Marcello Errigo and James Weston, CSC Docket No. 2018-2495, 2018-2512

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Marcello Errigo and James Weston,! Sheriffs Officers, Passaic County Sheriffs Department, appeal the bypass and removal of their names from the eligible list for Sheriffs Officer Sergeant (PC1572S) due to unsatisfactory employment records. Exceptions regarding Marcello Errigo were filed on his behalf and exceptions regarding James Weston were filed on behalf of the appointing authority. A reply to exceptions was filed on behalf of James Weston.2

Having considered the ALJ's initial decision and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on July 21, 2021, adopted the recommendation of the Administrative Law Judge (ALJ) to uphold the bypass and removal of Marcello Errigo from the subject list and reversed in part the recommendation to reverse the bypass and removal of James Weston from the subject list.

DISCUSSION

The appellants in this matter were listed on the Sheriffs Officer Sergeant (PC1572S) eligible list. Both appellants were bypassed for appointment from certifications of the list and ultimately removed from the list. Upon their initial

' Official personnel records indicate that Weston retired, effective November 1, 2020. 2 The Commission notes that it thoroughly reviewed the submissions of all parties in this matter and found that none warrant any specific discussion as they are either unpersuasive, based on misunderstanding or misapplication of the regulatory framework or not relevant to the Commission's ultimate determination.

Administrative Law Judgeappeal to the Commission regarding those actions, the Commission found issues of material fact that could not be resolved on the written record and, thus, granted hearings at the Office of Administrative Law. See In the Matters of Marcello Errigo and James Weston (CSC, decided September 20, 2018). After the hearing, the ALJ made several findings. Regarding whether the appellants were bypassed or removed for improper reasons, the ALJ stated: With regard to alleged political motivations for the skips and subsequent removal of appellants’ names from the list, I CONCLUDE that it has not been proven, based solely on the facts in evidence, that the respective skips and list removals were politically motivated. While there is substantial evidence that the Department’s actions here were based on political and personal animus against appellants, said evidence is also largely anecdotal, based on innuendo and conjecture. Barring any admission on behalf of the sheriff or member of his “roundtable” advisory staff, it would be impossible to know the exact reason that Sheriff Berdnik and his administration ultimately decided to skip over the appellants for promotion on multiple occasions, and over glowing reviews and recommendations from various supervisors. After a thorough review of the entire matter, the Commission agrees with the ahove findings that the appellants have not sustained their burden of proof that their bypasses or removals were based on invidious, improper or illegal motivation, especially in light of the proposed legitimate reason professed, that the appellants had disciplinary histories which led to the selection of other lower-ranked eligible employees.

AnalysisRegarding the appellants’ bypasses and removals based on their respective disciplinary histories, the ALd concluded that: Errigo’s disciplinary history includes an actual guilty plea and criminal conviction, and is, therefore, substantial enough to constitute a rational basis for Errigo’s being bypassed and removed from the promotional list. I further CONCLUDE that Weston’s disciplinary history is considerably less severe, as is does not include any criminality whatsoever, does not include any recent infractions, and, thus, does not constitute a rational basis for bypass or list removal. While the Commission agrees with the ALJ regarding the removal of Evrigo from the list as his disciplinary history clearly supports removal from the list, for the reasons set forth later in this decision, it agrees that Weston’s disciplinary history was not sufficient to remove his name from the list. However, it finds that it was sufficient to bypass his name for appointment.

Administrative Law JudgeThe ALJ further concludes that the appointing authority violated N.J.A.C. 4A;:4-4.8(a)3, the “Rule of Three” on certification PL171320 since “Officer Errigo was the number 1 candidate on the list for promotion to sergeant, and Officer Weston was number 2. The County failed to effectuate the promotion of any of the top three candidates. Officers Errigo and Weston were passed over for candidates 5, 6, and 7 in clear violation of the rule of three, which requires that one of the top three candidates be promoted.” This finding is incorrect. The Rule of Three only requires that for each appointment, an appointing authority consider the top three ranked eligible candidates for each appointment. As the appellants were removed from the certification, they were not eligible for appointment. Thus, the appointing authority's appointments of the lower-ranked candidates was not a per se violation of the Rule of Three. The only open question, which will be resolved later in this decision, is whether there is a Rule of Three violation on the above certification if Weston’s name is restored?

The ALJ subsequently finds another Rule of Three violation regarding Weston. Specifically, the ALJ states “Weston is a veteran of the United States Coast Guard, which, as referenced in the above-cited regulation, provides an ever further level of protection regarding promotions off a Civil Service list . . . It is undisputed that Weston was skipped over multiple times, including the 2017 skip at the heart of the instant case, which seems to completely contradict N.J.A.C, 4A:4- 4.8(a}(3)(ii) as cited above.” This finding is in error. Weston was never considered a veteran for civil service examination and selection preference purposes. The Commission cannot ascertain how the ALJ came up with that conclusion as official personnel records clearly indicate Weston’s non-veteran status for civil service examination purposes. As such, there is no Rule of Three violation on that basis.

