the Bergen County Sheriff and County Police Officer Title Series, CSC Docket No. 2018-1723, 2021-310

BackgroundThe Bergen County Sheriff, 1 represented by Daniel Zwillenberg, Esq., appeals the determination of the Director of the Division of Agency Services (Agency Services), denying his request to allow out-of-title series supervision of County Police Officers and Sheriff’s Officers and for the out-of-title work experience to be credited for promotional examination purposes. Additionally, Bergen County, represented by Julien K. Neals, Esq., County Counsel, the Bergen County Sheriff, and the Police Benevolent Association (PBA) Local 134/134A, represented by Stephen B. Hunter, Esq., petition the Civil Service Commission (Commission) for acknowledgment of the attached Memorandum of Agreement (2020 MOA), including the Sidebar Agreements with PBA Local 134/134A and PBA Local 49, represented by Michael A. Bukosky, Esq., which was entered into by the parties on August 14, 2020 and ratified by the Bergen County Board of Chosen Freeholders by resolution on September 2, 2020.

By way of background, the Bergen County Board of Chosen Freeholders passed an ordinance on October 16, 2013 to amend the County Administrative Code to transfer the “Division of Bergen County Police Department” from the Bergen County Department of Public Safety to the Bergen County Sheriff’s Office. A MOA for the Long Term Realignment of Police Services (2015 MOA) was entered into on January 1, 2015, 2 whereby the Bergen County Police Department was realigned as a division of the Sheriff’s Office known as the “Bergen County Sheriff, Bureau of Police Services”

1 This matter was filed on behalf of former Sheriff Michael Saudino. The Bergen County Sheriff is now Andrew Cureton. 2 It is noted that portions of the 2015 MOA were amended in March 2017.

(Bureau) under the control of the Sheriff. However, incumbents in the County Police Officer title series were not recorded as organizationally transferred to the County Sheriff in the County and Municipal Personnel System (CAMPS) until March 1, 2017. Thereafter, the Bergen County Sheriff submitted a layoff plan to the Division of Agency Services (Agency Services), dated March 23, 2017, and an amended plan dated March 31, 2017, targeting 26 County Police Officers (three captains, five lieutenants, three sergeants, and 15 police officers) for layoff for reasons of economy and efficiency. Agency Services approved the plan and notices of layoff, including layoff rights determinations (originally issued May 26, 2017, later amended on July 13, 2017, and corrected on July 19, 2017), were sent to affected employees. The employees were either laid off or demoted in lieu of layoff effective June 26, 2017 and were placed on applicable special reemployment lists (SRLs).

PBA Local 49 had requested a stay of this layoff with the Commission, arguing, germane to the matter at hand, that the affected employees should properly be reassigned to perform Sheriff’s Officer work, that the duties performed by County Police Officers and Sheriff’s Officers are functionally the same and that these should have layoff rights to each other. Upon review the Commission explained, in pertinent part, the differences between the Sheriff’s Officer and County Police Officer titles under this agency’s classification plan, including federal and statutory definitions, and an analysis of the “KSAs” in the job specifications for the titles, in order to show why the titles did not possess any displacement rights to one another. Accordingly, the Commission denied the stay request. See In the Matter of County Police Officers, Bergen County Sheriff’s Office (CSC, decided June 7, 2017). PBA Local 49 then filed an appeal to the Superior Court of New Jersey, Appellate Division (Appellate Division). See In the Matter of Layoffs of Bergen County Sheriff’s Department, Docket Nos. A-4103-16T3 and A-4516-16T3 (App. Div., April 18, 2019). In a consolidated decision, the Appellate Division determined that since the Bergen County Sheriff’s Office carried out the layoff plan and the Commission issued a decision on the layoff rights of the laid off officers, the stay matter before the court was considered moot.

