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In re Foglio

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 24, 2010

IN THE MATTER OF NICHOLAS R. FOGLIO, FIRE FIGHTER (M2246D), OCEAN CITY.

On appeal from a Final Administrative Decision of the Civil Service Commission, CSC Docket No. 2008-2434.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 12, 2010

Before Judges Cuff and Payne.

Appellant, Nicholas R. Foglio, appeals from the final administrative decision of the Civil Service Commission (Commission)*fn1 that upheld the decision of the City of Ocean City (the City) to bypass appellant on the eligible list for appointment as a firefighter. On appeal, appellant argues that the decision is based solely on a factually unsupported and conclusory statement that lower ranked persons on the eligible list were appointed to open firefighter positions because they best met the needs of the fire department. He argues that this simple explanation renders the agency decision arbitrary, capricious and unreasonable. We affirm.

Foglio ranked third on the certified list for firefighter in the City. The list was promulgated on March 16, 2004. Prior to its expiration on November 2, 2007, the City, the appointing authority, bypassed appellant and appointed the second, eighth and tenth ranked eligibles on the list. Foglio appealed the bypass to the Division of Local Human Resource Management (LHRM), which issued a letter on December 17, 2007, finding that the appointing authority properly disposed of the certification pursuant to the "rule of three" articulated in N.J.A.C. 4A:4-4.8(a)3. In its letter, LHRM reported that the appointing authority informed the agency that "the lower ranked eligibles were appointed because they best met the needs" of the City.

Dissatisfied, Foglio sought review by the Commission through a letter dated December 21, 2007. The Commission requested the appointing authority to submit a response. In its March 26, 2008 response, the appointing authority informed the Commission that Foglio "failed to offer any evidence to demonstrate that the City of Ocean City failed to properly exercise the 'rule of three.'" The appointing authority also asserted that it exercised the discretion vested in it to bypass appellant.

In its February 13, 2009 decision, the Commission noted that Foglio bore the burden of proof by a preponderance of the evidence to demonstrate that the decision to bypass appellant was improper. It observed that the appointing authority selected two lower-ranked eligibles because they best met the needs of the fire department. The Commission reminded appellant that placement on an eligible list does not guarantee appointment to a position. Rather, placement on the list only assures a candidate consideration for an open position.

The Commission also determined that the appointing authority had the authority to appoint persons with lesser qualifications than appellant, unless its decision was based on an unlawful motive. Finding that appellant did not assert, much less prove, an unlawful motive, such as discrimination or political influence, the Commission held that "the appointing authority's bypass of the appellant's name on the Fire Fighter (M2246D), Ocean City, eligible list was proper and the appellant has failed to meet his burden of proof in this matter." Therefore, the Commission denied the appeal.

The scope of our review is narrow. An appellate court is not free to substitute its judgment of the disposition of an administrative appeal. We may only intrude if the action is arbitrary, capricious, unreasonable or not supported by substantial credible evidence in the record. In re Carter, 191 N.J. 474, 482 (2007); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

We also must defer to the agency's expertise and superior knowledge of a particular field. Carter, supra, 191 N.J. at 483; Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). We are not bound, however, by an agency's interpretation of the law or its resolution of a purely legal issue. Carter, supra, 191 N.J. at 483.

The New Jersey Constitution requires that appointments and promotions in the career service "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. To further this constitutional imperative, the Legislature authorized the Commission to promulgate regulations and to establish and administer examinations which are prerequisites for appointments to job titles in the competitive division of the career service. N.J.S.A. 11A:4-1; N.J.S.A. 11A:4-1.2.

A vacancy in the competitive division of the career service, or a provisional appointment, initiates the examination process. N.J.S.A. 11A:4-5. After an examination is administered, the Commission produces an eligible list, showing all passing candidates, ranked in descending order of the scores attained. Open competitive and promotional lists are promulgated for three years from the date of their issuance, unless the Commission deems it appropriate to either shorten the duration of the list, or to extend the list by no more than one year. N.J.A.C. 4A:4-3.3(a).

Upon receipt of the list, the appointing authority must appoint one of the top three interested eligibles from the list, provided that preference is given to veterans and specific procedures are followed if a tie exists. N.J.S.A. 11A:4-8; N.J.A.C. 4A:4-4.8(a)3. This "rule of three" was designed to afford an appointing authority some hiring discretion. Terry v. Mercer County Bd. of Chosen Freeholders, 86 N.J. 141, 149 (1981); In re Martinez, 403 N.J. Super. 58, 72 (App. Div. 2008).

In the absence of a discriminatory motive, the appointing authority has the discretion to appoint any one of the top three candidates whom the public employer considers best suited to fill the position. In re Hruska, 375 N.J. Super. 202, 209-10 (App. Div. 2005); Nunan v. N.J. Dep't of Pers., 244 N.J. Super. 494, 497 (App. Div. 1990), certif. denied, 126 N.J. 335 (1991).

The Civil Service Act, N.J.S.A. 11A:1-1 to 12-6, and its implementing regulations, are designed to benefit the public as a whole through provision of an efficient and effective workforce. They are not designed for the special benefit of any individual. Malone v. Fender, 80 N.J. 129, 140-41 (1979); Borough of Park Ridge v. Salimone, 21 N.J. 28, 44 (1956). The only interest accruing to an individual candidate from placement on an eligible list is that he or she will be considered for an applicable position so long as the eligible list remains in force. Nunan, supra, 244 N.J. Super. at 497. Applying the "rule of three," an appointing authority may bypass a higher ranked candidate and appoint a lower ranked one for any legitimate reason based upon the candidate's merit. Hruska, supra, 375 N.J. Super. at 209-10; In re Crowley, 193 N.J. Super. 197, 214 (App. Div. 1984). An appointing authority has the discretion under the "rule of three" to appoint a lower ranked eligible absent any unlawful motive. N.J.A.C. 4A:4-4.8(a)3. An appointing authority is required to notify the Commission of the disposition of the certification by the disposition due date, and to include a statement of reasons why any appointee was selected instead of a higher ranking eligible. N.J.A.C. 4A:4-4.8(b)4; Hruska, supra, 375 N.J. Super. at 209.

A bypassed candidate can appeal to the Commission, which considers the challenge on the written record unless a hearing is required due to a dispute of material fact. N.J.A.C. 4A:2-1.1(d). The appellant bears the burden of demonstrating that the Commission's decision was arbitrary, capricious or unreasonable. N.J.A.C. 4A:2-1.4(c); McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).

Here, the record reveals that the eligible list was certified to the appointing authority on May 24, 2007; it contained fifteen names. Nine of the candidates were removed from the list due to failure to meet the residency requirement or failure to respond to the Notice of Certification. Of the remaining nine candidates, the ninth ranked candidate filed a late response and was not eligible for appointment. The City appointed the second, eighth and tenth ranked candidates and bypassed appellant, the third ranked candidate.

A bypassed candidate has the opportunity to appeal the selection of lower ranked candidates. In doing so, the candidate must submit facts in support of his request for review and bears the burden of proof that the selection of lower ranked candidates was the product of improper motives. N.J.A.C. 4A:4-4.8. Such motives include age or gender discrimination or anti-union animus. See, e.g., Terry, 86 N.J. 141 (failure to promote based on sex discrimination); Crowley, supra, 193 N.J. Super. at 212 (failure to appoint due to union activities). This record, however, contains no evidence of unlawful motive.

We, therefore, affirm the February 13, 2009 order of the Commission dismissing the "Bypass Appeal" filed by appellant.

Affirmed.


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