The Use of New Jersey’s Rule of Three in Civil Service Hiring and Promotion

McLaughlin & Nardi, LLC’s employment attorneys represent New Jersey civil servants and other public employees.

One of the most vexing issues in New Jersey employment law in the public sector is the “Rule of Three.” New Jersey’s Civil Service laws require that hiring and promotion be based on merit and demonstrated ability, where possible through an examination. After an application is complete, an “eligible list” is promulgated with all of the applicants listed in order of their overall scores. Hiring and promotion must be done in order of rank of their overall scores.

However, New Jersey’s Rule of Three allows the appointing authority to hire or promote from any one of the top three slots for the position, allowing it to skip a higher ranked candidate. This allows the hiring authority a limited degree of discretion in hiring. However, to avoid bias, discrimination, cronyism, nepotism and favoritism, the appointing authority must give a written statement of its “legitimate” reasons.

In the recent case of In re Foglio, New Jersey’s Supreme Court rejected Ocean City’s use of the Rule of Three when it was hiring firefighters. Nicholas R. Foglio, who had been a volunteer fighter, took the civil service test to become a paid firefighter and went through the application process. He was ranked second on the eligibility list. Ocean City hired three new firefighters. It chose the highest ranked firefighter, but skipped Foglio to hire the next two known ranked candidates. Foglio had been a volunteer firefighter for several departments. He had already logged more than a thousand hours. The highest ranked candidate was a student teacher; the third, for whom Foglio was skipped, was a bartender; and the fourth, for whom Foglio was also passed over, was a lifeguard. Ocean City stated that its reason for invoking the Rule of Three to pass over Foglio was that the two lower ranked candidates “best meet[] the needs of Department,” without any further elaboration. The Supreme Court explained that while the applicant still bore the burden of showing that the appointing authority’s reasons are not legitimate, but that burden is only triggered after the appointing authority gives an adequate – and real – statement of reasons for the action. when exercising his right to challenge the appointing authority’s exercise of the Rule of Three, he can’t reasonably be expected to do so without a detailed statement of reasons. The Court explained that while the statement of reasons not need be detailed, it had to give fair notice of the reasons. It could not just give a conclusory and unrevealing statement. As the Court explained, Ocean City could just have said “we liked them better” and it would essentially been the same thing without a statement giving notice of actual, legitimate reasons. The Court held that the appointment of the lower ranked candidate is “presumptively in violation of the principles of merit and fitness.” Thus, while the applicant bears the burden of showing that the appointing authority’s reasons are not legitimate, that burden is only triggered after the appointing authority gives an adequate – and real – statement of reasons for the action. The Court therefore remanded the case. It ordered Ocean City to provide a statement of reasons, which Foglio could then appeal. In re Foglio, 207 N.J. 38, 45-46 (2011).

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