 12

The Commission may transfer a "contested case" to the OAL for a 

hearing. A contested case is defined 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 Administrative Procedure Act, N.J.S.A. 52:14B-1 to -31, "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). An agency head has 

the exclusive authority to determine whether a case is a contested case within 

the intent of the APA. 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 (App. 

Div. 1984) (citing Cunningham v. Dep't of Civ. Serv., 69 N.J. 13, 18-19 

(1975)). "[T]he mere expectancy of employment [is] not an interest of 
A-1775-20 13

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 

Crowley, 193 N.J. Super. 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." Crowley, 193 N.J. Super. at 210. 

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

was his expectation that he would be promoted to Police Chief. Id. at 209. 

Nor did Niland 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 Commission will decide an appeal "on a written record" except when a 

hearing is required by law or the Commission finds "a material 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 Commission did not base its final decision on credibility 

findings and there was no genuine dispute as to any material fact. Rather, the 

Commission relied on the undisputed facts in the record that showed the City's 

"actual reasons and motivations" for utilizing the Rule of Three to bypass 

Niland and promote Rinaldi. The City was permitted to consider Niland and 
A-1775-20 14

Rinaldi's respective experience and training. Further, as discussed below, 

Niland failed to establish a prima facie case of favoritism, nepotism, 

discrimination, or other improper motivation for bypassing him and selecting 

Rinaldi. Therefore, he did not have a right of discovery based on those 

unsupported claims. Instead, he made bare, unsupported allegations. Such 

unsupported allegations do not warrant an evidentiary hearing. The 

Commission rejected Niland's legal conclusions.

Niland further argues that the Commission's final agency action is 

arbitrary, capricious, and unreasonable. He contends that the City failed to 

provide legitimate reasons when it bypassed him on the eligible list. The Civil 

Service Act, N.J.S.A. 11A:1-1 to 12-6, and regulations promulgated thereunder 

generally provide for merit-based appointments to positions in the civil 

service. Foglio, 207 N.J. at 43-44 (quoting N.J. Const. Art. VII, § 1, ¶ 2). 

However, "[t]he Rule of Three, which governs the hiring discretion of the 

appointing authority, 'permits an appointing authority to select one of the three 

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

(quoting Local 518, N.J. State Motor Vehicle Emps. Union v. Div. of Motor 

Vehicles, 262 N.J. Super. 598, 603 (App. Div. 1993)). "Under the Rule of 

Three, . . . the appointing authority has the discretion to select from among the 

top three candidates in filling a vacancy." Ibid. (citing N.J.S.A. 11A:4-8); 
A-1775-20 15

accord Terry v. Mercer Cnty. Bd. of Chosen Freeholders, 86 N.J. 141, 149-50 

(1981). "[T]he appointing authority retains discretion to bypass a higherranked candidate 'for any legitimate reason based upon the candidate's merit.'" 

Foglio, 207 N.J. at 47 (quoting In re Hruska, 375 N.J. Super. 202, 210 (App. 

Div. 2005)). 

If the appointing authority selects a lower-ranked candidate, it is 

required to provide a "statement of the reasons 'why the appointee was selected 

instead of a higher ranked eligible [candidate.]'" Ibid. (citing N.J.A.C. 4A:4-

4.8(b)(4)). The appointing authority has "broad discretion" to consider a wide 

range of subjective factors. Terry, 86 N.J. at 150. The appointment does not 

run afoul of our State Constitution if the appointing authority has any

"legitimate reason" for bypassing a higher-ranked candidate. Crowley, 193 

N.J. Super. at 214. For example, the appointing authority may rely "on a 

preference for a college degree; or the performance of the applicants in the 

give-and-take of an interview; or on extraordinary character and references[,] 

. . . experience and training. Each of those reasons would have satisfied 

N.J.A.C. 4A:4-4.8(b)(4)." Foglio, 207 N.J. at 49. 

A higher-ranked candidate challenging a bypass "bears the burden of 

proving that the appointing authority was motivated by an illegitimate, 

unlawful motive." Foglio, 207 N.J. at 56 (citing N.J.A.C. 4A:2-1.4(c)). Once 
A-1775-20 16

the candidate makes a prima facie showing, the burden of going forward shifts 

to the appointing authority to present a legitimate, non-discriminatory reason 

for the decision. Jamison, 242 N.J. Super. at 445. Should the appointing 

authority meet its burden, the candidate can still prevail if they show that the 

articulated reasons are pretextual or that an improper motive was more likely 

responsible. Ibid. If the candidate meets that burden, they have established a 

presumption of discriminatory intent and the burden shifts to the appointing 

authority. Id. at 446. The appointing authority must then prove that the action 

would have taken place regardless of the discriminatory motive, typically by 

showing that the other candidates had better qualifications. Ibid.

Here, the record supports the Commission's determination that the City

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

Niland. The Commission found the City had the discretion to conduct 

interviews as part of the promotional process and that there was no evidence in 

the record to suggest the interviews were pre-textual. Nor was there any 

evidence that the interviews were conducted inappropriately. Moreover, 

Villano's earlier statement that the test scores would be determinative did not 

preclude the City from interviewing candidates, even if the City had not used 

interviews for a police promotion. Niland produced no evidence that the City 
A-1775-20 17

used the interviews "for any improper reasons or that the format of the process 

establishes that Niland was improperly bypassed."

The Commission also rejected Niland's assertions that the City's bypass 

decisions were due to invidious reasons. The Commission noted Niland did 

not present any evidence to support his assertion that Rinaldi was appointed 

based on political considerations and the City "presented legitimate reasons for 

Niland's bypass that have not been persuasively refuted." Unsupported, 

generalized complaints of discrimination are insufficient. Niland has not 

alleged he is a member of a protected class or that he was bypassed for an 

invidious reason such as his race, gender, ancestry, religion, or anti-union

animus. Niland's claim he was bypassed for invidious reasons lacks sufficient 

merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). 

The Commission's decision was supported by the record and consistent 

with applicable law. We conclude that it did not abuse its discretion when it

denied Niland's appeal, thereby upholding the City's decision to bypass Niland 

for promotion to Police Chief without the need for an evidentiary hearing. 

Affirmed.