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November 24, 2014


Argued December 4, 2013 Decided

Before Judges Fuentes, Simonelli, and Haas.

On appeal from New Jersey Civil Service


Ira W. Mintz argued the cause for appellant

(Weissman & Mintz, LLC, attorneys; Mr. Mintz,

on the brief).

Lisa D. Ruch, Deputy Attorney General, argued

the cause for respondent (John J. Hoffman,

Acting Attorney General, attorney; Melissa H.

Raksa, Assistant Attorney General, of counsel;

Pamela N. Ullman, Deputy Attorney General,

on the brief).

The opinion of the court was delivered by


The New Jersey Constitution requires that Civil Service appointments "shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive . . . ." N.J. Const. art. VII, 1, 2. The Legislature responded to this constitutional mandate by codifying a competitive testing system to fill vacancies in public positions. From this competitive test evolved the "Rule of Three," which "permits an appointing authority1 to select one of the three highest scoring candidates from an open competitive examination." Local 518, N.J. State Motor Vehicle Emps. Union v. Div. of Motor Vehicles, 262 N.J. Super. 598, 603 (App. Div. 1993) (footnote added).

As codified by the Legislature, the Rule of Three states

The commission shall certify the three eligibles who have received the highest ranking on an open competitive or promotional list against the first provisional or vacancy. For each additional provisional or vacancy against whom a certification is issued at that time, the commission shall certify the next ranked eligible. If more than one eligible has the same score, the tie shall not be broken and they shall have the same rank. If three or more eligibles can be certified as the result of the ranking without resorting to all three highest scores, only those eligibles shall be so certified.

A certification that contains the names of at least three interested eligibles shall be complete and a regular appointment shall be made from among those eligibles. An eligible on an incomplete list shall be entitled to a provisional appointment if a permanent appointment is not made.

Eligibles on any type of reemployment list shall be certified and appointed in the order of their ranking and the certification shall not be considered incomplete.

[N.J.S.A. 11A:4-8.]

Our Supreme Court has emphasized, however, that the Rule of Three is designed and intended to limit, not eliminate, the appointing authority's hiring discretion. Commc'ns Workers of Am. v. N.J. Dep't of Pers., 154 N.J. 121, 129 (1998). For example, the appointing authority may bypass the Rule of Three to appoint disabled veterans and veterans "in their order of ranking from an open competitive list." N.J.A.C. 4A:4-4.8(a)(3)(i).

The question raised in this appeal by the Communications Workers of America (CWA) concerns the right of the Civil Service Commission (CSC) to repeal N.J.A.C. 4A:4-4.8(b)(4), a regulation that required the appointing authority to provide a "statement of the reasons why the appointee was selected instead of a higher ranked eligible [candidate]." The CWA argues that the CSC's decision to repeal N.J.A.C. 4A:4-4.8(b)(4) "flouts" the Supreme Court's decision in In re Foglio, 207 N.J. 38 (2011) by dropping "a veil of secrecy over the appointment and promotion process" and undermines the enforcement of the State's public policy "to select and advance employees on the basis of their relative knowledge, skills and abilities." N.J.S.A. 11A:1-2(a).

The CSC maintains that following the Court's decision in Foglio, supra, it decided to revisit whether it should continue the statement of reasons required by N.J.A.C. 4A:4-4.8(b)(4), since, according to the CSC, this requirement had been eliminated by the Legislature twenty-five years earlier when it adopted N.J.S.A. 11A:4-.8. After studying the matter, the CSC "found that this requirement has done little to advance its original purpose." The CSC elaborated on this point in its Summary of the Rule Proposal

The Commission believes that requiring a more detailed statement of reasons than that ordinarily provided would not further ensure that civil service appointments are made in accordance with merit and fitness. Rather, such requirement is likely to lead to more litigation.

Accordingly, the Commission proposes to delete existing N.J.A.C. 4A:4-4.8(b)(4). Despite the proposed amendment, it is noted that the appointing authority would still be required to use merit-based criteria in exercising its discretion under the rule of three. If a bypass is challenged on appeal, the appointing authority would remain obligated to demonstrate merit-based criteria for the bypass during the appeal process.

[ 44 N.J.R. 137(a) (Jan. 17, 2012) (emphasis added).]

We agree with the central position espoused by the CSC. The repeal of N.J.A.C. 4A:4-4.8(b)(4) does not, in any material way, absolve an appointing authority from providing a statement of reasons when it exercises its discretion to appoint a candidate in a manner inconsistent with the Rule of Three. As the Court emphasized in Foglio, supra, under Commc'ns Workers of Am., supra, 154 N.J. 121, an appointing authority that chooses to bypass a higher-ranked candidate remains bound to provide a statement of the reasons why the appointee was selected instead of a higher ranked eligible. 207 N.J. at 46. An appointing authority's failure to provide this statement of reasons would render the appointment violative of the constitutional principles underpinning the requirement that appointments be based on "merit and fitness." N.J. Const. art. VII, 1, 2.

Returning to the issue before us, we are bound "to give considerable weight to a state agency's interpretation of a statutory scheme that the legislature has entrusted to the agency to administer." In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010). We must also defer "to the agency's actions where the agency has interpreted the statutory scheme for which it is responsible." In re Tavani, 264 N.J. Super. 154, 158 (App. Div. 1993). In this light, we discern no legal basis to conclude the CSC's action in repealing N.J.A.C. 4A:4-4.8(b)(4) is inconsistent with any constitutional or statutory obligation.


1 N.J.A.C. 4A:1-1.3