dissenting.
I respectfully dissent because I believe the majority has introduced a new rigidity to the operation of the “Rule of Three,” see N.J.S.A. llA:4-8, undermining its role in affording appointing authorities discretion to appoint from among the top three persons certified as eligible for appointment to a civil service position. Indeed, the majority and I have different views as to the nature of the Rule of Three and the manner in which it is to be implemented. Whereas I see the Rule of Three as a legislative mechanism that fundamentally enables a practicable scheme of merit-based appointments, the majority views the discretion inhering to the Rule as an intrusion on merit and fitness principles that requires particularized justification in each case.
The majority assumes that an appointing authority must have some justifiably valid reason for not choosing the highest or higher ranked of the top three certified individuals in the precise order of their ranking, and further believes that an unsuccessful, passed-over candidate has the right to demand an explanation in every instance. Both positions represent a change in emphasis in the law that is neither in keeping with case law addressing the Rule of Three’s operation, nor consistent with our normal deference to the administrative agency charged with the general administration of the civil service appointment process and specifically responsible for supervision of appointment determinations. See, e.g., In re Election Law Enforcement Comm’n Advisory Op. No. 01-2008, 201 N.J. 254, 262, 989 A.2d 1254 (2010) (explaining that *51“court[s] should 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 Tavani, 264 N.J.Super. 154, 158, 624 A.2d 75 (App.Div.1993) (noting that courts give “special deference to the agency’s actions where the agency has interpreted the statutory scheme for which it is responsible”).
More to the point, since this matter involves this Court’s gloss on a statute and its requirements, the majority’s outcome is at odds with the language and legislative history of the 1986 reform legislation that created the present Civil Service Act, the source of the present formulation of the statutory Rule of Three. The implementation now required by the Court is not that expressed by the Legislature when the current iteration of the Rule of Three was retained for use in the civil service appointment process.
The Rule of Three objectively winnows the field of candidates to those individuals demonstrating, through competitive examination, the highest levels of merit and fitness — the top three — and allows an appointing authority the means to exercise discretion to choose any of those three. An appointing authority that follows the Rule acts in a manner that is presumptively valid, and not presumptively arbitrary or capricious. Cf. Bergen Pines Cnty. Hosp. v. N.J. Dep’t of Human Servs., 96 N.J. 456, 477, 476 A.2d 784 (1984) (defining arbitrary and capricious actions as those that are “unreasonable or irrational”). Within the limited and channeled discretion afforded to it, an appointing authority may choose any of the three eligible candidates that have scored highest on the competitive examination so long as it does not select a candidate on the basis of an unlawful motive.
A bypassed candidate can challenge his non-selection if he can make some showing that the appointing authority was motivated by impermissible criteria.1 Contrary to the majority, however, I *52fail to apprehend why a simplistic statement of reasons — indicating a preference for the selected candidate without disparaging another unselected candidate — in a disposition report, a document used by the Department of Personnel (DOP) for internal purposes, changes this analysis.
I.
There is no question in this state about the importance of a system of public service employment based on merit and fitness. New Jersey has elevated that schema to a principle of constitutional significance. Our Constitution mandates that “[a]ppointments and promotions in the civil service ... 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, 112. The Civil Service Act and the regulations promulgated pursuant to it implement that constitutional command by setting out the procedure by which a competitive examination leads to the certification of a list of eligible candidates to an appointing body. See N.J.S.A llA:4-5, -8; N.J.AC. 4A:4-2.1, -3.2, -3.3(b), -4.2(a), -4.2(c)(2). Importantly, the Civil Service Act makes allowance for the important role of employer choice when selecting a workforce, as the constitutional command requires competitive examination only “as far as practicable.” 2 Central to this process is the Rule of Three.
The Rule of Three promotes compliance with the constitutional requirement by limiting the scope of an appointing authority’s *53consideration to the three top-scoring eligible candidates. See N.J.S.A 11A:4 — 8; N.J.AC. 4A:4-4.8(a)(3); see also In re Martinez, 403 N.J.Super. 58, 72, 956 A.2d 386 (App.Div.2008) (explaining that “appointing authority must select from one of the top three candidates ranked on the list”). In this manner, the Rule substantially limits the appointing authority’s discretion, but does not eliminate all discretion. Terry v. Mercer Cnty. Bd. of Chosen Freeholders, 86 N.J. 141, 149, 430 A.2d 194 (1981). The Rule of Three provides a vigorous check against arbitrary appointments by ensuring that only the most meritorious candidates, as determined by competitive examination, can be selected. However, it does not require appointment in the order of the ranking on an appointment list, unlike lists created for reemployment.3 See N.J.S.A. llA:4-8 (requiring that eligible candidates on reemployment lists “shall be certified and appointed in the order of their ranking,” and imposing no similar requirement for regular appointment where Rule of Three operates (emphasis added)). Legislative history highlights that difference between the two types of lists:
On the basis of examination results, lists of persons eligible for appointment to public service positions shall be prepared. The three eligibles receiving the highest rank on an open competitive or promotional list would be certified by the commissioner for regular appointment. Eligibles on any type of reemployment list shall be certified and appointed in the order of their ranking. The current provisions of law regarding preference to veterans in the establishment of eligible lists is retained.
