IN THE MATTER OF ANDRE RUIZ, FIRE FIGHTER (M2271E), CITY OF CAMDEN

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2611-07T22611-07T2

IN THE MATTER OF ANDRE RUIZ, FIRE FIGHTER (M2271E), CITY OF CAMDEN

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Submitted: February 25, 2009 - Decided:

Before Judges C.L. Miniman and Baxter.

On appeal from the Merit System Board, Department of Personnel, Docket Nos. 2008-431 and 2008-1539.

F. Michael Daily, Jr., attorney for appellant Andre Ruiz.

Lewis Wilson, City Attorney, attorney for respondent City of Camden (Marc A. Riondino, Assistant City Attorney, on the brief).

Anne Milgram, Attorney General, attorney for respondent Merit System Board (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Andre Ruiz appeals from a Final Administrative Action of the Merit System Board (the Board) issued on October 11, 2007, concluding that the City of Camden (the City) properly bypassed Ruiz under the "Rule of Three," which allows an appointing authority to use discretion in making appointments by selecting one out of the three top candidates ranked on a list of eligible candidates. Ruiz also appeals from the Board's January 22, 2008, Final Administrative Action denying his petition for reconsideration. We now affirm.

On October 3, 2005, the Department of Personnel (DOP) issued Certification Number OL052133 to the City respecting open-competitive lists M2013A and M2271E containing the names of 150 eligible candidates for the position of Fire Fighter. Ruiz was on list M2271E. The City returned the certification in March 2006 proposing the removal of several names, including that of Ruiz, ranked thirty-sixth, on the ground that he failed to meet the City's residency requirements. On April 3, 2006, the City appointed thirty-five eligible candidates to the position of Fire Fighter while the propriety of the proposed removals was still pending before the DOP.

On January 18, 2007, the Board determined that the City had failed to establish that Ruiz and five other eligible candidates, including Ruiz's brother who resided at the same address as Ruiz, did not reside in the City. The record demonstrated that Ruiz had produced a driver's license and utility bills for his stated address and a neighbor confirmed that he resided at that address. The Board ordered the City to either produce sufficient documentation to support removal of the six eligible candidates based on nonresidency, appoint them, or produce adequate justification for bypassing them or removing them on other grounds within sixty days. Ruiz did not file an appeal from this Final Administrative Action with the Appellate Division pursuant to Rule 2:2-3(a)(2), although he had been served with a copy of it.

On March 14, 2007, the City responded to the Board's January 18, 2007, decision by submitting additional documentation to the DOP seeking to establish that Ruiz and the five other eligible candidates did not meet the City's residency requirements. It revised that response on March 20, 2007. It notified the DOP that on April 3, 2006, it had used the Rule of Three to appoint thirty-five eligible candidates to the position of Fire Fighter with an effective date of April 11, 2006. Despite stating that it employed the Rule of Three,
the City represented that no eligible candidates had been bypassed and appointments had been made through eligible candidate No. 74. The City sought entry of an order that it had properly disposed of open-competitive lists M2013A and M2271E.

On March 20, 2007, the DOP issued a disposition-deficiency notice to the City, notifying it that the reasons it had submitted for removal of Ruiz and two other eligible candidates, including Ruiz's brother, based upon nonresidency were not acceptable. It permitted the City to bypass two of the three eligible candidates provided the City submitted a short, written positive statement explaining why other lower or equally ranked eligible candidates were appointed. However, it required that the City appoint one of the three eligible candidates.

In the meantime, open-competitive list M2271E was scheduled to expire on June 20, 2007, and the DOP Director of Selection Services requested that the expiration date be extended until new employment lists could be issued based on a new examination. The Board found good cause to do so on March 29, 2007, and extended the expiration date for one year or until the next lists issued, whichever occurred first. Pursuant to that extension, on July 3, 2007, the City appointed Ruiz's brother, the highest ranked of the three remaining candidates, as a Fire Fighter.

On July 26, 2007, Ruiz filed a notice of appeal and petition for enforcement of the January 18, 2007, final agency action. He alleged that thirty-five eligible candidates had been appointed and that the City had failed to comply with the Board's requirements for either adequate documentation of nonresidency or justification for removal or bypass. He further alleged that the City had appointed thirty-five Fire Fighters but had failed to appoint him.

In response, on August 20, 2007, the City pointed out that the disposition-deficiency notice only required it to appoint one of the three eligible candidates and it complied with that notice by appointing Ruiz's brother. Ruiz then argued that he had suffered a grave injustice: while he was off the list, the City had appointed scores of eligible candidates, many of whom were lower on the list of eligible candidates. Now that the City had been compelled to include him among the eligible candidates, there was only one position open and the City would not be hiring Fire Fighters for four or five years.

