Articles Posted in Civil Service Law

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A recent appellate decision in the case In the Matter of Christopher D’Amico, City of Plainfield Fire Department demonstrated once again that New Jersey civil service employees have an effect means of redress for when they are wrongfully disciplined.

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The D’Amico Case

Christopher D’Amico passed the New Jersey Civil Service test and was hired to be a firefighter by the City of Plainfield, a civil service jurisdiction.  As part of his application, D’Amico was required to prove their residency.  D’Amico submitted several documents, including an insurance card.  He admitted that he modified the card to list his actual residence in Plainfield.  Plainfield’s hiring committee recommended against hiring D’Amico because of the alteration, but the Fire Chief hired him anyway.  D’Amico attended the fire academy.  A citizen questioned several cadets’ residencies.  The concern about D’Amico was determined to be unfounded, but the City reexamined his application.  Even though the address was accurate and the change was known by the City when it hired him – and was admitted by D’Amico – the Director of Public Safety ordered the Chief to terminate D’Amico’s employment.  When D’Amico and two other cadets reported to the Department for their first day of work they were fired, in D’Amico’s case not because of his residence, but because of the alteration.

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Employment Law Evidence Issues

Our employment lawyers represent employees and employers in all aspects of New Jersey employment law.  One of the most litigated issues is the evidence which an employee must present to demonstrate that retaliation or discrimination was behind an adverse action, such as supreme-administrative-court-3565618_960_720-300x200firing or demotion.  The Appellate Division recently issued an important decision on the ability of jurors to infer retaliation from circumstantial evidence.

The Yatauro Case

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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 coppromotion 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.

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New Jersey employment law provides that government employees may be fired for conviction of a crime, and for many crimes they must be fired.  However, if they are exonerated they may be reinstated to their position.  They may be subject to further discipline, but if they are not they may also receive back pay, police-hoboken-train-stationseniority and benefits for the period of their suspension.

Suspension During Criminal Charges

New Jersey Civil Service Commission regulations provide that an employee’s conviction of a crime is grounds for discipline.  An employee suspended while a criminal complaint or indictment is pending must be served with a Preliminary Notice of Disciplinary Action (known as a “PNDA”). The PNDA should include a statement that forfeiture of the employee’s position may result, and that the employee may choose to consult with an attorney.  In this case representation by an attorney is always advisable.  Within five days of receipt of the PNDA, the employee may request a departmental hearing. If no request is made (within five days or an agreed upon extension) the employer may issue a Final Notice of Disciplinary Action (an “FNDA”).

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In the tough economic times brought on by COVID-19, many governors and veterans-300x200mayors, including New Jersey’s Governor Murphy, have said that widespread layoffs may be necessary if federal assistance is not forthcoming.  Our attorneys represent New Jersey Civil Service employees, and we see the struggles they are facing.  Given this, we thought the time was right to review the layoff rights available under New Jersey Civil Service law.

 
Layoffs

A layoff is the termination of a permanent employee’s employment because of economic reasons.  Demotions or reduction of hours for economic reasons are also treated as layoffs, triggering the rights and procedures applicable to layoffs.

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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-2-300x200employees 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. 

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Qualified candidates for permanent, career, classified New Jersey Civil Service veterans-300x200employment who meet the Civil Service definition are eligible to receive a veterans and disabled veterans preference, which increases their ranks on eligible lists.  The courts have explained that the purpose of the preference is to “reward those whose military commitments, commissioned or enlisted, were of such a nature and duration as to interfere substantially with an individual’s civilian status.”

Veterans Eligible for Preference

Not all “veterans”, as the term is generally used, are eligible for a New Jersey Civil Service preference.  Only “veterans” and “disabled veterans” of certain military operations as defined by the New Jersey Civil Service Act are eligible.   Thus, veterans of some military operations, such as, for example, Operations Earnest Will, Nimble Archer and Praying Mantis, in the Persian Gulf Region in 1987 and 1988, are excluded.

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Hello.

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

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Collectively, New Jersey state and local governments are the largest employer in the State.  Most of these jurisdictions are governed by the New Jersey Civil Service Act.  In New Jersey Civil Service jurisdictions, hiring, firing, promotion and discipline is governed by the Civil Service Act and Regulations.  This makes the Civil Service System one of the most important elements in New Jersey employment law.

The Use of Eligible Lists in Hiring and Promotion

Candidates for initial hiring and promotion in the permanent, career, unclassified civil service are selected and appointed based on their civil-service-jobs-300x200placement on eligible lists (also referred to as “certifications”).  There are five types of eligible lists: Open competitive lists, promotional lists, regular reemployment lists, police and fire reemployment lists, and special reemployment lists.

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The key to New Jersey Civil Service hiring and promotion is the examination.  The State Constitution and New Jersey Civil Service Act require merit-based appointments based, whenever possible, on examinations.

Announcements.  The New Jersey Civil Service Commission is responsible for administrating examinations which fairly test applicants’ mulitple-choice-exam-300x200knowledge, skills and abilities for the job.  Announcements are posted on the Commission’s website, and provided by the employer. Announcements include title, salary information, admission qualifications, filing information, and duties and responsibilities. No unannounced requirements can be considered.  Applications must be filed by the announced date.  The applicant must be a resident of New Jersey and the specified local jurisdiction, unless a different residency requirement is specified or there are not enough available qualified residents.  Applicants for municipal law enforcement or firefighter positions must be under 35 for open competitive examinations, except that applicants under 45 may subtract prior law enforcement experience to meet the 35 year age requirement.  Veterans may subtract their service from their age to determine eligibility.

Types of Examinations.  Examinations may be written; oral; performance evaluation; physical performance tests; assessment exercises; and evaluation of education, training and experience.  The goal is to objectively measure an applicant’s fitness and merit.  Thus, while subjectivity in developing an examination is not forbidden, it must be limited.

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