[Senate State Govt. & Fed. & Interstate Relations & Veterans Affairs Comm., Statement to S., No. 1567 (Aug. 26, 1986) (emphasis added).]
The legislative history cited above is important because although the Rule of Three has existed in some form for more than eighty years, see Local 518, N.J. State Motor Vehicle Emps. Union v. Div. of Motor Vehicles, 262 N.J.Super. 598, 603, 621 A.2d *54549 (App.Div.1993), its present codification is far more recent. See Civil Service Act of 1986, N.J.S.A. 11A:1-1 to 12-6. In 1986, the Legislature passed the Civil Service Act, which repealed the existing civil service laws and replaced them with a new comprehensive scheme. L. 1986, c. 112; see Local 518, supra, 262 N.J.Super. at 603, 621 A.2d 549 (discussing new law).
In Local 518 the Appellate Division considered the import of the new legal framework, including the new iteration of the Rule of Three and, specifically, the regulation stipulating that a statement of reasons be created when an appointing authority bypasses a higher-ranked candidate. Id. at 602-06, 621 A.2d 549. The court first surveyed the prior state of the law, and explained that the repealed Title had “required an appointing authority to maintain in its personnel record a statement of reasons whenever it appointed or promoted an individual having a lower score than another eligible candidate.” Id. at 603, 621 A.2d 549 (citing L. 1974, c. 160, § 3). A statutory provision further “permitted any person denied an appointment to submit facts for review by the Civil Service Commission.” Ibid, (citing L. 1974, c. 160, § 3). The implementing regulations promulgated under that prior law required not only the creation of a statement of reasons but also that the appointing authority “notify all interested eligible [candidates] of the certification results.” Ibid, (quoting since repealed N.J.AC. 4:1-12.18).
Turning to the new law, the court observed that those requirements had been repealed. A statement of reasons was no longer mandated by statute. And although a regulation created by the Merit System Board — the agency charged with implementing the new law — detailed that such a statement still had to be included in a report to the DOP, see N.J.AC. 4A:4-4.8(b), the regulation did not contain the requirement that bypassed candidates be notified of the appointment results. Local 518, supra, 262 N.J.Super. at 603, 621 A.2d 549. The court explained that the decision to eliminate the notice requirement could not have been accidental in light of the existence of another notice stipulated by the new *55regulations in the event an appointing authority removed a candidate from an eligible list. Ibid.; see N.J.A.C. 4A:4-4.7(b)(l) (“Upon request of the eligible ... the appointing authority shall provide the eligible with copies of all materials sent to the Department.”).
In light of the new notice provisions, the Appellate Division appropriately concluded that the purpose of the statement of reasons required by N.J.A.C. 4A:4-4.8(b) was for “the appointing authority to advise the DOP of its reasons for not selecting a higher ranking eligible candidate.” Local 518, supra, 262 N.J.Super. at 605, 621 A.2d 549. The court found that a bypassed candidate had no right to be provided with the statement of reasons, much less a right to challenge the sufficiency of that statement. See id. at 605-06, 621 A.2d 549. The court also appropriately recognized the need to defer to the agency’s choice of how to implement its statutory mandate, and deferred to the agency’s interpretation of its own regulation. Id. at 606, 621 A.2d 549.
I fully concur with the conclusions of the Appellate Division in Local 518, for they mirror my views in this case eighteen years later. Applying the well-reasoned principles articulated in that case to the one at bar leads to the conclusion that petitioner Foglio has not advanced any legitimate basis to challenge the statement of reasons or to claim that the appointing authority failed to provide an adequate rationale to the DOP for the selection made by the appointing authority in this matter.4 The statement of reasons is simply one portion of a disposition report that was created, not for Foglio’s benefit, but for the benefit of the DOP, the agency charged with superintendence of the appointment process. See N.J.A.C. 4A:4-4.8(b) (stating that “appointing au*56thority shall notify the Department of Personnel of the disposition of the certification” and listing six criteria — fourth being statement of reasons — that disposition report must include). The disposition report is a communication between the appointing authority and the agency, and serves to notify the agency of relevant appointment details; the statement of reasons included therein is not intended to provide notification to a bypassed applicant nor to serve as the appointing authority’s official position when an eligible candidate challenges his bypass. Should the DOP feel that the appointing authority’s statement was insufficiently explanatory, it may demand a more meaningful statement. Foglio, however, has no standing to force the DOP’s hand.
