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In the Matter of Nicholas R. Foglio

July 19, 2011

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


The opinion of the court was delivered by: Justice Long

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

IMO Nicholas R. Foglio (A-16-10) (066482)

Argued March 1, 2011 -- Decided July 19, 2011

LONG, J., writing for a majority of the Court.

The issue before the Court is whether the statement of reasons issued by the appointing authority adequately explained why a candidate for the position of firefighter was bypassed for appointment in favor of two candidates who ranked lower on a competitive civil service examination.

In 2007, the City of Ocean City (the City) sought to fill three vacant firefighter positions. On May 24, 2007, a list of eligible candidates for the positions was certified by the Civil Service Commission (Commission) to the City, the appointing authority. Each candidate on the eligible list was ranked according to scores obtained on a competitive examination. Nicholas Foglio ranked second on that list. At the time the list was certified, Foglio had served for eight years as a fireman/emergency medical technician (EMT) in multiple volunteer fire departments, logging over one-thousand total hours. He was licensed by the state as an EMT and received a number of state and county certifications in relevant skill sets, including confined space awareness, confined space operations, rope rescue, fire fighting, fire attack, and truck operations. Foglio was the only candidate on the eligible list with any prior firefighting experience and training.

On July 11, 2007, the City appointed eligible candidates ranked first (a student-teacher), third (a bartender), and fourth (a lifeguard), bypassing Foglio. In accordance with the provisions of N.J.A.C. 4A:4-4.8(b)(4), the City reported to the Department of Personnel (DOP) that it had bypassed Foglio, a higher-ranked candidate, because the two lower-ranked eligible candidates "best meet[] needs of Department." Foglio appealed to the Division of Local Human Resources Management (LHRM), which determined that the City properly disposed of the certification pursuant to the Rule of Three articulated in N.J.A.C. 4A:4-4.8(a)(3), and provided a proper statement of reasons in compliance with N.J.A.C. 4A:4-4.8(b). Foglio sought review by the Commission. The Commission concluded that Foglio had failed to satisfy his burden to show by a preponderance of the evidence that the appointing authority's decision to bypass him was improper. In ruling, it observed that the appointing authority selected two lower-ranked eligibles because "they best met the needs" of the fire department. Because Foglio 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 [Foglio's] name on the Fire Fighter (M2246D), Ocean City, eligible list was proper."

Foglio appealed, and the Appellate Division affirmed. The panel explained that, "[i]n 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." The panel concluded that, ultimately, a candidate who challenges the decision of an appointing authority bears the burden of submitting facts tending to show "improper motives," like "age or gender discrimination or anti-union animus." Because the instant record "contain[ed] no evidence of unlawful motive," the panel upheld the Commission's determination.

The Supreme Court granted Foglio's petition for certification.

HELD: An appointing authority that chooses to bypass a candidate that ranked higher on a competitive civil service examination must provide a statement of "legitimate" reasons for the bypass. Where, as here, the reason advanced was boilerplate, equally applicable to any bypass case and utterly lacking in specific explanatory language, it was not sufficient to satisfy the appointing authority's reporting obligation.

1. The New Jersey Constitution prescribes that "[a]ppointments and promotions in the civil service of the State, and of such political subdivisions as may be provided by law, 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; N.J.S.A. 11A:1-2(a). The merit and fitness principles underlying that constitutional provision are implemented by the Civil Service Act and the regulations promulgated thereunder. A complete certification consists of "three interested eligibles for the first permanent appointment, and the name of one additional interested eligible for each additional permanent appointment." N.J.A.C. 4A:4-4.2(c)(2). However, no right accrues to a candidate whose name is placed on an eligible list. Under the Rule of Three, after a list of at least three candidates is certified, the appointing authority has the discretion to select from among the top three candidates in filling a vacancy.

N.J.S.A. 11A:4-8. The purpose of the Rule of Three is to limit, but not to eliminate, discretion in hiring.

Once the appointing authority selects the candidate(s), the regulations promulgated by the Commission require that it file a report with the DOP. N.J.A.C. 4A:4-4.8(b). If the appointing authority bypasses a higher-ranked candidate, it "remains bound" to provide a "statement of the reasons why the appointee was selected instead of a higher ranked eligible." N.J.A.C. 4A:4-4.8(b)(4). That regulation guards against favoritism and arbitrary actions by an appointing authority and facilitates administrative review by the DOP. A candidate who is bypassed may challenge the hiring decision of the appointing authority and may appeal to the Commission. N.J.A.C. 4A:2-1.1. The burden of proving unlawful, arbitrary, or capricious action is on the appellant. N.J.A.C. 4A:2-1.4(c). (pp. 6-13)

2. At issue here is whether the statement of reasons issued by the City was adequate. Where an appointing body chooses to bypass a candidate that ranked higher on a test, that decision is facially inconsistent with merit and fitness principles unless the appointing authority provides a statement of "legitimate" reasons for the bypass. Without those reasons, the DOP can have no certainty that the appointment process was not exercised arbitrarily and would have no basis for review. The boilerplate advanced by the City as an explanation for the bypass here was inadequate insofar as it failed to provide any real enlightenment whatsoever as to why the bypass occurred. The "best meets needs of Department" explanation fails to reveal anything about the bypass decision. The required statement needs to address the reasons why a higher ranked candidate was bypassed. What is not permitted is the kind of conclusory, unrevealing statement issued in this case that did not explain the selection process or otherwise assure that the bypass of a higher-ranked candidate was not arbitrary. In that respect, the Commission has expended much time and effort on the notion that Foglio has not borne his burden of proving that the bypass decision was arbitrary or discriminatory. On the contrary, the City that was obliged to provide a statement of legitimate "reasons why the appointee was selected instead of a higher ranked eligible." N.J.A.C. 4A:4-4.8(b)(4). In the absence of such reasons, the appointment is presumably in violation of the principles of merit and fitness, and it is the City that bears the burden of justifying its action. (pp. 13-15)

The judgment of the Appellate Division is REVERSED and thematter is REMANDED to the City of Ocean City for proceedings consistent with the Court's opinion.

