NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Appellant Sergeant William Ippolito appeals from the final decision of the Civil Service Commission (Commission) that upheld the action of the Borough of Point Pleasant Beach (Borough) to bypass Ippolito on the eligible list for promotion to the rank of police lieutenant. For the reasons that follow, we affirm.

The Borough conducted a promotional examination for the position of police lieutenant. Ippolito achieved the highest score, followed by Sergeant Robert Goessel, then Sergeant Joseph Michigan. On February 22, 2012, all three were certified as eligible for promotion.

The Borough Council Police Committee, consisting of Council President Michael Corbally, and Council members William Mayer and Bret Gordon, interviewed the three candidates separately on February 24, 2012. Ippolito's interview began at 7 a.m. with Corbally and Mayer. Gordon did not participate initially. However, Gordon and Mayer continued Ippolito's interview in the afternoon.

The March 6, 2012 minutes of the Borough Council's closed session meeting reflected the Police Committee's report that "Officer Michigan was substantially impressive; all three interviewers concurred that PO Michigan was not their first choice going into the interview process." The minutes noted a consensus to promote Michigan. The Borough adopted a resolution approving Michigan's promotion on March 20, 2012.

On April 4, 2012, Ippolito appealed to the Commission, seeking to void the appointment because he did not "feel the appointment was based on merit and fitness" as required under N.J.S.A. 11A:3-2.1. He further challenged the sufficiency of the Borough's reasons for bypassing him in favor of Michigan, and asserted that Michigan's promotion came as the result of a quid pro quo agreement to reduce the volunteer fire department's budget request in exchange for the promotion. Furthermore, he complained that the interview process was unfair because his interview was "bifurcated" between a morning and afternoon session.

On May 22, 2012, the Borough submitted to the Commission its statement of reasons for promoting Michigan. The Borough explained:

The Borough's correspondence also described its reasons for bypassing Ippolito.

During the promotion process, Ippolito submitted a resume that indicated that he had obtained a Bachelor's and Master's degree when, in fact, he had neither degree at the time of the interview or the Borough's decision to by-pass him. During the administrative appeal, Ippolito submitted to the Commission a revised resume showing that he had not yet obtained these degrees.

In July 2012, the Borough replied to the appeal, submitting to the Commission minutes of four closed session Borough Council meetings; a copy of the Borough resolution promoting Michigan; and the statement of reasons. In November 2012, Ippolito submitted a brief and certification that included a copy of his resume, and a February 8, 2011 memorandum from Police Chief Kevin O'Hara to the Mayor and Council recommending Ippolito for a promotion to police lieutenant.

In January 2013, the Borough submitted a brief and additional documentation, including a certification from Chief O'Hara addressing Ippolito's November 2012 certification. In addition to supporting its selection of Michigan, the Borough argued that Ippolito did not present any credible information to support his allegations that the mayor was paid to appoint Michigan, or that Michigan made a quid pro quo deal regarding the Fire Department in exchange for the promotion. Further, the Borough noted that Ippolito did not possess a Bachelor's or Master's degree at the time of the interview, but that he provided unclear information that suggested he had earned both. The Borough asserted that Ippolito had two opportunities to present his qualifications during interviews with the Council members.

In his certification, Chief O'Hara expressed dismay that Ippolito's certification was "misleading and incorrectly represented his experience and credentials." O'Hara pointed out that Ippolito erroneously: (1) claimed membership in the Borough's "First Aid and Emergency Squad," when in fact, he was not an active member in 2012 and did not attend meetings or drills; (2) misrepresented that he was "active on the Ocean County Regional SWAT team," when in fact he had been suspended from the team on March 9, 2012; (3) stated that he was the police department firearms range master, but failed to mention that he had received a written reprimand for his conduct on June 20, 2012; and (4) overstated his volunteerism, particularly with regards to his work with the youth police camp in the neighboring Borough of Point Pleasant. Most importantly, the Chief pointed out the Borough's misunderstanding with respect to Ippolito's academic credentials, and that Ippolito had neither a Bachelor's nor a Master's degree during the promotion process, whereas Michigan had both.

In April 2013, the Commission sought additional information from the Borough regarding Michigan's qualifications, "including a description of his answers during the interview process." In response, the Borough provided a summary of the interview, and another copy of Michigan's resume. The Borough noted that Ippolito submitted a different resume to the Commission "which was significantly more detailed, and puffed [up] his participation and duties with regard to the police department."

On June 26, 2013, the Commission issued its decision and affirmed the Borough's selection. It noted the Borough's reliance on Michigan's superior interviewing skills, work experience, military service, and attainment of a Master's degree and certification as a Public Manager. The Commission pointed out that Ippolito asserted that he possessed police department and community service involvement comparable to Michigan, but failed to demonstrate that he was a more qualified candidate. The Commission further explained that "N.J.A.C. 4A:4-4.8(b)(4) does not compel an appointing authority to articulate a negative reason or disqualifying factor why the appellant, a higher-ranking eligible, was bypassed."

