New Jersey Civil Service Appeals

Published on: October 15, 2021

Appellate Division Reminds Us That Progressive Discipline Doesn’t Always Apply in New Jersey Civil Service Discipline

The Appellate Division recently issued a decision exploring the limits of progressive discipline in New Jersey civil service discipline in the police-officer-829628_640-300x199 case of Matter of Collins.

Background

Darius Collins was a senior corrections officer at Norther State Prison. He had been a corrections officer for more than two years and had no prior discipline. On January 6, 2019, he was the patrolling supervisor of prisoners in a high security unit. Collins admitted that he left a gate between two floors open. This allowed two prisoners to leave their tier to take unauthorized showers. When they got back the contents of their cells had been destroyed. The prisoners then became out of control and a ten man extraction team was required to get the two inmates back under control.

Published on: December 21, 2020

New Jersey Civil Service Appeal Process is a Two Way Street

by Maurice W. McLaughlin

As we have explained here before, the New Jersey Civil Service appeal process gives civil service employees a meaningful avenue for appealing discipline imposed by their government employers. However, a recent appellate opinion is a good reminder that this meaningful avenue for appeal is a two-way street. police-1714956__340-300x200

The New Jersey Civil Service Appeal Process

When a governmental employer wants to discipline employees with civil service protections, it must first give them a Preliminary Notice of Disciplinary Action (a “PNDA”) listing the charges and specifications against them. Employee then have the right to elect to have a hearing, and whether they do nor not, when final discipline is imposed, the employer must then give the employee a Final Notice of Disciplinary Action (an “FNDA”). For major discipline (a fine or suspension of more than five days, or termination), the employee has 20 days to file an appeal.

Published on: November 19, 2020

Appellate Division Rules that New Jersey Civil Service Appeals Must be Decided Based on Independent Fact-Finding by Administrative Law Judge

by Maurice W. McLaughlin

The State and Federal Constitutions require that when the government takes action against someone that person must receive due process. For Civil Service employees, that process is the disciplinary appeals process. Therefore, in the case of In re Smith, Irvington Township, Department of Public Safety, the Appellate Division ruled that an administrative law judge and the Civil Service Commission could not rely on fact findings in a related but separate criminal trial. This is an cop important New Jersey employment law decision, because to meet the constitutional requirements of due process and fundamental fairness, the New Jersey Civil Service disciplinary appeals process must give a meaningful hearing to effected civil service employees.

Monique Smith was a career officer with the Irvington Police Department. On the day that she was promoted to captain, her boyfriend broke up with her by email. Captain Smith went to his apartment after the ceremony, and followed him when she saw him leaving in his car. Smith admitted driving over a center island during her drive. Smith was charged with eight traffic violations for this drive, including leaving the scene of an accident and reckless driving. The Department suspended Smith because of the charges. Based on this incident, Smith was also criminally charged with second degree aggravated assault, fourth degree unlawful possession of a weapon, third degree possession of a weapon for unlawful purposes, and fourth degree criminal mischief. The aggravated assault was dismissed by the State, and the criminal mischief charge was amended to a disorderly persons offense (a misdemeanor). A jury found Captain Smith not guilty of all the charges. The trial judge also heard the traffic offenses and found Smith guilty of reckless driving.

Prior to the decision, administrative disciplinary charges were filed against Smith for conduct unbecoming a public employee and five other violations stemming from the same conduct. A departmental disciplinary hearing was held and a six month working day suspension without pay was imposed. Smith appealed to the New Jersey Civil Service Commission. The Commission referred the matter to the Office of Administrative Law (the “OAL”) as a contested case. An administrative law judge (“ALJ”) held a two day hearing. The ALJ issued a recommended decision that the charges be upheld but that the penalty be reduced to a ninety day suspension. The ALJ also recommended that Irvington pay half of Smith’s attorneys fees as she was the prevailing party. However, the ALJ based her findings not on the evidence produced at the hearing, but rather wholly on the evidence and findings of fact from the criminal trial. Despite Smith’s exceptions, the Commission adopted the ALJ’s recommended decision, except that the ninety days would be ninety working days and it rejected the award of attorneys fees.

Published on: August 17, 2020

Appellate Division Issues Opinion on Promotion Bypass Appeals Under New Jersey Civil Service Act’s Rule of Three

by Maurice W. McLaughlin

Our employment attorneys represent employees in New Jersey Civil Service appeals and disciplinary proceedings. One frequent matter of contention in the New Jersey Civil Service System is bypassing candidates for selection or promotion under the “Rule of Three.”

The Rule of Three

The New Jersey Civil Service Act requires that hiring and promotion must be based on fitness and merit, determined by competitive Civil Service examinations wherever possible. After a test, the New Jersey Civil Service Commission will issue a list of eligible candidates ranked in order of their scores. Hiring and cop promotion must be made according to the eligible candidates’ ranks on the list. However, an exception exists. The Rule of Three allows New Jersey Civil Service employers to bypass eligible candidates ranked higher on hiring and promotion lists in favor of lower ranked candidates so long as they select one of the top three eligible candidates remaining on the list. After each decision to hire or promote, the Rule of Three evaluation begins all over again. So, for example, if the first candidate is selected, the employer may then select any of the candidates ranked second through fourth for the second spot.

