Articles Tagged with New Jersey Civil Service Lawyers

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Discipline is a major component of New Jersey’s Civil Service system.  Discipline under New Jersey Civil Service law is either “major” or “minor.”

Major Discipline

The main procedural consequence of the difference major discipline and minor discipline is that major discipline can be appealed to the New Jersey Civil Service Commission, while minor discipline can only be challenged in the Superior Court of New Jersey.  Major discipline is civil-servcie-1800s-300x165defined as a suspension or fine of more than five days.  Major discipline includes removal, disciplinary demotion, and suspension or fine for more than five working days.  The touchstone for all civil service disciplinary procedures, however, is that “The theme of fairness threads its way through the notice, hearing, and right of appeal provisions of our Civil Service Act, and finds particular pertinence in those sections requiring that the causes for [discipline, including] removal constituting ‘just cause’ be enumerated with specificity.”

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There are many people who complain that Civil Service is a terrible hindrance to efficient government.  Managers complain that Civil civil-caseService rules hinder their ability to run their organizations by hiring, firing and imposing discipline as they believe is best.  Citizens often complain Civil Service makes it too hard to get rid of “bad apples.”  Employees complain that Civil Service makes promotions and transfers too difficult.  Applicants complain that the Civil Service system makes it too hard to get hired.  All these criticisms are valid, as far as the go.  However, they miss the mark because they focus on the trees but miss the forest.  New Jersey’s Civil Service System was adopted to combat some real and grave problems with state and local government.  Without Civil Service these problems would continue today unchecked.  Civil Service isn’t perfect, but New Jersey is a far better place because of it.

New Jersey has a long history of government corruption; it is by no means a new phenomenon.  This included a “spoils system” rewarding the winners of elections with the ability to award jobs to their supporters, outright bribery, political favoritism, nepotism and outright discrimination in hiring and keeping government jobs.  It was a disgrace.

In 1908 the early twentieth century Progressive Movement led New Jersey to adopt its first Civil Service laws, and to establish the Civil Service Commission to regulate Civil Service practices.  Then, in 1947, a constitutional convention was held at Rutgers University, in which a new state Constitution was adopted.  The goal of the constitutional convention was to reform many areas of New Jersey’s state and local governments.  One area it specifically addressed was Civil Service.  Article VII, section 1 of the New Jersey Constitution of 1947 provided that:

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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.

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On December 6, 2019, the New Jersey Civil Service Commission recently reviewed and rescinded its September 5, 2018 decision which removed an applicant’s name from an eligible list for Jersey City police officer. The case was argued by Maurice W. McLaughlin, Esq., and Robert K. Chewning, Esq.

After the Civil Service Commission made its September 5, 2018 decision, the applicant was required to file an appeal in the Appellate Division of the Superior Court of New Jersey. On appeal, the applicant argued that the Civil Service Commission’s decision was arbitrary, capricious, and constituted an abuse of discretion based on the evidence which established the applicant’s Jersey City residence prior to the August 31, 2016 announced closing date through the date until the present.

The Appellate Division remanded the case to the Civil Service Commission to review the factual record and reconsider its prior decision. On remand, the Civil Service Commission found: (1) that appellant had established by a preponderance of the evidence that he had lived in Jersey City as of the August 31, 2016 closing date; and (2) that the Civil Service Commission had previously erred in reviewing relevant documents including applicant’s motor vehicle address change form, driver’s license, and lease agreement. A copy of the New Jersey Civil Service Commission’s decision can be found here.

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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.

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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).https://www.newjerseylawyersblog.com/wp-content/uploads/sites/195/2018/07/police-officer-sil.-300x254.png

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

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pawn-2430046_960_720-300x209 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”).

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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’.”