With respect to the interview, Ippolito averred that performance during the interview is not a sufficient reason to bypass him, particularly when his interview was bifurcated, and "did not utilize any objective standards." The Commission explained that because the manner in which the appointing authority structures and conducts the interview of candidates is discretionary, "the lack of documentation or structure in the appellant's interview is not cause to find that his bypass was improper." Nevertheless, the Commission concluded that the Borough interviewed the three candidates and compared their qualifications and experiences.

Finally, the Commission found that the "tenuous allegations related to his interviews, the mayor, the Fire Department's budget, and to Michigan," did not establish that Ippolito was subjected to retaliation by the Borough or that the bypass was based on personal favoritism.

The Commission found the statement of reasons to be sufficient and noted that the Borough determined Michigan was more qualified and better suited to the position of Police Lieutenant "due to his training and education." The Commission concluded the Borough presented legitimate reasons to support the bypass of Ippolito's name on the eligible list. This appeal followed.

Ippolito raises the following points of error:

The scope of our review in an appeal from a final decision of an administrative agency is limited. In re Herrmann, 192 N.J. 19, 27 (2007) (citing In re Carter, 191 N.J. 474, 482 (2007)). We must consider:

If the agency's decision satisfies those criteria, the court should give "substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid.

Ippolito initially challenges the Borough's statement of reasons for its bypass decision as "perfunctory," or "boilerplate," and argues that its "crux" was "a pretextual and conclusory statement that Michigan interviewed better than the other candidates." He argues that the Borough's decision to bypass him was arbitrary and capricious because it failed to explain why it bypassed him, instead of explaining why it selected Michigan. While he concedes that it did contain "some brief mention of Michigan's qualifications," he faults the Borough's statement for its failure to mention his own qualifications. He also characterizes the interview process as unfair, and points out that it lacked "a standard set of questions," a format, or a scoring method.

The New Jersey Constitution requires that Civil Service appointments "shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive." N.J. Const. art. VII, § 1, ¶ 2. The Legislature responded to this constitutional mandate by codifying a competitive testing system to fill vacancies in public positions. From this competitive test evolved the "Rule of Three," which "permits an appointing authority to select one of the three highest scoring candidates from an open competitive examination." Local 518, N.J. State Motor Vehicle Emps. Union v. Div. of Motor Vehicles, 262 N.J.Super. 598, 603 (App. Div. 1993). The constitutional provision is implemented by the Civil Service Act (the Act), N.J.S.A. 11A:1-1 to 12-6, and the regulations promulgated under the Act, N.J.A.C. 4A:4-1.1 to-7.12. The Rule of Three simultaneously affords the authority flexibility in selecting a candidate for promotion, while ensuring a competitive civil service selection process. See In re Foglio, 207 N.J. 38, 45-46 (2011).

The appointing authority need not select the highest ranked candidate of the three. Id. at 45. The appointing authority has "discretion to bypass a higher-ranked candidate `for any legitimate reason based upon the candidate's merit.'" Id. at 47 (quoting In re Hruska, 375 N.J.Super. 202, 210 (App. Div. 2005)). A bypassed candidate may challenge the appointing authority's action by appealing the decision to the Commission. Ibid. (citing N.J.A.C. 4A:2-1.1). "The burden of proving unlawful, arbitrary, or capricious action is on the appellant." Ibid. (citing N.J.A.C. 4A:2-1.4(c)).

At the time Foglio was decided, N.J.A.C. 4A:4-4.8(b) expressly required "a statement of the reasons why the appointee was selected instead of a higher ranked eligible." See id. at 46 (internal quotation marks omitted). "The purpose of that regulation is to guard against favoritism and arbitrary actions by an appointing authority and facilitate[] administrative review. . . ." Ibid. (alteration in original) (citation and internal quotation marks omitted). In other words, the statement helps ensure that the appointing authority's decision "did not violate merit and fitness principles," which lie at the heart of the competitive civil service system. Id. at 41.

The Court found that the statement of reasons is grounded in the constitutional provision governing competitive civil service:

The statement of reasons must provide some insight into the appointing authority's bypass decision. See id. at 48-49. Reasons may include preference for an advanced degree, "or the performance of the applicants in the give-and-take of an interview," or on character and employment references, although "[t]he possibilities are endless." Id. at 49. The Court has required that the statement not be "conclusory" or "unrevealing." Ibid.

In Foglio, the appointing authority explained in its statement of reasons that it bypassed the higher-ranked candidate because the two lower-ranked candidates "best [met the needs of [the Fire Department]." Id. at 42. The Court dismissed the appointing authority's reason as "boilerplate" and "equally applicable to any bypass case." Id. at 41. Noting what it deemed an "utter[] lack[] in specific explanatory language," the Court found the statement of reasons insufficient. Ibid.

We reach the opposite conclusion here. The Borough's statement articulated its reasons for promoting Michigan in sufficient detail. It specifically referred to: (1) Michigan's advanced degree in administrative science and his certification in public administration; (2) his military service in the Marines; (3) his twenty-five year history of public service in the police department and in the community; and (4) his superior performance during the interview.

