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New Jersey Employment Law Decision Examines Use of the Rule of Three in Civil Service List Bypass Appeals.

The Appellate Division of New Jersey’s Superior Court recently examined the use of the “Rule of Three” in New Jersey civil service list bypass appeals in the case of In the Matter of Antonio Salters, Fire Fighter, Township of Hillside.



Salters applied to become a firefighter for the Township of Hillside, New Jersey.  He passed the examination and ranked fourth out of forty eligible candidates on an open competitive employment list.  Thirteen candidates on the list were ultimately hired, but the Township exercised the “Rule of Three” to skip Salter on the list.  Salter appealed his bypass to the New Jersey Civil Service Commission.

The Township explained that part of the hiring process was an interview overseen by the mayor.  After the interview, the mayor sent a letter to the chief of the Hillside Fire Department asserting that Salters lacked honesty and candor based on his answers.  The mayor asserted that he lied about being a lifelong resident of Hillside because he went to high school in Newark (which Salter disclosed on his application). The mayor also claimed that Salter was not sufficiently enthusiastic about being a firefighter.  The mayor also claimed to have conducted research which “purportedly revealed that Salters was entangled in a pending criminal matter dealing with his father and may have lied on his college application to receive financial aid.”

Salter argued that be was actually bypassed because his father was a political rival of the mayor, the person who determined the appointments.  The Township countered by pointing out that it had hired Salter’s brother — who ranked twenty-second, far below Salter – as a firefighter from the same list.

Based on the allegations in the papers filed, the New Jersey Civil Service Commission determined that Salters’s allegations were insufficient to meet his burden of proof, and that his allegations were mere speculation, and therefore denied him an evidentiary hearing, and denied his appeal based on the written submissions.

Salters then appealed to the Appellate Division.


The Appellate Division’s Opinion

The Appellate Division explained that:

the Rule of Three permits an element of hiring discretion, allowing an appointing authority to select one of the three highest scoring candidates from an open competitive examination.  That rule… has governed the certification of candidates to the appointing body as well as the appointing body’s hiring discretion for over a century. In essence, the appointing authority must select from one of the top three candidates ranked on the list.

However, the Rule of Three does not stand as an immutable or total bar to the application of other important criteria’by a government employer. [T]he appointing authority retains discretion to bypass a higher-ranked candidate for any legitimate reason based upon the candidate’s merit.” Attempted deception and inferior interview performance are legitimate reasons to bypass.  Retaliation, of course, does not qualify as a legitimate reason.

The Appellate Division explained that Salters allegations were a sufficient showing to require the Township to proffer its purported reasons for exercising the Rule of Three.  The Township only raised the lack of enthusiasm and lack of candor about whether he was a lifelong Township resident in its arguments to justify its actions – both of which the court explained were legitimate, if true.  However, it rejected the lack of candor because he fully disclosed that he had gone to school in Newark, not Hillside. Disclosing this fact did not appear to the court to be deception by Salter.  It also found the argument about lack of candor to be too subjective to determine without an evidentiary hearing.  Moreover, the court found the fact that the Township and Civil Service Commission simply ignored the Township’s other purported reasons of Salters’s father’s alleged criminal matter and dishonesty on Salters’s college application telling because it implied that they were not true, and therefore tended to make Salter’s claim of being passed over for retaliatory purposes more plausible.

For these reasons, the Appellate Division found that the Civil Service Commission ignored relevant evidence, used arbitrary and conclusory reasoning rather than conducting a sufficiently thorough examination.  Despite this, the Appellate Division did not order that Salter be reinstated.  Rather, it vacated the New Jersey Civil Service Commission’s decision, and ordered that it reconsider the appeal after a fact-finding hearing conducted by an administrative law judge in the New Jersey Office of Administrative Law.


The Bottom Line

Two competing values were at play in this case.  First, the Rule of Three allows civil service employers to use legitimate factors that may not show up in a written examination to ensure that the best qualified public servants are hired.  However, this is counterbalanced by the very purpose of the New Jersey Civil Service System itself, which is to ensure that politics, nepotism, retaliation, and discrimination are removed from government employment decisions.  Therefore, requiring that an evidentiary hearing be held to examine the facts by actually hearing the witnesses themselves is the best way to protect these two valuable goals.

For government employees and applicants for government employment, the takeaway is that there is an avenue to challenge unjust removal from a civil service hiring or promotion list.  Those who pursue list bypass appeals for improper use of the Rule of Three should get a fair day in court.


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