With regard to the affected officers’ layoff rights, Alan Brundage, a County Police Captain, and other Bergen County police personnel, represented by PBA Local 49, appealed the determination of their layoff rights by Agency Services to the Commission. Upon its review, the Commission found that their layoff rights were properly determined. In reaching its decision, the Commission incorporated the reasoning from its June 7, 2017 stay decision which denied the PBA a stay of Agency Services’ approval of the layoff plan. It found that the appellants serving as County Police Sergeant, County Police Lieutenant, and County Police Captain only possessed displacement rights to lateral or demotional positions within the County Police title series. County Police Officers did not possess displacement rights to the title of Sheriff’s Officer. See Matter of Alan Brundage, et al., Bergen County Sheriff’s Office (CSC, decided March 27, 2018). Subsequently, PBA Local 49 filed an appeal with the Appellate Division, which affirmed the Commission’s decision. The court found that

County Police Officers did not have lateral title rights against Sheriff’s Officers as the titles were too dissimilar based on the Commission’s comparison of the different duties and roles of the two positions. Consequently, the Appellate Division indicated that such a determination made the PBA’s claim that the layoff unit should have been expanded immaterial. See In the Matter of Alan Brundage, et al., Docket No. A-3466- 17T3 (App. Div. June 29, 2020).

It is noted that appeals were also received by the Commission which challenged the good faith of the June 26, 2017 layoff. These appeals were transmitted for a hearing at the Office of Administrative Law (OAL) on September 20, 2017 and are pending an initial decision by an Administrative Law Judge.

Bergen County Sheriff’s Office Request for Rule Relaxation to Permit Reporting Relationship Between Incumbents in County Police Officer and

Sheriff’s Officer Title Series

In late 2017, amidst this background, the Bergen County Sheriff, who is the appointing authority for the Bergen County Sheriff’s Office, requested relaxation of N.J.A.C. 4A:3-3.4 to permit the establishment of reporting relationships between the County Police Officer and Sheriff’s Officer title series in the Bureau. Additionally, pursuant to N.J.A.C. 4A:4-2.6(c), the appointing authority requested that incumbents in supervisory positions in the Bureau receive credit for out-of-title work experience for future promotional examinations. The request was based on a claim that the Bureau lacked a sufficient organizational structure because of the June 26, 2017 layoffs and due to the attrition of Bureau personnel by way of retirements. It is noted that 44 employees in the County Police Officer title series had actually been laid off or demoted in lieu of layoff. The appointing authority maintained that positions needed to be filled by individuals in the Sheriff’s Officer title series and not from the County Police Officer title series pursuant to an “internal policy” enacted in 2015. By letter dated November 30, 2017, the Director of Agency Services denied the request noting that the two titles were dissimilar and that special reemployment lists (SRL) had been established after the layoff and that the appointing authority should use the SRLs to fill the needed positions.

The Bergen County Sheriff appealed Agency Services’ determination to the Commission. After the parties filed written arguments, the matter was presented to the Commission at its June 6, 2018 meeting. However, the matter was held for further review. In that regard, the Commission’s Chairperson indicated that the request of the Bergen County Sheriff was to permit the blanket authorization for the performance of out-of-title work with respect to the County Police Officer and Sheriff’s Officer title series. As such, the consistent assignment of out-of-title work essentially meant that a position is misclassified. Therefore, given that the primary issue in the case was whether the Commission would permit incumbents in the County Police Officer or Sheriff’s Officer title series to be misclassified, the parties were given the opportunity to submit their positions on this issue. Furthermore, since the Commission’s layoff rights determination was appealed to the Appellate Division, and the issues surrounding that case touched upon the issue of the out-of-title work, the present matter was held in abeyance pending the court’s determination. No additional positions on the issue were ever submitted by the parties to the Commission for review and the Appellate Division found that County Police Officers did not have lateral title rights against Sheriff’s Officers as the titles were too dissimilar based on the Commission’s comparison of the different duties and roles of the two positions. See Brundage, et al., supra.

In the meantime, PBA Local 49 alleged that the appointing authority was utilizing County Correctional Police Officer, Sheriff’s Officer, and County Police Officer titles interchangeably as it deemed fit. Agency Services received several petitions for position classification reviews from individuals serving in the County Correctional Police Officer title series within the Bergen County Sheriff’s Office. Additionally, four petitions for position classification reviews were received by Agency Services from individuals in the County Police Officer title series. The matters were held pending the resolution of the within matter.

