Candidate Properly Bypassed Under Rule of Three
On June 18, 2009, the Appellate Division decided In the Matter of Andre Ruiz, Firefighter (M2271E), City of Camden, Docket No.: A-2611-07T2. In the case, Andrte Ruiz appealed the Final Administrative Action of the Merit System Board (“Board”) issued on October 11, 2007, concluding that the City of Camden (“City”) properly bypassed Ruiz under the “Rule of Three.” Ruiz also appeals from the Board’s January 22, 2008 Final Administrative Action denying his petition for reconsideration.
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 firefighter. 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 firefighter 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. As such, the Board ordered the City to either produce sufficient documentation to support removal of the six eligible candidates based on non-residency, appoint them, or produce adequate justification for bypassing them or removing them on other grounds within sixty (60) days.
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. Thereafter, on April 3, 2006, the City notified the DOP that it had used the Rule of Three to appoint thirty-five eligible candidates to the position of firefighter. Despite stating 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 non-residency 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 extended the expiration date and, pursuant to that extension, the City appointed Ruiz’s brother, the highest ranked of the three remaining candidates as a firefighter.
Subsequently, 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 firefighters, but had failed to appoint him.
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.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. Thereafter, Ruiz filed a petition for reconsideration, which the Board ultimately found to be without merit. This appeal ensued.
The Appellate Division affirmed the Board’s decision in determining that Ruiz failed to meet his burden of demonstrating that the Board’s actions were arbitrary, capricious, or unreasonable. First, the Court found that all of the issues raised by Ruiz on appeal were not properly before the Court. Specifically, Ruiz’s time to appeal the January 18, 2007 Final Administrative Action expired ling before his July 26, 2007 notice of appeal and petition for enforcement. Second, the Court explained that any expectation that Ruiz had of 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 Ruiz 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.
