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Local 518 v. Division of Motor Vehicles

Decided: March 16, 1993.


On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County.

Baime and Wallace. The opinion of the court was delivered by Baime, J.A.D.


[262 NJSuper Page 600] The Civil Service Act (N.J.S.A. 11A:1-1 through :12-6) and its implementing regulations (N.J.A.C. 4A:4-1.1 through -7.12) provide generally that an appointing authority must select one of the three highest scoring eligible candidates from an open competitive or promotional examination. This provision is commonly known as the "rule of three" and is intended to guaranty the appointing authority an opportunity to exercise limited discretion in the selection and promotion of public employees. Although the appointing authority is not required to appoint or promote the highest scoring candidate, it must provide the Department of Personnel (DOP) with a statement of reasons

why a higher ranked eligible was not selected. At issue here is whether an unsuccessful candidate is entitled to be apprised of the reasons why a lower ranking eligible was promoted.

The facts are not in dispute. Plaintiff is a labor union representing inspectors, examiners and safety specialists employed by the Division of Motor Vehicles (DMV). A member of the union, employed by the DMV, was eligible for promotion to a supervisory position. He was ranked thirty-sixth on the promotional certification issued by the DOP on May 29, 1990. The promotional certification involved thirty-six available positions and over one hundred interested eligibles. On August 10, 1990, the employee was notified by the DMV that another candidate had been selected, this despite the fact that he was the highest ranking eligible interested in that position. In response to the employee's request for an explanation, the DMV noted that the individual who had been promoted was one of the three highest ranking eligibles on the promotional examination. The DMV subsequently declined plaintiff's request for a further explanation of the reasons for not selecting the named employee. No administrative appeal of the promotional certification was filed by the employee or plaintiff.

Instead, plaintiff instituted an action in the Law Division, seeking a declaratory judgment that all employees were entitled to a statement of reasons when not selected for promotion under the "rule of three." While conceding that the Civil Service Act and the applicable regulations did not require the disclosure of this information, plaintiff invited the court to exercise its sweeping constitutional authority to review administrative actions and compel the DMV and the DOP to apprise unsuccessful candidates of the reasons why they were not promoted. The Law Division declined and granted defendant's motion for summary judgment. This appeal followed.

At the outset, we question whether the Law Division had jurisdiction to decide the dispute. Ordinarily, review of both the quasi-judicial and regulatory actions of state administrative

agencies must be sought in the Appellate Division. R. 2:2-3(a)(2); see also Pascucci v. Vagott, 71 N.J. 40, 52-53, 362 A.2d 566 (1976); D'Arrigo v. State Bd. of Mediation, 228 N.J. Super. 189, 198, 549 A.2d 451 (App.Div.1988), rev'd on other grounds, 119 N.J. 74, 574 A.2d 44 (1990); Jersey City v. Dept. of Envir. Protection, 227 N.J. Super. 5, 14, 545 A.2d 774 (App.Div.), certif. denied, 111 N.J. 640, 546 A.2d 551 (1988). The Appellate Division's jurisdiction may not be circumvented by instituting a declaratory judgment action where the essence of the relief sought is the review of quasi-judicial, ministerial or discretionary agency action. See Ivy Hill Park v. Property Liability, 221 N.J. Super. 131, 141, 534 A.2d 35 (App.Div.1987), certif. denied, 110 N.J. 188, 540 A.2d 183 (1988); Degnan v. Nordmark & Hood Presentations, Inc., 177 N.J. Super. 186, 191, 425 A.2d 1091 (App.Div.), appeal dismissed, 87 N.J. 427, 434 A.2d 1098 (1981); Pressler, Current N.J. Court Rules, Comment 3 to R. 2:2-3 (1993). We also harbor reservations concerning whether plaintiff exhausted its administrative remedies. See Garrow v. Elizabeth General Hospital and Dispensary, 79 N.J. 549, 559, 401 A.2d 533 (1979); In the Matter of Stoeco Development, Ltd., 262 N.J. Super. 326, 335, 621 A.2d 29, 33 (App.Div.1993); R. 2:2-3(a)(2). This deeply embedded judicial principle ensures that a body possessing special expertise in the area will hear the claim in the first instance. City of Atlantic City v. Laezza, 80 N.J. 255, 265, 403 A.2d 465 (1979); K. Davis, 4 Administrative Law Treatise, § 26:1 (1983). We put these procedural problems aside, however, because defendants have not filed a cross-appeal or otherwise objected to our consideration of the question presented. All parties agree that the case is ripe for resolution. We thus consider the issues on the merits.

We find no basis to compel an appointing authority, as a matter of course, to apprise an unsuccessful candidate of its reasons for promoting a lower ranking eligible individual. Although full disclosure might well be the preferable policy, we discern no jurisprudential principle which permits us to intervene

and impose whatever views we might privately harbor as to what the rule should be.

In reaching this Conclusion, we find the legislative and administrative history enlightening. The "rule of three" has long been the law in New Jersey. See L. 1930, c. 176, § 24, at 620. As we mentioned earlier, the rule permits an appointing authority to select one of the three highest scoring candidates from an open competitive examination. Prior to its repeal and the simultaneous enactment of the present civil service laws, N.J.S.A. 11:10-6.1 required an appointing authority to maintain in its personnel record a statement of reasons whenever it appointed or promoted an individual having a lower score than another eligible candidate. L. 1974, c. 160, § 3 at 652-54. The statute also permitted any person denied an appointment to submit facts for review by the Civil Service Commission. Ibid. An implementing regulation required the appointing authority to file with the Department of Civil Service a "statement of [its] reasons for non-selection of the higher ranking eligibles," and to "notify all interested eligibles of the certification results." N.J.A.C. 4:1-12.18. (repealed by R. 1988 d. 259 (1988)). N.J.S.A. 11:10-6.1 was not re-enacted when the Legislature adopted the Civil Service Act in 1986. In a somewhat similar vein, portions of the older regulation were not repromulgated. Although the current regulation retains the mandate that the appointing authority advise the DOP of its reasons for not selecting a higher ranking eligible, it does not ...

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