Request for the Commission to Acknowledge Settlement

On August 14, 2020, Bergen County, the Bergen County Sheriff, and PBA Locals 134/134A and 49 entered into another MOA. The Commission received the attached settlement agreement on September 15, 2020, and as set forth in more detail below, the parties agreed, among other things, that the remaining individuals in the County Police Officer title series would be afforded the opportunity for a title change to the corresponding rank in the Sheriff’s Officer title series. In addition, the officers who were demoted in lieu of layoff in 2017 would be “repromoted” and given the corresponding rank in the Sheriff’s Officer title series. As the Appellate Division has now concluded its review of the layoff rights appeal and the parties have been given the opportunity to brief the aforementioned classification issue and have since entered into a settlement agreement which touches upon said issue, the pending matter and the 2020 MOA and the Sidebar Agreements are now being presented to the Commission for its final determination and acknowledgement.

As set forth in the attached 2020 MOA, the parties agreed that the officers in the County Police Officer title series “will be offered the opportunity to accept a lateral title change to the Civil Service title series of County Sheriff’s Officer 3 at the rank held at the time of lateral title change . . . This offer will remain open for a period of thirty days from the date this agreement is ratified by all the parties and approved by the [Commission].” The parties further agreed that, upon the lateral title change, the officers would hold permanent status in their respective Sheriff’s Officer title.

3 The proper Civil Service names of the titles in the Sheriff’s Officer title series do not contain “County.”

The lateral title change was offered as a voluntary option 4 and if an officer declined to participate, “he or she shall remain a County Police Officer and shall not relinquish any rights.” The 2020 MOA also called for the repromotion of supervisory County Police Officers who had been demoted in lieu of layoff in 2017. Specifically, the agreement stated that “upon acceptance of the lateral title change to the Civil Service title of County Sheriff’s Officer, [the demoted officer would] be repromoted to the rank he or she held prior to the 2017 Layoff. This repromotion shall be effected immediately prior to the completion of the lateral title change . . . .” Further, the agreement indicated that an officer’s repromotion would be contingent upon his or her request for a title change. If the lateral title change “is not completed for any reason, the officer will not be repromoted.”

As for “Civil Service Seniority,” the 2020 MOA noted that “continuous permanent service accumulated as a County Police Officer prior to the lateral title change shall be considered as continuous permanent service with the Sheriff’s Office.” “PBA 49 members who become Sheriff’s Officers will receive year-for-year credit for their service in the Civil Service title of County Police Officer which will be applied to their lateral title change as Sheriff’s Officers.” In addition, the parties stipulated that “[a]n employee accepting a lateral title change to the Civil Service title series of Sheriff’s Officer shall be eligible for promotion in the Civil Service title series of County Sheriff’s Officer in accordance with [Commission] regulations concerning eligibility for promotion . . . .” As for the salary of the officers, it was noted, among other provisions, that salaries would be “frozen following the lateral title change at the rate of pay that officer received immediately prior to the lateral title change until such time when pensionable salaries provided by the PBA 49 CBA and PBA 134 CBA are equalized or until such time as the employee’s rank changes (e.g. promotion) after the lateral title change.”

The 2020 MOA also set forth provisions regarding the dismissal or withdrawal of any pending litigation. With regard to Civil Service matters, the agreement noted that the PBA would dismiss its claim as a “party” to the good faith layoff appeals (pending at OAL) 5 and the layoff rights appeal (which had already been decided by the Appellate Division as previously indicated). Nonetheless, it was recognized that individual claims would not be dismissed as the PBA did not have the authority to dismiss such appeals. However, the 2020 MOA also stipulated that any employee who voluntarily accepts a lateral title change “must dismiss any individual pending litigation . . . arising out of or relating to the 2017 Layoff.” Moreover, in consideration of the lateral title change and as a “compromise of all litigation to which the officer

4 Exhibit A of the attached 2020 MOA includes a proposed Request for Lateral Title Change and

Release prepared for an officer’s signature. 5 Any settlement or withdrawal of an appeal pending before the OAL must first be presented to the

Administrative Law Judge as the jurisdiction over the appeal is currently with OAL. Upon transmittal back to the Commission from the OAL, the Commission will make the final administrative determination if any such settlement is in compliance with Civil Service law and rules.

may be party,” the parties agreed that $20,000 would be paid to each of the County Police Officers accepting the lateral title change as a lump sum payment, or, for pension purposes, paid as back pay or partial back pay for a period of one year retroactive from the effective date of a repromotion and lateral title change. “Such payment is simultaneously considered payment in settlement of claims of improper demotion as raised within the various litigation noted herein in order to make such officers whole.”

