SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO . A

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DSFC CHARLES ALLEN #5331,

Petitioner

- Appellant,

v.

OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LAW AND PUBLIC SAFETY,

Respondent

- Respondent.

________________________ _ ____

Argued May 2 , 2022

– Decided June 30 , 2022

Before Judges Fisher and Smith.

On appeal from the New Jersey Department of Law and Public Safety.

Charles P. Allen , Jr. argued the cause for appellant

.

Stephanie D. Trotter, Deputy Attorney General, argued the cause for respondent ( Matthew J. Platkin , Acting Attorney General, attorney; Melissa H. Raksa

, Assistant Attorney General

, of counsel; Stephanie D.

Trotter

, on the 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE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

. " A lthough 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

- 3.2 A

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Appellant Detective Sergeant First Class Charles T. Allen ( Allen ), a

twenty

- four

- year veteran of the New Jersey State Police (NJSP), appeals the

Attorney General's denial of a recommendation for his promotion to lieutenant.

Allen, now retired, seeks a retroactive promotion to lieutenant effective June 1 9,

2020, the da te of the recommendation letter. Among other things, he argues that

the Attorney General had no statutory authority to deny his promotion under

N.J.S.A. 53:1

- 5.2, but i f we find the Attorney General did have such authority,

it was exercised in an arbitrar y and capricious manner. We affirm the denial of

Allen 's recommended promotion for the reasons set forth below.

Allen was employed as a state trooper with the NJSP from December 1995

through his retirement in January 2021

. The NJSP Superintendent

recomm ended him for promotion to lieutenant on June 19, 2020. On August 25,

2020, the Attorney General informed Allen via letter that his promotion was not

approved. The denial letter read in pertinent part:

Pursuant to my authority under N.J.S.A. 53:1

- 5.2, I did not approve your promotion. This denial is based on a review of your promotional package and disciplinary history, which includes two substantiated [Equal Employment Opportunity] matters and five

sub stantiated misconduct investigations.3 A

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In the denial letter, t he Attorney General detailed the separate

substantiated charges against Allen, which resulted in a negotiated plea to

resolve the m. Allen received a ten

- day suspension and two written reprima nds

as a part of the plea deal. On October 20, 2020, Allen appealed the denial,

alleging the Attorney General did not have the statutory authority under N.J.S.A.

53:1

- 5.2 to reject the Superintendent's promotion recommendation.

Alternatively, Allen argue s that if we find the Attorney General has statutory

authority to deny the promotion, the denial was arbitrary, capricious, and

unreasonable. In addition to opposing Allen's arguments on the merits, the

Attorney General argues that Allen 's retirement on J anuary 1, 2021 renders the

appeal moot.

We first address the Attorney General's mootness argument. "An issue is

considered 'moot when our decision . . . can have no practical effect on the

existing controversy.'" Wisniewski v. Murphy , 454 N.J. Super. 508, 518 (App.

Div. 2018) (citations omitted). Mootness may occur because the controversy

lacked "concreteness from the outset" or it may result "by reason of

developments subsequent to the filing of suit . . . ." Ibid. (quoting State v.

Davila , 4 43 N.J. Super. 577, 584 (App. Div. 2016)). We do not "resolve issues

that have become moot due to the passage of time or intervening events." Ibid.4 A

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We find that the appeal before us is not moot. Allen was denied a

promotion on August 25, 2020. He did not retire until January 1, 2021. The

relief that he seeks is retroactive appointment to the position of lieutenant with

corresponding back pay. He further seeks recalculation of his P olice and

Firemen's Retirement System (P FRS ) pension benefit if he is successful. Our

decision can have a "practical effect on the existing controversy." Ibid.

We turn to Allen's argument that the Attorney General did not have the

statutory authority to deny his promotion. He contends that the Attorney

General's authority to approve the Superintendent's actions is limited to

budgetary matters under N.J.S.A. 53:1

- 5.2

. The statute reads:

Notwithstanding any other provision of law, the rank and grade of any member of the State Police may be changed from time to time, and the number of personnel increased, by the superintendent of State Police where such change or i ncrease is necessary for the efficient operation of the Division of State Police in the Department of Law and Public Safety; provided, the action of the said superintendent in making any such change or increase, shall be approved by the head of said depart ment. No such change or increase shall be

made unless it can be effected within the limitations of the appropriations for the said division.

[N.J.S.A. 53:1

- 5.2 (emphasis added). ]

Allen relies upon the last sentence of the statute to make the argument tha t the

Superintendent has the exclusive power to make promotions within the NJSP.5 A

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We review matters of statutory interpretation de novo. Verry v. Franklin

Fire Dist. No. 1

, 230 N.J. 285, 294 (2017). Our ultimate "task in statutory

interpretation is to determine and effectuate the Legislature's intent." Bosland

v. Warnock Dodge, Inc. , 197 N.J. 543, 553 (2009) . Courts "look first to the

p lain language of the statute, seeking further guidance only to t he extent that the

Legislature's intent cannot be derived from the words that it has chosen."