On October 11, 2007, the Board issued its Final Administrative Action on Ruiz's notice of appeal and petition for enforcement. The Board concluded that N.J.S.A. 11A:4-8, N.J.S.A. 11A:5-6, and N.J.A.C. 4A:4-4.8(a)(3) allowed "an appointing authority to select any of the top three interested eligibles [sic] on an open-competitive list" and that N.J.A.C. 4A:2-1.4(c) and N.J.A.C. 4A:4-4.8(b)(4) placed the burden of proof on Ruiz to show by a preponderance of the evidence that the City's decision to bypass him was improper. The Board found that Ruiz had not even alleged "a specific improper reason underlying the appointing authority's bypass of his name" and found that the City had fully complied with the Board's January 18, 2007, decision. "Accordingly, the Board [found] that the current disposition of the certification, including the bypass of [Ruiz's] name, [was] in compliance with its prior decision and the 'Rule of Three.'"

The Board also rejected Ruiz's claim that "scores of Fire Fighters" had been hired during the pendency of the October 3, 2005, certification. It stated that "DOP records reflect that the City has not been issued another certification from the Fire Fighter (M2271E) list since that time." It found that Ruiz was not entitled to an appointment because he had been improperly removed from the eligible-candidate list, explaining that the Board had never permitted removal of his name from the list; rather, he was bypassed in accordance with the Rule of Three. "In other words, any error in the initial requested disposition was cured when the Board required the City to reconsider its disposition of the subject certification." It also noted that "the only interest which results from placement on an eligible list is that the candidate will be considered for an applicable position so long as the eligible list remains in force." It concluded that Ruiz "did not possess a vested property interest in the position," citing Nunan v. Department of Personnel, 244 N.J. Super. 494 (App. Div. 1990), certif. denied, 126 N.J. 335 (1991).

On October 24, 2007, Ruiz sought reconsideration of the Board's decision, arguing that the City's "improper action has effectively evaded review." He acknowledged that he had no vested interest in appointment due to the Rule of Three, but argued:

Due to the high number of openings that the City desired to fill and the limited number of eligible candidates, the City decided not to wait until it had sufficient candidates in order to exercise its prerogatives under the Rule of Three. Instead, it bypassed no one and appointed all of the eligible candidates and therefore under the circumstances pertaining in this instance [he] would have been appointed.

He further argued that he was denied the equal protection of the law where all of the candidates who were not improperly removed were appointed and he was not. "Stated slightly differently, [he] was subjected to the Rule of Three while all of the other candidates who were appointed were not."

The City responded that Ruiz had not satisfied N.J.A.C. 4A:2-1.6(b), which requires that a party seeking reconsideration show clear error or present new or additional information. It argued that it had properly bypassed Ruiz pursuant to the Rule of Three, that it had never improperly removed Ruiz's name from the list of eligible candidates as it had no such authority, and that Ruiz was not the only eligible candidate bypassed as the City also bypassed eligible candidate No. 57A on the eligible-candidate list.

On January 22, 2008, the Board issued its Final Administrative Action on Ruiz's request for reconsideration. It found that Ruiz had not met the standard for reconsideration under N.J.A.C. 4A:2-1.6(b). It construed his request as contending that "the Board committed a clear material error in its prior decision."

With respect to his contention that he would have been appointed had the City not sought to remove his name, the Board concluded that this was "mere speculation" since "he has not presented a scintilla of evidence to support that claim." It reasoned,

Indeed, it is evident that the City did not have enough Fire Fighter vacancies to accommodate every interested eligible on the certification, since the shortage of vacant positions necessitated the bypass of two eligibles. It must again be emphasized that [Ruiz] did not possess a vested property interest in the position.

It further reasoned that, had the DOP permitted the removal of Ruiz's name in the first instance and the Board ordered that his name be restored, "the City could have bypassed the appellant's name in accordance with the 'Rule of Three,' as it did here." As a result, the Board found the petition for reconsideration without merit. This appeal followed.

Ruiz contends on appeal that his "expectancy" that he would be considered for appointment, as recognized in Nunan, supra, 244 N.J. Super. at 497, "was virtually obliterated" compared to all the other eligible candidates because all open positions were filled "while his status was in limbo." He also contends, for the first time on appeal, that the Board had the authority under N.J.A.C. 4A:4-3.6 to require the City to vacate the thirty-five appointments it made on April 3, 2006. He argues that the Board ought to have done so to remedy the gross disparity he suffered because the City appointed less-qualified candidates without employing the Rule of Three to make the appointments on April 3, 2006.

No matter how appealing Ruiz's claims of inequitable treatment might be, the scope of our review of final agency action is limited. The judicial role in reviewing decisions of administrative agencies is restricted to the following four inquires:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]

Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (citing Barone v. Dep't of Human Servs., Div. of Med. Asst. & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987)). Ruiz has failed to meet that burden here.