CONCLUSION

It is initially noted that the Commission has reviewed the 2020 MOA and Sidebar Agreements and will address only issues under its jurisdiction. It is well settled that the Commission does not have jurisdiction to review local grievances (see N.J.A.C. 4A:2-3.1(d)) or items which are contained in a collective bargaining agreement negotiated between the employer and the majority representative. See In the Matter of Jeffrey Sienkiewicz, Bobby Jenkins and Frank Jackson, Docket No. A- 1980-99T1 (App. Div., May 8, 2001). The proper forum to bring such concerns is the Public Employment Relations Committee (PERC). See N.J.S.A. 34:13A-5.3 and N.J.S.A. 34:13A-5.4(c). Furthermore, salary and benefits specifically regulated by a local appointing authority will not be reviewed unless otherwise noted. In that regard, salary disputes in local service are not reviewable by the Commission unless the base salary of the employee is outside the established range for the job title. See N.J.S.A. 11A:3-7 and N.J.A.C. 4A:3-4.1. However, the Commission emphasizes that it does not disturb any term of MOA or Sidebar Agreements regarding salaries or lump sum payments. Moreover, N.J.A.C. 4A:6-1.1(a) provides that in local service, appointing authorities shall establish types of leaves and procedures for leaves of absence although minimum amounts are provided in the regulations. 6 As such, the section of the agreements pertaining to contractual seniority for assignments and intergovernmental transferees, salary and compensation matters (including longevity, holiday, and differential pay), vacation leave, health benefits, retiree benefits, and any litigation pending at PERC relating to the foregoing will not be addressed.

The policy of the judicial system strongly favors settlement. See Nolan v. Lee Ho, 120 N.J. 465 (1990); Honeywell v. Bubb, 130 N.J. Super. 130 (App. Div. 1974); Jannarone v. W.T. Co., 65 N.J. Super. 472 (App. Div. 1961), cert. denied, 35 N.J. 61 (1961). This policy is equally applicable in the administrative area. A settlement will be set aside only where there is fraud or other compelling circumstances. See Nolan, supra. In this matter, no such compelling circumstances exist. Rather, the Commission finds that the terms of the 2015 MOA eroded the classification of

6 Although a voluntary option is proposed for a lateral title change of County Police Officers to the

Sherriff Officer title series, the regulations also provide that vacation and sick leaves for police officers and firefighters are established by local ordinance. See N.J.A.C. 4A:6-1.1(a)4, N.J.S.A. 40A:14-7, N.J.S.A. 40A:14-118.

positions when it transferred the County Police Officers to the Sheriff’s Office. Given that the appointing authority is willing to balance the equities in this matter, the Commission finds that the terms of the 2020 MOA over which the Commission has jurisdiction provide an equitable solution and should be acknowledged. Accordingly, the Commission shall permit those individuals in the County Police Officer title series who decline the title change to the Sheriff’s Officer title series to retain their positions and remain misclassified in the County Police Officer title series until vacated wherein the positions will then be classified as Sheriff’s Officer. See In the Matter of Hortensia Arce, et al. (Commissioner of Personnel, decided April 11, 1995) (Due to erosion of classification plan, Commissioner held harmless incumbents in five positions and permitted the positions to remain classified as Word Processing Specialist 3 until vacated wherein the positions would be classified as Senior Clerk Typist). The appropriate effective dates of the title change shall be when the individual positions are either vacated by those individuals who opt to remain in the County Police Officer title series or 30 calendar days from the date of issuance of this decision for all other remaining officers in the County Police Officer title series who accept the title change. For those individuals who were demoted in lieu of layoff from supervisory or higher supervisory titles in 2017, the corresponding SRL shall be certified within 15 days of this decision and disposed in accordance with applicable Civil Service law and rules no later than 30 days from the issuance date of the Commission decision and on said 30th day, all of these supervisory positions in the County Police Officer title series shall be reclassified to the corresponding rank in the Sheriff’s Officer title series. It is noted that should an individual opt to remain in the County Police Officer title series and is listed on the supervisory SRL, the appointing authority may request that the eligible’s name be removed from the eligible list on the basis of “good cause as established by the appointing authority” for lack of interest in the Sheriff’s Officer title series.