McGovern v. Rutgers , 211 N.J. 94, 108 (2012) (quoting Bosland , 197 N.J. at

553 ). "The Legislature's intent is the paramount goal when interpreting a statute

and

, generally, the best indicator of that intent is the statutory language."

DiProspero v. Penn

, 183 N.J. 477, 492 (2005) (citing Frugis v. Bracigliano

, 177

N.J. 250, 28 0 (2003)). Thus, any analysis to determine legislative intent begins

with the statute's plain language. I d. at 493.

Our reading of N.J.S.A. 53:1

- 5.2's plain language reveals clear direction

from the Legislature that the Attorney General 1 "shall

. . . a pprove[]" the actions

of the Superintendent in changing "the rank and grade of an y member of the

State Police

. " The Superintendent's power to make personnel decisions are

subject to two limiting factors in the statute: (1) the approval of the "head of

1 The NJSP is a division within the Department of Law and Public Safety.

N.J.S.A. 52:17B

- 6. The Attorney General is the head of the Department of L aw and Public Safety. N.J.S.A. 52:17B

- 51.6 A

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[th e] department," the Attorney General; and (2) personnel decisions must be

"effected within the limit[s] of" the NJSP budget appropriations. We are not

persuaded by Allen's argument and find N.J.S.A. 53:1

- 5.2 imposes no

constraints on the Attorney General 's authority to approve or deny the

Superintendent's promotion recommendations. In fact, the statutory language

show that the administrative and financial constraints enumerated in the statute

are imposed on the Superintendent, not the Attorney General.

Allen next argues that the Attorney General was arbitrary and capricious

in the denial of his promotion. He argues that the Attorney General: failed to

consider Allen's "exemplary career"; mistakenly referenced another state

trooper in its supporting documents; based the denial on "flawed" facts; and also

based the denial on allegations which were "discredited and discarded." Allen

also raise s an allegation of age discrimination in his appeal. 2 "The person

challenging an agency action has '[t]he burden of showing that an action was

arbitrary, unreasonable[,] or capricious.'" In re M.M. , 463 N.J. Super

. 128, 136

(App. Div. 2020) (alteration in original) (citations omitted).

2 We consider only the issue on appeal, whether the Attorney G eneral's denial of Allen's promotion was arbitrary and capricious. Any separate cause of action for age discrimination that Allen alleges against the Attorney General or the

NJSP is not before us. We make no comment on the merits or timeliness of such

a claim.7 A

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The record shows that Allen was involved in five separate internal affairs

investigations between 2012 and 2016, which led to seven substantiated charges

against him, including: inappropriate actions

– on duty; improper use of division

computer; improper supervision; failure to noti fy the division of information

(twice); inappropriate attitude and demeanor; inappropriate social media

posting; and providing false information on any log, report, or transmittal. The

record also shows that in 2013, the NJSP EEO office substantiated two separate

allegations of sexual harassment against Allen. The allegations were

consolidated into one case file and disciplinary action was taken against him.

The record further shows that some of the investigations which led to

substantiated charges were merged , and some of th ose charges were dismissed

as part of a negotiated plea agreement between Allen and the NJSP. Allen

suggests that the facts contained in the record are "flawed," "discredited," or

"discarded" because of these procedural issues, and that the Attorney General

was arbitrary, capricious and unreasonable in relying on them. We disagree.

Allen had a full and fair opportunity to contest any disputed facts during the

NJSP internal investigative process , an administrative proces s within the NJSP

that consumed four years, between 2012 and 2016. He was made aware of the

charges against him and admitted to some of them. Allen ultimately resolved8 A

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the remaining charges by reaching a global settlement , which resulted in

discipline ag ainst him.

We note the detailed and confidential record reviewed by the Attorney

General regarding Allen's disciplinary history reveals a wide range of

concerning conduct, including but not limited to : substantiated sexual

harassment charges; substantiated at tempts to conceal his own improper actions ;

and substantiated attempts to conceal th e improper actions of others under his

command . Understanding that Allen seeks promotion to lieutenant, a position

which requires the supervision of other state troopers, we cannot conclude on

the record before us that the Attorney General's decision to deny Allen's

promotion was arbitrary, capricious, or unreasonable. We observe that Allen

has made various other arguments

. Each of them lacks sufficient me rit to

warrant discussion in a written opinion. R. 2:11

- 3(e)(1)(E).

Affirmed.