Articles Tagged with New Jersey Civil Service Lawyers

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A New Jersey appeals court recently issued an important decision in the case of In the Matter of William R. Hendrickson, Jr., Department of Community Affairs, in which it examined two core concepts in New Jersey’s Civil Service employment law: progressive discipline and the “deemed accepted” rule.

Background

William Hendrickson was a fire inspector for the New Jersey Department of Community Affairs (the “DCA”). He was alleged to have made vulgar, misogynistic comments toward a female supervisor who had changed his work assignment. The comments were alleged to have been made in a public setting, with members of the public present. The DCA initiated disciplinary proceedings and terminated Hendrickson’s employment. Hendrickson appealed to the Civil Service Commission. The matter was transferred to the New Jersey Office of Administrative Law (the “OAL”) where an administrative law judge (“ALJ”) conducted a trial. The ALJ found that Hendrickson did make the remarks, and that they merited discipline. However, using the concept of progressive discipline, the ALJ found that a six month suspension was more appropriate than termination given Hendrickson’s lack of any prior discipline during his eighteen month employment.

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council-of-state-535721__340-1-300x103The financial burden of a civil service appeal discourages many employees from filing.  However, a successful employee may be able to recover the attorneys fees she spent on the appeal.  Our attorneys handle civil service appeals for all of New Jersey’s Public Employees, such as police officers, teachers, firefighters, and administrative persons.  Because we are concerned about the impact on our clients’ pocketbooks, we are always looking to see if we can shift the financial burden to the public employer.

This is important to the individual employee, of course, but also to the public at large.  America is a democracy, and one of the key points to any form of a democracy is access to the government.  Since the judiciary is one of the coequal branches of  government, access to the court house is an important right.  Shifting the costs of litigation to the employer after an employee’s successful appeal is one way to keep the doors to justice open to less well-off employees.

This principal was applied recently by in the case of In re Anthony Hearn, heard by the Appellate Division of the Superior Court of New Jersey.  Anthony Hearn was a certified public accountant in the New Jersey Office of Compliance Investigations.  He was an “unclassified” employee of the State of New Jersey.  Hearn was demoted for allegedly violating certain provisions of the State’s anti-discrimination policy.

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stock-photo-close-up-of-old-english-dictionary-page-with-word-civil-service-408848104One of the prime methods of hiring, firing, promotion and discipline of  public employees is New Jersey’s civil service.  Attorneys from our firm represent employees in appeals from actions by their civil service employers.  One of the most significant issues in the civil service hiring process our employment attorneys have encountered is when government employers exercise the “Rule of Three.”

New Jersey’s Constitution requires that hiring in the civil service system must be based on merit and fitness, and that a candidate’s merit and fitness be determined by a competitive examination.  The system put in place by New Jersey’s Civil Service Act and the regulations drafted by New Jersey’s Civil Service Commission provide that impartial tests which examine a candidate’s competency are announced, qualified candidates take the test, and then the Civil Service Commission creates a list of “eligibles” from which the candidates must be hired.  The highest scorers will receive the top spot on the list.  Candidates are to be hired in accordance with their place on the list.

However, an exception applies to this process.  Public employers may use the “Rule of Three” to pass over the highest scorer.  In the recent case of In re Foglio, New Jersey’s Supreme Court had the chance to examine the Rule of Three.  The first thing the Supreme Court did was to explain what the Rule of Three was all about.  The Supreme Court explained: “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. The Rule of Three recognizes employment discretion and seeks to ensure that such discretion is not exercised in a way inconsistent with `merit’ considerations.  While ensuring that competitive examinations winnow the field of candidates, the Rule of Three does not stand as ‘an immutable or total bar to the application of other important criteria” by a government employer’.”