Judge Rules Against Toms River Cops in Lawsuit Against Township

A federal judge has dismissed a complaint filed by several Toms River police officers who claimed they were not promoted after superior officers lowered their test scores.

U.S. District Judge Michael A. Shipp dismissed the case filed against the township by police officers Paul Kaminski, Stephen J. Russell, Frank T. Palino and Richard T. Ross, alleging former police chief Michael Mastronardy, retired deputy police chief Vincent Pedalino and other superior officers lowered their scores on a promotional exam in order to promote other, more personally favored officers to the positions of sergeant and lieutenant in the department.

In the case, the officers alleged that departmental leaders exercised favoritism when promoting officers during tests given in 2006 and 2011, and that the favoritism was implemented during the subjectively graded portion of the exams, known as the "evaluation" section.

The plaintiffs sought to have the officers who were ultimately promoted to be demoted, and for themselves to gain the titles.

Kaminski, specifically, claimed that in a 2008 meeting with Mastronardy, the former chief told him that "a little birdie" told him there were problems with his exam and, that if he had not witnessed first-hand the problems with the 2006 police entrance exam and the June 2008 captains promotions, he would not have believed what Kaminski was alleging. In that conversation, Kaminski said, the chief told him an investigator would be hired to probe the 2006 exam process.

However, the suit claimed, Mayor Thomas Kelaher would not go along with the hiring of an investigator since the issue was not "on the front burner."

Eventually, the Ocean County Prosecutor's Office was contacted regarding the exam process, however Kaminski could not be reached, Shipp's ruling stated, and the matter was set aside.

Shipp ruled that the plaintiffs in the case waited until 2010 to file suit, well after the two year statute of limitations had run out.

In the 2011 matter, Shipp also ruled against the plaintiffs, stating, "Even if Plaintiffs were eligible for promotion, they cannot presume that they would obtain a promotion."

"Plaintiffs have failed to put forth any evidence to show that they have a procedural or substantive due process right to a promotion or, even if they were eligible for a promotion, that they had a vested right to appointment," the judge ruled.

While a government employee has a property right to retain his or her position, he or she does not "have a right to a promotion or to a fair and transparent promotional examination process," according to the law.

Shipp also dismissed the plaintiff's first ammendment claim alleging retaliation over their complaints about the testing procedure, ruling that the case does not delve into matters of public policy or public safety, a standard for a federal judicial consideration.

"Plaintiffs’ lawsuit is not about the alleged misconduct of Defendants in regards to protecting the public’s safety," he ruled. "It is a personal dispute between Plaintiffs and Defendants regarding alleged misconduct regarding the administration of a promotional exam."

According to court documents filed this week, the plaintiffs in the case plan to appeal the ruling to the third circuit court of appeals. That case has yet to be filed.