In our view, the Borough's reasons are anything but boilerplate. Rather, each one of these reasons spoke to Michigan's merit and fitness to serve as the Borough's lieutenant. For one, Michigan possessed a Master's degree in public administration while, as clarified during the appeal to the Commission, Ippolito had no post-secondary degrees. The Borough's preference for Michigan's advanced degree constitutes a sufficient reason under Foglio to sustain its statement of reasons. Id. at 49 ("For example, the City might have relied on a preference for a college degree. . . .").

The Supreme Court made clear that an appointing authority may cite a lower-ranked candidate's "extraordinary character" as a reason to bypass a higher-ranked candidate for promotion. Ibid. In this regard, the Borough cited Michigan's dedication to community service in the Borough including twenty-five years as a volunteer fireman, and two years as its chief. Though Ippolito was also involved in community service, Chief O'Hara questioned the accuracy of several of those representations. Thus, the Borough was entitled to infer that Michigan's many years of community service demonstrated his extraordinary character, which, under Foglio, constitutes sufficient basis to sustain its bypass decision. In this regard, Michigan presented as the stronger candidate relative to Ippolito.

The Borough's preference for Michigan's military service constitutes a valid reason for its bypass decision. The civil service regulations state a clear preference for the promotion of veterans. See N.J.A.C. 4A:4-4.8(a)(3) (giving preference to veterans and disabled veterans under Rule of Three). Thus, we cannot fault the Borough for crediting Michigan's military service as a Marine in Operations Desert Storm and Desert Shield in its statement of reasons.

Finally, the Borough relies on Michigan's interview performance as further support for its bypass decision, as the Supreme Court explicitly allows in Foglio, supra, 207 N.J. at 49. Here, the Borough noted Michigan's responses were clear and articulated his goals and objectives. Indeed, Michigan's interview convinced the three Council members to change their initial impression of him.

Nor do we fault the Borough's statement of reasons for its lack of detail in comparing Michigan's interview performance with that of Ippolito. In other contexts, our case law has recognized how difficult it is to "articulate detailed, subjective analyses of factors such as demeanor and appearance." Cf. State v. Locurto, 157 N.J. 463, 475 (1999) (explaining that trial court's statement that one witness was more credible than another was sufficient, and that deference to trial court's credibility findings was warranted). In this case, the Borough Council members interviewed Michigan and Ippolito, and had an opportunity to observe their demeanor and presentation before unanimously concluding that Michigan was better suited to the position.

We reject Ippolito's argument that the interview process was unfair because Council member Gordon missed the morning interview, or because the interview lacked a standard format or set of questions. The principles of deference caution us to defer to the Commission's conclusion in this regard, particularly because neither the Act nor the Commission's regulations address the manner in which interviews are to be conducted. As expressed by the Commission, there are no regulatory guidelines for interviews, and an appointing authority has been permitted to use its discretion to conduct the interview. See In Re Stallworth, 208 N.J. 182, 194-95 (2011) (explaining that courts should ordinarily defer to an agency's expert interpretation of legislative and regulatory scheme).

In sum, the Borough did far more than what the appointing authority did in Foglio, which was to give a vague one-sentence statement that did not illuminate its reasons for its decision to bypass a higher-scoring candidate.

Ippolito contends in his next argument that the Commission did not review the Borough's bypass decision in a meaningful way, but instead "rubber-stamped" it. Our review of the Commission's written decision in this matter compels us to reject Ippolito's characterization that it was "brief" or otherwise perfunctory. Instead, the Commission's decision was detailed, and demonstrated that the Commission had reviewed the certifications, briefs and other documentation provided by the parties, as well as the decision rendered by the Borough. Accordingly, we defer to the decision of the Commission, as the administrative agency charged with the general administration of the civil service appointment process and specifically responsible for supervision of appointment determinations. See, e.g., In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010) (explaining that "court[s] should give considerable weight to a state agency's interpretation of a statutory scheme that the [L]egislature has entrusted to the agency to administer").

Furthermore, we agree with the Commission that N.J.A.C. 4A:4-4.8(b)(4) did not require that the statement of reasons provide a detailed comparison of each bypassed candidate's qualifications. Accordingly, we reject Ippolito's argument regarding the sufficiency of the Commission's review of the Borough's bypass decision and statement of reasons.

Ippolito further contends that the Commission "continues to act arbitrarily, capriciously and unreasonably" to avoid its statutory duty to review bypass decisions, and points to the Commission's amendment to N.J.A.C. 4A:4-4.8(b)(4), which deleted the requirement for a statement of reasons, as evidence of the Commission's approach to its reviews. He argues the amendment "evidences the lack of interest at the Commission in holding an appointing authority's feet to the fire."

The record demonstrates that the Borough approved the resolution promoting Michigan to the position of police lieutenant on March 20, 2012, prior to the effective date of the rule change, which was May 7, 2012. Therefore, the amendment does not govern the Commission's obligation to review the Borough's statement of reasons and bypass decision. We conclude that Ippolito's challenges to the Commission's review of the Borough's bypass decision lack merit.

While we cannot speculate on the Commission's review of future bypass appeals, we generally note that the Summary of Rule Proposal filed by the Commission in support of the rule change stated that it was not the Commission's intention to avoid its responsibility to review bypass decisions:

Ippolito's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.