We generally "decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted); see also State v. Churchdale Leasing, Inc., 115 N.J. 83, 100 (1989) ("When an issue is of sufficient public concern, we may consider it even if it is raised for the first time on appeal."); A. & B. Auto Stores of Jones St., Inc. v. City of Newark, 59 N.J. 5, 20 (1971) (considering issue not timely raised because of public interest); D'Ambrosio v. Dep't of Health & Senior Servs., 403 N.J. Super. 321, 334 (App. Div. 2008) (deciding issues raised for the first time on appeal "because they touch upon the public interest and could have widespread importance for EMTs, rescue squads, health care providers, and other persons and organizations in the field").

Ruiz did not assert that the Board should order the City to vacate the thirty-five appointments it made on April 3, 2006, either in his July 26, 2007, notice of appeal and petition for enforcement or in his October 24, 2007, request for reconsideration. Thus, the Board had no opportunity to consider this issue in the first instance. This issue is not jurisdictional nor does it "concern a matter of great public interest." Nieder, supra, 62 N.J. at 234. As a result, we decline to consider it here.

More fundamental, however, is that Ruiz did not file an appeal from the Board's January 18, 2007, Final Administrative Action in which the Board ordered the City to either provide adequate documentation of nonresidency, appoint the six eligible candidates proposed to be removed from the list, or provide adequate justification for bypassing or otherwise removing them. Ruiz was on notice from the time he received this final agency action in January 2007 that the Board was not necessarily requiring the City to appoint all of the eligible candidates it proposed to remove from the list and, further, that it had not required the City to vacate the thirty-five appointments it made on April 3, 2006, and reconsider all of the eligible candidates on the list. His time to appeal the January 18, 2007, Final Administrative Action expired long before his July 26, 2007, notice of administrative appeal and petition for enforcement of that action. See R. 2:4-1(b) (appeal from final agency action to be taken within forty-five days from service of decision). As a consequence, the Board's January 18, 2007, decision to permit the City to bypass the six eligible candidates it sought to have removed from the eligible-candidate list is no longer appealable. See State, Dep't of Law & Pub. Safety v. Contemporary Cmtys., 337 N.J. Super. 177, 180-81 (App. Div. 2001) (dismissing administrative appeal for failure to file same within forty-five days of final decision). Furthermore, his request for reconsideration did not revive the appealability of the January 18, 2007, Final Administrative Action as it was made after the time to appeal had run. In re Hill, 241 N.J. Super. 367, 371 (App. Div. 1990).

We now turn to Ruiz's first point on appeal his claim that his "expectancy" of consideration for appointment "was virtually obliterated" because all open positions were filled "while his status was in limbo." Our disposition of his second point on appeal clearly controls this issue. Any such "expectancy" was subject to the Board's final agency action on January 18, 2007, when it required the City to either (1) appoint the eligible candidates it had proposed to remove from the list in addition to those it had appointed on April 3, 2006; (2) provide adequate documentation of nonresidency; or (3) provide adequate justification for bypassing or otherwise removing them. Thus, Ruiz's "expectancy" as of January 18, 2007, could have been no more than an expectancy that he would be considered for appointment among the group of candidates whom the City proposed to remove, so long as he met the City's residency requirements, the City had no other adequate justification for removing his name from the list, and it had available positions. Any expectation that he had of a mandatory appointment was defeated by the possibility of being bypassed that the Board specifically permitted on January 18, 2007, a final agency action from which he did not appeal. Further, as the Board observed, there is no evidence that Ruiz was not considered by the City when it selected the most qualified of the three remaining eligible candidates.

Even if the issues raised by Ruiz were properly before us, he has not demonstrated that the findings of the Board were not supported by substantial, credible evidence in the record, considering the proofs as a whole. Close, supra, 44 N.J. at 599.

Affirmed.

See generally In re Martinez, 403 N.J. Super. 58, 72 (App. Div. 2008) (explaining the Rule of Three permits the appointing authority to select one eligible candidate from the top three candidates without requiring selection of the top candidate and noting that the rule is governed by N.J.S.A. 11A:4-8 and N.J.A.C. 4A:4-4.8).

The combined list actually has two rankings, the "CERT POS" and the "RANK" where the numbers for each eligible candidate differ. Throughout this opinion, we refer to the "RANK" number.

Ruiz did not submit any evidence to the Board establishing that this representation by the City was incorrect.

Ruiz's brother was ranked as No. 18 on the open-competitive lists, whereas Ruiz was ranked as No. 36.

Ruiz does not cite any Supreme Court, Appellate Division, DOP, or Board decision supporting this proposition.

Fifteen of the thirty-five positions were filled with eligible candidates who were ranked lower on the list than Ruiz.

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A-2611-07T2

June 18, 2009