Published on: March 17, 2020

New Jersey Civil Service Disciplinary Appeals

by Maurice W. McLaughlin

A main goal of the New Jersey Civil Service Act is to ensure that employment decisions are based on merit and fitness, and therefore to prevent discrimination, political cronyism, corruption and nepotism from being a consideration. Thus, the Legislature has given civil service office-workers-2-300x200 employees the ability to appeal most employer imposed discipline to the New Jersey Civil Service Commission.

Right to Appeal Major Discipline to the New Jersey Civil Service Commission.

Published on: March 12, 2020

New Jersey Civil Service Commission List Bypass Appeals

by Robert Chewning, Esq.

Hello.

This is Robert Chewning from McLaughlin & Nardi. I am here today to talk about Civil Service Commission appeals, specifically list bypass appeals.

Published on: January 22, 2020

Appeals From Psychological or Medical Disqualification of Applicants for Law Enforcement or Firefighters Positions

by McLaughlin & Nardi, LLC

Good afternoon. We are here today to talk about removal from eligible lists because of failure to pass a psychological exam.

The way the hiring process for firefighters and law enforcement officers in civil service goes in New Jersey is that first there is a job opening. It’s posted. Then the applicant will submit an application and take a test for the job.

Published on: June 14, 2019

U.S. Third Circuit Court of Appeals Applies Overly Broad Analysis in Reaching Right Decision in Layoff Rights Dispute Under New Jersey Civil Service Law

by Maurice W. McLaughlin

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The United States Court of Appeals for the Third Circuit recently issued an opinion interpreting the New Jersey Civil Service Act regarding the reemployment rights of laid off civil service employees. It probably reached the right decision, but its reasoning was far too broad and may have a negative impact on future cases.

In that case, Tundo vs. County of Passaic, two probationary Passaic County Corrections officers with disciplinary problems were laid off as part of a mass layoff for budgetary reasons. They had not completed their “working test period” (probationary period) yet. Thereafter, the County obtained funds and sought to rehire some of the laid off employees. It therefore contacted the New Jersey Civil Service Commission so that the Commission could create a list from which the County could rehire laid off workers, which the Commission did. There was dispute about whether the list was a “revived” list – or not whether this was a revived “regular reemployment” list or a revived “open competitive” list was left unclear. The County challenged the placement of the two laid off officers on the list. The Civil Service Commission rejected the challenge. The County therefore had the officers apply for the job, but as part of the application process the County required them to sign a release of their right to sue the County. They refused to sign and the Civil Service Commission removed their names from the list. The officers then sued under Section 1983 of the Civil Rights Act of 1871, arguing that their due process rights were violated by their removal from the list. The Third Circuit disagreed, holding that employees do not have a property right to their position on a reemployment list.

The decision was correct in this case because the officers had no right to be on a special reemployment lists. However, in many cases, other officers do have a legal right to be on employment or remployment list, which would give them a “property interest” triggering due process protections before their governmental employer could remove them.

Published on: July 11, 2018

McLaughlin & Nardi’s Employment Attorneys Successfully Appeal Psychological Disqualification of Applicant for New Jersey Correction Officer Position.

by Maurice W. McLaughlin

New Jersey’s Civil Service System is designed so that government employees are hired based on their merit, not on nepotism, favoritism, cronyism, bribery or political connections. New Jersey’s Civil Service laws and regulations do this by setting up a system where candidates are tested and graded objectively against other applicants. They are then ranked according to their scores and other qualifications, and hired based on their rank. This testing and ranking system is administered by the New Jersey Civil Service Commission (formerly known as the Merit System Board).

One of the areas where merit is most critical is in the selection and hiring of law enforcement officers, given the vast powers and responsibilities our society places on their shoulders. As a result, the hiring process is significantly more intense than for the hiring of other civil service employees. In addition to a written test, there are also physical examinations and intense background screening.

All of these screening criteria can – and must be – objectively reviewed. However, one additional area of the law enforcement screening process can allow an examiner’s subjective bias to creep through into the testing results. This area is the psychological screening for candidates for New Jersey law enforcement jobs. Obviously this is a legitimate and important line of inquiry necessary before giving young men and women weapons and the power to arrest people. However, subjective biases can influence an examiner’s reading of the examination results. Continue reading

Published on: January 11, 2018

United States Third Circuit Court of Appeals Extends Winters Doctrine, Further Limiting New Jersey Government Employees’ Right to Appeal Wrongful Employment Decisions

by Maurice W. McLaughlin

Our employment lawyers represent many honorable New Jersey employees in disputes with their governmental employers.

The Winters Doctrine

As I wrote in a previous post, in 2012 the New Jersey Supreme Court created a serious hurdle for public employees. In the case of Winters v. North Hudson Regional Fire and Rescue, the Supreme Court held that an adjudication by the Civil Service Commission of allegations that a termination was illegal retaliation (even raised tangentially) barred subsequent litigation for violation of New Jersey’s Conscientious Employee Protection Act (known as “CEPA”) based on the same facts in a lawsuit in New Jersey Superior Court. The Appellate Division of New Jersey’s Superior Court subsequently held that such a bar applied to claims of retaliation raised in disciplinary appeals under both CEPA and New Jersey’s Law Against Discrimination (known as the “LAD”).