‘Lame-Duck’ Promotion Overturned

Bruce Polkowitz and Michael Formica were two of three candidates considered for promotion to the position of captain in the Edison Township, New Jersey Police Department. The Township is a non-civil service municipality, and has enacted code provisions setting the criteria for promotions. The provisions involve a command staff review, which is required to consider seniority, job performance, attendance, and a review of each candidate’s personnel file. Each member of the command staff has one vote in a majority-rules system.

Polkowitz had more seniority than Formica and the other lieutenants who were promoted. Polkowitz was unanimously recommended for promotion by the command staff, whereas Formica and the other candidates did not receive unanimous votes for promotion from the command staff. Nonethless, the day after the Township’s mayor lost his reelection bid, the Township’s public safety director promoted Formica over Polkowitz. Shortly afterwards, the former public safety director died.

Polkowitz filed a lawsuit contending that the Township violated its own code by not promoting him. Formica intervened in the lawsuit, contending that his promotion was lawful, and the stage was set for a New Jersey court to decide who should be promoted.

The Court agreed with Formica that the unanimous recommendation from the command staff that Polkowitz be promoted and his seniority did not automatically entitle him to promotion. The Court also found that “the fact that the promotions occurred the day after the municipal elections, where the incumbent mayor was defeated, does not render the promotions illegal.”

However, the Court’s opinion then turned decisively in favor of Polkowitz. The Court found that the timing of the promotion, Polkowitz’s seniority, and the recommendations of the command staff “are factors that establish a prima facie case of arbitrary decision-making, requiring some explanation, even the simplest explanation, for the decision to promote the other candidates over Polkowitz.

“No such explanation was provided here, and because of the untimely death of the former public safety director, further discovery will not bring forth any explanation from him. Moreover, there are no notes from the director that in any way memorialized his thought processes in reaching his promotion decisions. Under these circumstances, where a municipality is unable to provide even the simplest explanation on the record of some rational reason for its decision, the decision cannot stand. The Township here concedes it cannot present any justification for its decision.

“We emphasize that our decision here must not be construed as removing subjective components, which the Township is free to incorporate into its promotional process. Nor should our decision be construed as requiring, in every instance, a statement of reasons for promotional decisions. We limit our decision to the circumstances presented in both of these cases, namely the fact that Polkowitz established a prima facie case of arbitrary municipal action, requiring some explanation for its actions.”

Polkowitz v. Township of Edison, 2014 WL 4109019 (N.J. App. 2014).