JUSTICE LaVECCHIA filed a separate, dissenting opinion, in which JUSTICE HOENS joins, stating that the majority has introduced a new rigidity to the operation of the "Rule of Three," undermining its role in affording appointing authorities discretion to appoint from among the top three persons certified as eligible for appointment to a civil service position. Justice LaVecchia would instead hold that a bypassed candidate has no right to any particular level of detail in the statement of reasons submitted to the DOP and, further, that N.J.A.C. 4A:4-4.8(b) does not vest a bypassed candidate with any additional causes of action or avenues for challenge.

CHIEF JUSTICE RABNER and JUSTICES ALBIN and RIVERA-SOTO join in JUSTICE LONG's opinion. JUSTICE laVECCHIA filed a separate, dissenting opinion, in which JUSTICE HOENS joins.

Argued March 1, 2011

On certification to the Superior Court, Appellate Division.

JUSTICE LONG delivered the opinion of the Court.

The New Jersey Constitution prescribes 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 Civil Service Act, N.J.S.A. 11A:1-1 to 12.6, and the regulations promulgated thereunder, N.J.A.C. 4:4-1.1 to 7.12, in turn, implement those merit and fitness principles. In furtherance of that goal, when an appointing authority*fn1 chooses, under N.J.S.A. 11A:4-8, the so-called Rule of Three, to bypass a candidate who ranked higher on a competitive examination, it must report to the Department of Personnel (DOP) why it did so. N.J.A.C. 4A:4-4.8(b)(4). The purpose for the report is to assure that the appointing power was not exercised arbitrarily and to provide a basis for review.

In this case, a candidate for the position of firefighter was bypassed for appointment in favor of two lower-ranked candidates. The reason advanced by the appointing authority was that the lower-ranked eligibles "best meet[] needs of Department." The candidate challenged the sufficiency of the reason, which was upheld both administratively and by the Appellate Division, a conclusion with which we disagree.

The required statement of reasons is the appointing authority's explanation why the higher-ranked candidate was passed over and why that decision did not violate merit and fitness principles. Where, as here, the reason advanced was boilerplate, equally applicable to any bypass case and utterly lacking in specific explanatory language, it was not sufficient to satisfy the appointing authority's reporting obligation. We therefore reverse and remand the case to the appointing authority for the issuance of a proper statement of reasons.

I.

In 2007, the City of Ocean City (the City) sought to fill three vacant firefighter positions. On May 24, 2007, a list of eligible candidates for the positions was certified*fn2 by the Civil Service Commission (Commission) to the City, the appointing authority. Each candidate on the eligible list was ranked according to scores obtained on a competitive examination. Nicholas Foglio ranked second on that list.

At the time the list was certified, Foglio had served for eight years as a fireman/emergency medical technician (EMT) in multiple volunteer fire departments, logging over one-thousand total hours. He was licensed by the state as an EMT and received a number of state and county certifications in relevant skill sets, including confined space awareness, confined space operations, rope rescue, fire fighting, fire attack, and truck operations. Foglio was the only candidate on the eligible list with any prior firefighting experience and training.

On June 15, 2007, the City conducted interviews of Foglio and the other candidates. On July 11, 2007, the City appointed eligible candidates ranked first (a student-teacher), third (a bartender), and fourth (a lifeguard), bypassing Foglio.

In accordance with the provisions of N.J.A.C. 4A:4-4.8(b)(4), the City reported to the DOP that it had bypassed Foglio, a higher-ranked candidate, because the two lower-ranked eligible candidates "best meet[] needs of Department."*fn3

Foglio appealed to the Division of Local Human Resources Management (LHRM), which determined that the City properly disposed of the certification pursuant to the Rule of Three articulated in N.J.A.C. 4A:4-4.8(a)(3), and provided a proper statement of reasons in compliance with N.J.A.C. 4A:4-4.8(b). In its letter, LHRM cited the statement to the DOP that the lower-ranked eligible candidates were appointed because they "best met the needs of the Appointing Authority."

Dissatisfied, Foglio sought review by the Commission. The Commission requested that the City submit a response. In its March 26, 2008, letter, the City asserted that Foglio "failed to offer any evidence to demonstrate that [the City] failed to properly exercise the '[R]ule of [T]hree.'" The City also asserted that it had exercised the discretion vested in it to bypass Foglio.

The Commission concluded that Foglio had failed to satisfy his burden to show by a preponderance of the evidence that the appointing authority's decision to bypass him was improper. In ruling, it observed that the appointing authority selected two lower-ranked eligibles because "they best met the needs" of the fire department. Because Foglio 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 [Foglio's] name on the Fire Fighter (M2246D), Ocean City, eligible list was proper."

Foglio appealed, and the Appellate Division affirmed. The panel explained that, "[i]n 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." A higher-ranked candidate may be bypassed "for any legitimate reason based upon the candidate's merit." Ultimately, a candidate who challenges the decision of an appointing authority bears the burden of submitting facts tending to show "improper motives," like "age or gender ...


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