AnalysisFinally, in crafting a remedy for Weston, the ALJ indicates:

Administrative Law JudgeRegarding Officer Weston, I CONCLUDE that there is no rational basis for his being bypassed, and that, in light of his veteran status and the pertinent language in N.dJ.A.C. 4A:4-4.8(a)3(ii) as sited (sic) above, Weston should be promoted to Sergeant retroactive to the date of his bypass (December 27, 2017) with full back pay, back benefits, seniority, and incremental steps.

AnalysisFor the reasons set forth below, the Commission rejects the above remedy and instead finds that Weston’s name be reflected as bypassed on the PL171320 certification.

Administrative Law JudgeThe ALJ indicated his belief that “Weston’s disciplinary history is considerably less severe [than Errigo’s], as is does not include any criminality whatsoever, does not include any recent infractions, and, thus, does not constitute a rational basis for bypass or list removal.” While the Commission agrees that

AnalysisWeston’s disciplinary history did not support his removal from the PL171320 certification, it finds his history sufficient to be bypassed for appointment. In this regard, Weston’s relevant disciplinary history shows a five working day suspension in December 2014. Generally, while the Commission has determined that minor disciplinary actions do not generally constitute a sufficiently adverse employment record to justify the removal of an eligible’s name from a list, it has found that an applicant with a minor disciplinary history could be bypassed by an appointing authority in its discretion under N.JA.C. 4A:4-4.8. It is also noted that this discipline occurred less than three years from when Weston’s name was certified on PL171320. Accordingly, the Commission finds that Weston’s disciplinary history, while insufficient for removal, was clearly sufficient to bypass his name for appointment.’ What now must be reconciled is whether such a bypass creates a Rule of Three issue.

Certification PL171320 was headed by Errigo, followed by Weston and eight lower-ranked eligibles. Originally, Errigo and Weston were removed, as well as the 47H and 9TH ranked eligible. The 3), 7TH, 8TH and 10TH candidates were appointed and the 5TH and 6TH ranked candidates were bypassed. This disposition was proper as for each appointment, one of the top three interested eligibles was appointed. However, as the Commission has found that Weston could not be removed from the certification, further analysis is necessary. As Weston was not a veteran, he was not entitled to an appointment, thus, while the appointment of the 38D candidate would be permissible, the appointment of the 7TH, 8TH and 107TH candidates would be problematic. In this regard, to appoint those three candidates, Weston, as well as the 5TH and 6TH ranked candidates would all have to be bypassed. As such, those lower-ranked candidates could not be appointed absent a violation of the Rule of Three. In most cases, where a Rule of Three violation is present, the Commission will order the reissuance of the certification and order the appointing authority to properly redispose of the certification. However, the subsequent history of certifications from the list provides reconciliation in this matter and renders such a reissuance unnecessary.

The next certification of the list, PL181192 contained the 5TH and 6TH eligibles from above as the 187 and 2ND eligibles. It also contained three lower- ranked eligibles. In disposing of that certification, the appointing authority appointed the 1ST, 2ND, 4TH and 5TH candidates and bypassed the 3RD ranked candidate. This disposition was proper as for each appointment, one of the top three interested eligibles was appointed. Thus, as the appointing authority had appointed the 5T# and 6TH ranked candidates on PL171320 on the subsequent certification, it is reasonable to ascribe that it preferred those candidates to

3 In most circumstances, where a list removal is changed to a bypass, and like here, the appointment of the eligible is not mandated based on veterans preference, there is no further remedy that is provided so long as the bypass does not create a Rule of Three issue,

Weston.‘ In other words, under the Rule of Three, it is clear that the appointing authority, given the option of Weston or the 5TH and 6TH ranked eligibles on PL171320, would have appointed either of those eligibles and bypassed Weston for the legitimate reasons already provided.’ Further, given the above, Weston would also be entitled to be added to the PL181192 certification for consideration. However, as only one eligible was bypassed on that certification, he would not be entitled to appointment from that certification and would properly be listed as bypassed for the reasons presented previously.

ORDER

The Civil Service Commission finds that the action of the appointing authority in bypassing and removing Marcello Errigo from the Sheriffs Officer Sergeant (PC1572S) eligible list was justified and dismisses his appeal of those actions. Further, the Civil Service Commission finds that the action of the appointing authority in removing James Weston from the Sheriffs Officer Sergeant (PC1572S) eligible list was not justified and reverses that action. Further, the Commission orders that Weston’s name be reflected as bypassed on certifications PL161366,6 PL171320 and PL181192.

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