As reported by nj.com, municipalities hiring from a civil service list have to give a “legitimate” reason for skipping over a candidate in favor of one who placed lower in test ranking, the state Supreme Court ruled yesterday.

The 4-2 decision reverses a practice that labor experts said had given too much power to hiring authorities who in the past gave vague reasons for bypassing qualified candidates in favor of family members or those with political connections.

The court ruled in the case of Nicholas Foglio, who was skipped over for a firefighter’s position in Ocean City in 2007. In hiring three firefighters that year, the city picked a bartender and a lifeguard over Foglio, an eight-year volunteer fireman and emergency medical technician in several communities, despite his higher ranking on the civil service test.

The city initially cited the other candidates’ better educational background, but Foglio had the relevant firefighter educational experience. The city then said the other candidates performed better in their interviews, but city officials could not produce any notes or a list of standard questions they asked all the candidates. Finally, the city said the other candidates “best met the needs” of the fire department. The Civil Service Commission upheld the city’s finding, saying it was Foglio’s obligation to prove the city had improper motives, such as age or gender discrimination, in selecting others. An appeals court agreed.

However, the Supreme Court said a “boilerplate” reason is insufficient and the city was obligated to provide to the state Department of Personnel a statement of “legitimate” reasons why Foglio was not selected. “In the absence of such reasons, the appointment is presumably in violation of the principles of merit and fitness and it is the city that bears the burden of justifying its actions,” Justice Virginia Long wrote for the majority.

Dissenting Justices Jaynee LaVecchia and Helen Hoens said the ruling creates a “new rigidity” in hiring practices where the appointing authorities ought to have some discretion to appoint from the top three candidates.

Ocean City’s solicitor, Dorothy McCrosson, declined to comment on the case. She said many of those officials involved in the selection process in 2007 no longer work for the city. The city now has to decide whether to give Foglio a legitimate reason for why he was skipped or it has to give him a job on the fire department.

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DONALD C. BARBATI, JR.

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues…

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues litigated before the courts and administrative tribunals throughout the State of New Jersey. In addition, Mr. Barbati also routinely represents individuals in various types of public pension appeals, real estate transactions, and general litigation matters. He is a frequent contributor to the New Jersey Public Safety Officers Law Blog, a free legal publication designed to keep New Jersey public safety officers up-to-date and informed about legal issues pertinent to their profession. During his years of practice, Mr. Barbati has established a reputation for achieving favorable results for his clients in a cost-efficient manner.

Mr. Barbati has also handled numerous novel legal issues while representing New Jersey Public Safety Officers. Most notably, he served as lead counsel for the Appellants in the published case In re Rodriguez, 423 N.J. Super. 440 (App. Div. 2011). In that case, Mr. Barbati successfully argued on behalf of the Appellants, thereby overturning the Attorney General’s denial of counsel to two prison guards in a civil rights suit arising from an inmate assault.  In the process, the Court clarified the standard to be utilized by the Attorney General in assessing whether a public employee is entitled to legal representation and mandated that reliance must be placed on up-to-date information.

Prior to becoming a practicing attorney, Mr. Barbati served as a judicial law clerk to the Honorable Linda R. Feinberg, Assignment Judge of the Superior Court of New Jersey, Mercer Vicinage. During his clerkship Mr. Barbati handled numerous complex and novel substantive and procedural issues arising from complaints in lieu of prerogative writs, orders to show cause, and motion practice. These include appeals from decisions by planning and zoning boards and local government bodies, bidding challenges under the Local Public Contract Law, Open Public Records Act requests, the taking of private property under the eminent domain statute, and election law disputes. In addition, Mr. Barbati, as a certified mediator, mediated many small claims disputes in the Special Civil Part.

Mr. Barbati received a Bachelor of Arts degree in history, magna cum laude, from Rider University in Lawrenceville, New Jersey. Upon graduating, Mr. Barbati attended Widener University School of Law in Wilmington, Delaware. In 2007, he received his juris doctorate, magna cum laude, graduating in the top five percent of his class. During law school, Mr. Barbati interned for the Honorable Joseph E. Irenas, Senior United States District Court Judge for the District of New Jersey in Camden, New Jersey, assisting on various constitutional, employment, and Third Circuit Court of Appeals litigation, including numerous civil rights, social security, and immigration cases.