II.
A.
I turn now to the recourse available to a bypassed candidate. Generally speaking, an appointing authority has discretion under the Rule of Three to appoint any of the top three certified candidates. See N.J.SA llA:4-8; Terry, supra, 86 N.J. at 148-50, 430 A.2d 194 (detailing purpose and application of Rule of Three). A bypassed candidate cannot successfully challenge that exercise of discretion unless he is able to demonstrate that an improper motive played a role in his non-selection. When he does not even allege an improper motive, as here, he simply has no basis for a challenge.
In challenging the appointment of a lower-ranked eligible, a bypassed candidate bears the burden of proving that the appointing authority was motivated by an illegitimate, unlawful motive. N.J.AC. 4A:2-1.4(c) (stipulating that for all non-disciplinary appeals, “the burden of proof shall be on the appellant”); see also In re Crowley, 193 N.J.Super. 197, 214, 473 A.2d 90 (App.Div.1984) (appointing authority can bypass higher-ranked candidate for any “legitimate reason”). Appellants have managed to overturn appointment decisions when they have proven such unlawful motives *57as anti-union animus, Crowley, supra, 193 N.J.Super. at 211-13, 473 A.2d 90, or gender discrimination, Terry, supra, 86 N.J. at 143, 430 A.2d 194. 5
An appellant who asserts that he was bypassed for unlawful reasons might point to a bare-bones statement of reasons in support of his contention that a proffered legitimate reason is pretextual. However, in the twenty-five years since the passage of the Civil Service Act, no court has found a civil service appointment to be arbitrary on the basis of a meager statement of reasons.
The Civil Service Commission and the Appellate Division correctly understood the inquiry. The Civil Service Commission noted that Foglio did not assert that his bypass was motivated by discrimination or politics, and found no evidence in the record of any unlawful motive. Without any claim that the appointing authority’s decision-making process was tainted by an improper motive, the Civil Service Commission appropriately held that the appointing body was free to exercise its discretion under the Rule of Three. The Appellate Division framed the analysis in similar terms: “the candidate must submit facts in support of his request for review and bears the burden of proof that the selection of lower ranked candidates was the product of improper motives.” Finding the record devoid of any evidence of unlawful motive, the panel saw no need to conduct a more probing inquiry. I too believe that no more is required.
*58Foglio’s petition concedes that he has no evidence of unlawful motive. Thus, he has presented no reason to overturn the appointment decision. The holding of the Appellate Division should be affirmed.6
B.
Of particular concern to me is the majority’s assertion that an appointing authority’s action is “presumably” in violation of merit and fitness principles when it utilizes the Rule of Three to choose a lower-ranked candidate over a higher-ranked candidate, for example when the second-ranked eligible candidate is chosen instead of the first-ranked, unless a meaningful statement of legitimate reasons is provided to justify the bypass. See ante at 49-50, 22 A.3d at 964-65. I must disagree. I view the majority’s assertion as imposing an unwarranted intrusion on the discretion that the Legislature conferred on appointing authorities through the Civil Service Act of 1986. There is no support in the language of the statute nor in its legislative history for what is, in effect, a shifting of the burden to show arbitrary action; in fact, the historical evidence leads to the opposite result. I believe that the Rule of Three gives an appointing authority’s action a presumption of validity, and I would continue to require that an appellant bear the initial burden of alleging and producing evidence of arbitrary action regardless of the thin content of the statement of reasons in the disposition report.
The Rule of Three does not need reinterpretation. The Civil Service Commission has been astutely administering the Rule so that it provides the structural constraint intended by the Legisla*59ture when it recodified the Rule in 1986. I would hold that appointments made pursuant to the Rule are presumptively valid and in accord with merit principles. Neither the Civil Service Act nor its legislative history evidences any intent of the Legislature to further cabin the discretion of an appointing authority. See N.J.S.A llA:4-8 (“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.” (emphasis added)); Statement to S., No. 1567, supra, (explaining simply that for regular appointments, “[t]he three eligibles receiving the highest rank on an open competitive or promotional list would be certified by the commissioner for regular appointment”). Absent some demonstration of an unlawful motive, I believe the appointing authority has discretion to choose from among the top three candidates on the basis of the objective or subjective criteria it deems important when evaluating them. Simply put, the agency may exercise its right to prefer one candidate over another.