RuleMoreover, in the cases of title changes, N.J.A.C. 4A:4-7.6(b)1 provides in relevant part that if both titles are substantially similar, then the employee shall retain accumulated seniority or service for purposes of determining promotional, layoff, or demotional rights and sick and vacation entitlements. However, pursuant to N.J.A.C. 4A:4-7.6(c)2, if the titles are dissimilar, then the employee shall only retain accumulated service for purposes of determining sick and vacation leave entitlement. Stated differently, title seniority is not retained. In addition, N.J.A.C. 4A:4-7.6(c) provides that if both titles are dissimilar, then the employee shall be appointed pending examination, if the new title is in the competitive division, and satisfactorily complete the working test period. The Commission notes that it has previously permitted County Police Officers to retain title seniority when the incumbents voluntarily agreed to have their titles laterally changed to the functionally dissimilar title of Sheriff’s Officer as an alternative to layoff. See In the Matter of County Police Officers, Essex County Sheriff’s Office (MSB, decided April 11, 2007) and In the Matter of Sheriff’s Officer, Hudson County (MSB, decided December 16, 1997). In this matter, the Commission has held, and the Appellate

AnalysisDivision has affirmed, that the titles in the County Police Officer and Sheriff’s Officer title series are functionally dissimilar. However, the parties have amicably agreed to the retention of title seniority, and given the complex history of these positions and for equitable reasons, the Commission finds it appropriate to relax the regulatory provisions and affords the employees in the County Police Officer positions title seniority in the corresponding Sheriff’s Officer title. See N.J.A.C. 4A:1-1.2(c). Furthermore, there is nothing in the record which demonstrates that the employees have not continuously performed the duties of their positions. Therefore, they should be considered as having successfully completed a working test period and their title change is to be considered permanent.

As previously observed, the 2020 MOA noted that “continuous permanent service accumulated as a County Police Officer prior to the lateral title change shall be considered as continuous permanent service with the Sheriff’s Office.” “PBA 49 members who become Sheriff’s Officers will receive year-for-year credit for their service in the Civil Service title of County Police Officer which will be applied to their lateral title change as Sheriff’s Officers.” Significantly, the 2020 MOA specifically indicates that former employees in the title of County Police Officer as of the date of the MOA, including employees who were laid off, “are not a party to and shall not be entitled to any of the benefits or other terms and conditions contained in this Agreement.” In other words, the 2020 MOA calls for any incumbents in the County Police Officer title series who now accept a lateral title change to have seniority as if they were incumbents in the Sheriff’s Officer title series prior to the 2017 Bergen County Sheriff’s Office layoff. Seniority would commence in the Sheriff’s Officer title series based on their permanent date of appointment with the Bergen County, Department of Public Safety, a different organizational unit, as a County Police Officer. Although the Commission has acknowledged this provision, it cannot be ignored that 10 entry-level County Police Officers who were totally displaced from employment from the Bergen County Sheriff’s Office are currently on the SRL for County Police Officer.

