Lenore Levine and ; Kesziah Ford, CSC Docket No. 2018-517, 2018-1223

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BackgroundLenore Levine and Kesziah Ford request reconsideration of the final administrative determination in In the Matter of County Correction Captain (PC1189P) and County Correction Lieutenant (PC1202P), Hudson County (CSC, decided June 7, 2017). A copy of that decision is attached hereto and incorporated herein.

The facts of this matter are thoroughly discussed in the attached decision and will not be reiterated herein.

It is noted that Levine and Ford submitted separate identical requests in which they present that they are “appealing the following”:

1. The decision to hold a make[-Jup test.

2. Allowing the 9 displaced supervisors to take the ‘makef-]up’ examination in this matter.!

' The appellants provide a list of nine “demoted supervisors” in which they include Felix and Geoghegan. As noted in In the Matter of County Correction Captain (PC1II89P) and County Correction Lieutenant (PC1202P), Hudson County, supra. a total of eight individuals were returned to their prior held titles. It is noted Felix did not receive an appointment to the County Correction Lieutenant title and thus, was not “demoted.” It is further noted that Geoghegan submitted an application for the PC2530T examination by the original filing deadline and sat for the test on original administration date. Thus, Geoghegan was not provided with a make-up.

3. Allowing 2 sergeant[s] who previously signed up for and were a no show [sic] into the make[-]up test.

4. Allowing sergeants who previously did not sign up for or take the original test to take the make[-]up test.

5. The scoring of the make[-Jup tests.

6. Any leaves of absence during the requisite ‘time in grade’ qualification should be deducted.

7. The proceedings and lack of representation of the current candidates on the eligible list.

Specifically, with respect to points 1 and 2, the appellants argue:

Civil Service complied with the Appellate Division findings and removed those supervisors from the appropriate lists but decided to afford them a second bite of the apple by calling for a ‘make[-Jup test’

[which was administered] in May of 2017 . . . This appellant objects to

Civil Service holding a makef[-Jup test for the displaced officers in its entirety as being manifestly unfair and unjust to those officers who originally followed the rules and took the original test. Those 9 displaced supervisors attempted to, and were almost successful in stealing their titles and increased salary by back dating their appointment date at the direction of the appointing authority. They should not be rewarded. Likewise, the legitimate applicants should not be punished.

Appellant's argumentRegarding point 3, the appellants contend that “two officers, Paul Morales and Mi[g}uel Matos, registered at that time to take the test, and did not show up on the test date. Even though those two officers were already promoted, they signed up to take the test because they knew the promotions were under appeal and there was a good possibility that they would lose the appeal. They should not be given another opportunity to take the test, specifically by way of the make-up test, as they were already given that opportunity and did not show up.”3 Regarding point 4, the appellants assert that “the ‘make-up’ test was also opened up to those officers that were eligible to take the test by the November 15, 2015 clos[ing] date but chose not

? As noted previously, the facts of this matter were clearly discussed in In the Matter of County Correction Captain (PC1189P) and County Correction Lieutenant (PC1202P), Hudson. Connty, supra. In this regard, it is not clear how the appellants derived this conclusion. 3 The appellants argue, in essence, that Morales and Matos should have foreseen the Appellate Division's determination in March 2017 and as such, they should have taken the PC2556T exam administered in May 2016 for County Correction Lieutenant, the title to which they had been appointed in November 2015. The appellants further contend that given their lack of prescience, Morales and Matos should not be provided with any promotional opportunities going forward, to take the test at that time. The decision to open up the test to new candidates, together with those officers that were no shows at the first test, added yet another officer who gained additional experience to the list and who would bump the other officers to be ranked lower on the eligibility list.”"'_ With regard to point 5, the appellants maintain:

Those displaced supervisors had already served a full 22 months in the title they now had to test for. Allowing them to test for positions they already held for nearly 2 years is no more than a formality and highly prejudicial to those already on the list. The test is to be based on merit and fairness. The others already on the list were not given the opportunity to hold the position prior to taking the test, nor did they receive the vast amount of training, education and hands on experience that those displaced supervisors wrongfully received and benefitted from. The test results are in question and should be weighted to make a level playing field for all those competing for the positions. Whether it be by imputing additional weight to those who previous took the test, or by subtracting an additional amount/percentage from the make-up test scores, or both, Civil Service has stopped short of making an effort to keep the results fair to all’ and appears to cater only to those whose false representation® created the dilemma they now find themselves in.

