New Jersey Civil Service List Removal Because of Psychological Test Results Appeals Procedures Examined by Appellate Court

New Jersey Civil Service List Removal Appeals

Under New Jersey civil service law, employment decisions, including hiring, must be based solely on merit.  The civil service system therefore employs examinations which objectively test a candidate’s fitness.  Successful candidates are then placed on a hiring list in order of their scores, with certain preferences for veterans.  New employees must then be hired off the list in order of their placement, subject to the Rule of Three.  Candidates for positions as law enforcement officers or fire fighters includes testing of their psychological fitness.  A candidate may be removed from a hiring list for failure of these examinations.

However, because New Jersey’s civil service laws are designed to ensure that employment decisions are based on merit and not because of favoritism, nepotism or discrimination, there is a robust due process procedure for list removal appeals.   The candidate first appeals his removal from the list with the New Jersey Civil Service Commission.  Thereafter, the unsuccessful party may appeal an unfavorable decision to the Appellate Division of the Superior Court, and then ultimately to the New Jersey Supreme Court (which only hears a small, select number of appeals).

F.T.’s Case

The Appellate Division recently reviewed the procedures for appealing removal from a civil service hiring list based on a failed psychological examination in the case of In the Matter of F.T., Police Officer (M0029D), Clifton.

The Clifton Police Department sought to hire F.T. off an eligible list.  He was sent for a psychological examination, but the evaluator did not recommend him for appointment.  Clifton notified F.T. of the results and his removal from the hiring list.  F.T. appealed his removal from the hiring list to the New Jersey Civil Service Commission.

Clifton was required to submit its report within 20 days to the Civil Service Commission, but while it ultimately did submit it, it was submitted well after the 20 day deadline.  F.T., as petitioner/appellant, was required to submit his own independent report from his own psychological professional supporting his argument that he was psychologically fit to serve as a law enforcement officer within 90 days pf filing his appeal.

F.T.’s attorney waited for the report from Clifton, and then submitted his report.  However, the report was submitted after the 90 deadline.  F.T.’s attorney never requested an extension for good cause as provided by the rules.  The Civil Service Commission gave F.T.’s attorney the opportunity to show good cause why it should accept the report.  She responded that the late receipt of Clifton’s report, problems scheduling the evaluation, and her own vacation were good cause for acceptance of the late-filed report.  The Commission rejected these reasons and dismissed F.T.’s appeal.  The Commission explained that because granting the appeal could impact the candidates who were lower on the list but were hired when he was removed, it was important that the appeal be handled expeditiously.  The Civil Service Commission noted that the requirement for filing an appellant’s report within 90 days is not contingent upon receiving the employer’s report first, and that F.T.’s attorney never requested an extension

The Appellate Division’s Opinion

F.T. appealed to the Appellate Division of the Superior Court of New Jersey.  The Appellate Division affirmed the Civil Service Commission’s dismissal of F.T.’s appeal.  The Appellate Division explained that courts normally defer to the determinations of government agencies such as the Civil Service Commission unless they are arbitrary or capricious, and it found nothing arbitrary or capricious in the Commission’s decision.

Why This Was a Terrible Result

The Civil Service Commissions regulations provide that the employer has the burden of proof in these appeals.  The regulation governing the burden of proof in New Jersey civil service appeals provides: “The appellant shall have the burden of proof, except for medical or psychological disqualification appeals, where the appointing authority [i.e., the employer] shall have the burden of proof.”  The regulation governing the submission of reports reads:

(d) Upon receipt of a notice of an eligible’s appeal, the appointing authority shall submit to the Civil Service Commission, within 20 days, all background information, including any investigations and all complete medical, psychological, and/or psychiatric reports that were the basis for the removal request.

1. The appointing authority shall also furnish to the appellant’s attorney or to a New Jersey licensed psychologist or psychiatrist of the appellant’s choice upon request all of the information supplied to the Civil Service Commission.
2. Any appointing authority failing to submit the required materials within the specified time may have its request for removal denied, and the eligible’s name may be retained on the eligible list.

(e) The appellant may submit to the Civil Service Commission a report from a New Jersey licensed physician, psychologist, or psychiatrist of his or her own choosing, which must be submitted within 90 calendar days, which may be extended for good cause, of the filing of his or her appeal to the Civil Service Commission. The appellant shall furnish the appointing authority with copies of all submissions to the Civil Service Commission. See (f) below for report requirements.

(f) The Civil Service Commission may extend the time period for filing the required reports for good cause….

By not allowing the appellant to have sufficient time to receive and incorporate the employer’s report in his own, the applicant is essentially flying blind, not knowing why he was deemed psychologically unfit.  It essentially violates the regulation and places the burden of proof on the applicant.  This is a clear violation of due process.

Moreover, by dismissing F.T.’s appeal for filing his report late, when not penalizing the employer, likewise holds the appellant to a different standard and places the burden on him, rather than the employer as the regulations state.  It is all the more egregious because the regulation provides that “Any appointing authority failing to submit the required materials within the specified time may have its request for removal denied, and the eligible’s name may be retained on the eligible list.”   Indeed, it is mandatory for the employer to submit its report and to submit it on time, but it is permissive for the employee to file a report by his own independent psychological expert (thus, the employee should not be penalized for not submitting a report, but it would be difficult if not impossible for him to prevail if he doesn’t).

This decision holds employees to a different standard than employers, turns the burden of proof on its head, violates of the regulations, and is an affront to due process.

However, all hits could have been avoided had F.T.’s attorney had submitted the report in within the 90 day period, or requested an extension if she couldn’t.

The Takeaway

It is vitally important for an appellant to submit the report within the required timeframe or make an early request for an extension if he can’t.

Contact Us

Our New Jersey employment attorneys handle all aspects of New Jersey civil service law, including appeals from list removal for medical, psychological, and other reasons.  Call (973) 890-0004 or fill out the contact form on this page to schedule a consultation with one of our New Jersey civil service lawyers.  We can help.