While it is speculative if the 2017 layoff would have been required had the incumbent County Police Officers voluntarily agreed to a lateral title change to Sheriff when the Bergen County Police Department was realigned to the Bergen County Sheriff’s Office, the Commission finds that it should provide an equitable remedy within its authority to the remaining County Police Officers on the SRL. Therefore, the 10 remaining individuals on the entry level County Police Officer SRL are deemed to have seniority as if they were an incumbent in the Sheriff’s Officer title based on their date of permanent appointment as a County Police Officer to the date that they were laid off. Additionally, the SRL for the entry level County Police Officer title shall be used as appropriate to Sheriff’s Officer for the Bergen County Sheriff’s Office and be utilized at the time of next certification for Sheriff’s Officer. If any of these 10 eligibles on the SRL are appointed as Sheriff’s Officers, their seniority shall be aggregated as if they had served in the Sheriff’s Officer title from their initial permanent appointment.

In addition, since the Commission has approved portions of the subject title change, any allegations of utilizing County Police Officer and Sheriff’s Officer positions interchangeably are now moot. However, while the allegation concerning the County Correctional Police Officer title series also raises issues of misclassification, that matter is not ripe for determination. As such, it is beyond the scope of this decision. In that regard, Agency Services is in receipt of petitions for position classification reviews of individuals serving in the County Correctional Police Officer title series. Those matters have been held pending the resolution of the within matter. The reviews may now proceed. Should the petitioners in the County Correctional Police Officer disagree with the classification determinations of Agency Services, they may appeal to the Commission pursuant to N.J.A.C. 4A:3-3.9(e).

Similarly, Agency Services may issue its determination regarding the four petitions for position classification reviews received from County Police Officer employees. Consistent with the timeframes established by the subject title change, any change in classification must be effective 30 days from the issuance date of this decision. 7 The Commission also directs that once a position is vacated, due to either resignation, retirement, removal from employment, or promotion or demotion through individual reclassification requests, said positions shall appropriately be classified in the Sheriff’s Officer title series. 8 Thus, any upward or downward reclassification must be made in the Sheriff’s Officer title series and not the County Police Officer title series. Additionally, the Sheriff’s Office is prohibited from recruiting, appointing, or promoting to any rank in the County Police Officer title series after the below noted SRL certifications are disposed. Thus, there should no longer be an open competitive or promotional announcement in the County Police Officer title series or recruitment by way of intergovernmental transfer. 9

7 It does not appear that the request for position classification review is subject to withdrawal per the

2020 MOA. Regardless, the Commission may review such positions under its broad reclassification powers. 8 The appointment of an officer from the supervisory SRL may render the position classification request moot. 9 Another classification issue was raised during the pendency of the within matter which stemmed from the June 7, 2017 layoff. In that regard, in February 2019, PBA Local 49 requested a stay and interim relief of any appointment or intergovernmental transfer made by the Bergen County Sheriff’s Office. It alleged that the Sheriff announced that the office was seeking new hires, as well as intergovernmental transfers, to fill positions formerly held by laid off County Police Officers. However, PBA Local 49 did not identify any person who had been appointed or transferred by intergovernmental transfer to a position that should have been classified by the County Police Officer title. As such, there was insufficient information for this agency to take action. Nonetheless, in the present case, the Commission has now prohibited the appointing authority from recruiting and appointing officers in the County Police Officer title series.

In order to effectuate this settlement, in accordance with the 2020 MOA, for those individuals who were demoted in lieu of layoff from supervisory or higher supervisory titles in 2017, the corresponding County Police Officer SRL shall be certified as appropriate to the corresponding level of Sheriff’s Officer within 15 days of this decision and disposed in accordance with applicable Civil Service law and rules no later than 30 days from the issuance date of the Commission decision and on said 30th day, all of these supervisory positions in the County Police Officer title series shall be reclassified to the corresponding rank in the Sheriff’s Officer title series.

ORDER

Therefore, it is ordered that this request be granted. Additionally, it is ordered that the SRLs for the various levels of the County Police Officer title series be certified as appropriate for the corresponding rank Sheriff’s Officer title series to affect the repromotions consistent with the settlement. Further, it is ordered that the SRL list for the entry level County Police Officer title be used as appropriate to Sheriff’s Officer for the Bergen County Sheriff’s Office and be utilized at the time of next certification. Finally, the Bergen County Sheriff’s request to permit out-of-title supervision is dismissed as moot and the Division of Agency Services is ordered to finalize the outstanding position classification reviews.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.