Collectively, New Jersey state and local governments are the largest employer in the State. Most of these jurisdictions are governed by the New Jersey Civil Service Act. In New Jersey Civil Service jurisdictions, hiring, firing, promotion and discipline is governed by the Civil Service Act and Regulations. This makes the Civil Service System one of the most important elements in New Jersey employment law.
The Use of Eligible Lists in Hiring and Promotion
Candidates for initial hiring and promotion in the permanent, career, unclassified civil service are selected and appointed based on their placement on eligible lists (also referred to as “certifications”). There are five types of eligible lists: Open competitive lists, promotional lists, regular reemployment lists, police and fire reemployment lists, and special reemployment lists.
Candidates passing open competitive and promotional examination are placed on open competitive or promotional lists after meeting the requirements for the position. A “complete” list requires at least three eligible candidates (referred to in New Jersey Civil Service law as “eligibles”). Qualified candidates are ranked on eligible lists based on their scores and veterans status. Disabled veterans are ranked first, followed by veterans, followed by non-veterans, all ranked in order of their scores in their respective sections. Employers (also referred to as “appointing authorities under the New Jersey Civil Service Commission’s regulations) are required to hire candidates in order of their ranking on the eligible list.
The Rule of Three
The requirement that appointment be made in strict order of rank is subject to one important exception, however. This exception is known as the “Rule of Three.”
Under New Jersey’s Rule of Three, when an employer receives a list it may appoint any one of the top three eligible on the list. Thus, the employer can skip the first two top ranked eligible employees and appoint the third. For example, in a list with four eligibles for only one vacant position, the employer could appoint the first, second or third highest ranked eligibles, but not the fourth. This applies to regular, open competitive lists and promotional lists; it does not apply to reemployment lists.
The Rule of Three and the Veteran’s and Disabled Veteran’s Preferences
One important caveat exists, however. The Rule of Three does not allow an employer to skip an eligible with a disabled veteran or veteran preference on an open competitive list. Veterans and disabled veterans who pass open competitive examinations are placed at the top of the employment list in order of their respective final scores. Disabled veterans must be appointed in order of ranking, then veterans must be appointed in order of ranking. Only then will a non-veteran be appointed, subject to the Rule of Three. Non-veterans cannot be hired until all of the veterans and disabled veterans on the list have been appointed.
The veteran’s preference does not apply to promotional lists, but on promotional lists a non-veteran may not be appointed if the eligible ranked first is a veteran. When a veteran ranks highest on a promotional certification and the appointing authority wishes to appoint a non-veteran, it must show cause why the veteran should not receive the promotion.
The Employer’s Options
Thus, and employer has the following options for making an appointment from a list, in this order.
- First, it can appoint the eligible from a special reemployment list; then
- Second, it can appoint the eligible from a regular or police or fire reemployment lists; then
- Finally, it may appoint any of the three highest ranked interested eligibles from an open competitive or promotional list.
The certification will have a “disposition due date”, by which the employer must notify the New Jersey Civil Service Commission of what it did with the list. The report must include a statement of reasons when the Rule of Three is used. If an employer exercises the Rule of Three and does not choose the top ranked eligible, it must information the Commission and explain why it did so. However, the unsuccessful candidate has no right to see those reasons.
The purpose of the Rule of Three is to give the employer the discretion to choose to appoint whichever of the top three scorers it believes is best suited to fill the first open position. It can thus bypass the highest one or two interested eligibles. However, courts have explained that the Rule of Three does not increase discretion to hire; it limits it. Rather than unlimited discretion, the appointing authority only has the narrow authority to hire from the top three interested eligibles. Thus, the discretion afforded by the Rule of Three is narrow, and must be exercised within the strictures of merit based appointment.
The Rule of Three cannot be used as a means to make discriminatory appointments. Aside from protected classifications in the Law Against Discrimination, discrimination based on political or union affiliations or activity is also prohibited. If discriminatory use of the Rule of Three is found, a broad range of remedies is available to remedy the situation, including voiding the discriminatory appointment. However, the fact that one of the certified eligibles is related to a decision-maker in the appointing authority does not per se eliminate the eligible from being picked under the Rule of Three.
A non-veteran eligible on an open competitive examination who has been passed over under the Rule of Three three times in favor of a lower ranked eligible will no longer be certified, unless otherwise requested by the employer.
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