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.

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Photo of Donald C. Barbati Donald C. Barbati

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.