Furthermore, for the reasons explained supra, the statement of reasons required in a disposition report is for the DOP’s internal use and can neither vest a candidate with additional rights nor create an alternative manner by which to challenge an appointment decision. In ruling that a bypassed candidate can challenge a statement of reasons essentially on the basis of blandness, the majority disregards a crucial precept inherent in the appointment process: no right accrues to a candidate whose name appears on an eligible list under the Rule of Three other than to be considered for appointment. See Crowley, supra, 193 N.J.Super, at 210, 473 A.2d 90 (noting that candidate “placed on an eligible list does not thereby gain a vested right to appointment” and that “[t]he only benefit inuring to such a person is that so long as that list remains in force, no appointment can be made except from that list”); Nunan v. N.J. Dep’t of Pers., 244 N.J.Super. 494, 497, 582 A.2d 1266 (App.Div.1990) (“[T]he best that can be said” of candidate on eligible list is that he has “a right to be considered for appointment.”), certif. denied, 126 N.J. 335, 598 A.2d 892 (1991). *60That principle has not been abrogated by the regulatory requirement that a disposition report contain a statement of reasons.
In sum, I would hold that a bypassed candidate has no right to any particular level of detail in the statement of reasons submitted to the DOP and, further, that N.J.AC. 4A:4-4.8(b) does not vest a bypassed candidate with any additional causes of action or avenues for challenge. Examination of the legal landscape before and after the Civil Service Act of 1986 reveals that the statement of reasons is merely one of several pieces of information provided to the DOP for its use and record-keeping when reviewing an appointing authority’s exercise of discretion under the Rule of Three. The statement is not intended to notify a bypassed candidate of appointment results nor convey any information to that candidate, and it should not vest a bypassed candidate with substantive rights or an additional avenue for challenging his bypass.
III.
For the foregoing reasons, I respectfully dissent. I would affirm the decision of the Appellate Division.
For reversal and remandment — Chief Justice RABNER and Justices LONG, ALBIN and RIVERA-SOTO — 4.
For affirmance — Justices LaVECCHIA and HOENS — 2.
A bypassed candidate might also bring a successful challenge if he can show that the appointing authority did not properly follow the Rule of Three or other *52appointment procedures. This matter does not involve a claim of procedural failing.
Indeed, to assume that the constitutional mandate can be met only through strict adherence to competitive examination is to cast doubt on the legislative choices to have an unclassified workforce and to allow other forms of appointments accomplished through a variety of non-examination-based processes. See N.J.S.A. llA:3-4 (identifying unclassified service); see also N.J.S.A. llA:3-3 (creating senior executive service); N.J.S.A. 1 lA:3-5 (identifying political subdivision unclassified service).
The legislative choice to distinguish between initial appointments and reap-pointments rationally promotes the policy that an employer should have greater leeway when choosing among inexperienced individuals who have not proven to be successful at the job they seek. In contrast, employees up for reappointment are proven commodities.
Foglio's petition does not appear to dispute that the statement of reasons provided to the DOP in the instant matter meets the purposes for which it is required. He concedes that the statement of reasons provided in the disposition report was "sufficient for the purposes of certifying the disposition of the list, and technically meets the requirement of N.J.A.C. 4A:4-4.8 (b)(4)."
In one instance, an appointment decision was overturned when an appointing authority failed to follow the command of N.J.A.C. 4A:4-2.1(c), which requires that minimum qualifications for a position be announced beforehand. In re Hruska, 375 N.J.Super. 202, 209-12, 867 A.2d 479 (App.Div.2005). The appointing authority impermissibly removed a candidate from an eligibility list on the basis of a threshold qualification that it created subsequent to the list’s certification. Id. at 209-212, 867 A.2d 479. Because Foglio asserts only that his bypass was arbitrary and unsupported by sufficient rationale, and not that the appointing authority illegally instituted appointment procedures that are inconsistent with the Rule of Three, there is no need to address whether the rationale of that decision is sound.
Furthermore, the record here is not as bare as either petitioner or the majority declares. Contradicting the allegation that the appointing authority's decision was purely arbitrary, there is evidence in the record that Foglio was bypassed because his interview performance had been "weak” and because his educational qualifications were less impressive than the candidates chosen. Each of these reasons is substantiated by the record and sufficient to dispel an allegation of arbitrary action unsupported by record evidence.