Regarding point 6, the appellants contend, “Some officers may have taken a substantial amount of time off by way of leave of absence during the qualification period. That time should be subtracted from the ‘one year’ requisite of time and disqualify those officers.”’ With respect to point 7, the appellants argue:

‘ A basic tenet of the Civil Service Act and its implementing rules is that appointments and promotions are awarded based on merit and fitness which is measured by competitive examinations. Thus, requiring the appellants to compete with more of their peers is consistent with civil service principles.

5 Although the appellants claim that the displaced individuals received an unfair advantage from serving in the County Correction Lieutenant or County Correction Captain titles, respectively, it is noted that these individuals initially scored well on the PC1189P and PC1202P exams, respectively, and subsequently, on the PC2556T and PC2530T exams, respectively. As such, the merit and fitness of the displaced individuals was consistently demonstrated on these tests. § As clearly indicated in In the Matter of County Correction Captain (PCII89P) and County Correction Lieutenant (PC1202P), Hudson County, supra. the Commission did not determine that there were any false representations made by the eight affected individuals.

* While the appellants do not provide any further information, e.g.. the names of the individuals or the type of leave, it is noted that the longstanding interpretation of N.-/.A.C. 1A:4-2.6(a)1 is that permanent service before and after a leave of absence is combined, or aggregated, to fulfill the one year time-in-grade requirement. See In the Matter of George L. Venturi, et al. (MSB, decided June 2, 1998). Thus, absent specifics, the Commission cannot address this matter further.

There were 17 officers that successfully passed the test and who were ranked according to their scores in accordance with Civil Service rules.

. . Neither Civil Service, nor the County solicited any of them to ask how they would be impacted by the decisions that were being made.

Civil Service solicited input from all the supervisors who were impacted by the Appellate Division decision,* but never solicited input from the 17 officers who would be impacted by the decision that Civil

Service was about to make to hold a ‘make-up’ test. The Appellate

Division did not address the issue of a ‘make-up’ test in its ruling.

In a separate letter, Levine adds that “there could possibly be a recipe for corruption with the County of Hudson and the Supervisors Union NJ PBA 109A. Additionally, I am requesting for the [C]ommission to desist employees from the art of possibly committing violations of employee rights possibly federal violations. Finally, for the [C]Jommission to make sure all staff members governed by civil service guidelines are treated equally and fairly at all times.” She maintains that “it is my sole request that civil service take action by stopping the suffering that many employees are being forced to endure each and [every day] in the workplace affecting the employees and their families.” She presents:

I strongly believe it is at this time that the County of Hudson and Civil

Service Commission take the act of righteousness by reviewing all documents, appellate court [sic], letters of recommendation from Law

Department of Hudson County, and the previous 2013 promotional list, etc.[,] as well as all other documents that [are] related to this ongoing matter ... It is my belief that the actions of the above eight law enforcement officers who from the past were union board members are now contaminating the present executive board members to do violations of contracts by circumventing by going to [sic] the County of

Hudson political officials to make deals for themselves and not for the membership ... Overall, there was no action taken against the supervisors of law enforcement mentioned above for the many numerous amounts of possible violations. The violations stemmed from violations from civil service as well as county policy rules and regulations . . . It saddens me that ali innocent people who have taken the test legally are suffering from not being promoted as a result of these actions . . . The supervisors who had taken the test rightfully should be compensated for those eight law enforcement officers

® DARA staff is unaware of any such solicitation by the Commission. It is noted that the appellants did not provide any further information regarding this alleged solicitation or any documentation to support their claim. ' mentioned above whom falsely took the test causing eight supervisors to suffer.?

CONCLUSION

N.J.A.C. 44:2-1.6(b) sets forth the standards by which the Commission may reconsider a prior decision. This rule provides that a party must show that a clear material error occurred or present new evidence or additional information which would change the outcome of the case and the reasons that such evidence was not presented during the original proceeding.

In the present matter, the appellants have failed to meet the standard for reconsideration. The appellants do not present new evidence or additional information which was not presented at the original proceeding which would change the outcome of the original decision, nor have the appellants proven that a clear material error has occurred in the original decision. Accordingly. based on the record presented, the appellants have failed to support their burdens of proof in this matter.

Moreover, as noted in In the Matter of County Correction Captain (PC1189P) and County Correction Lieutenant (PC1202P), Hudson County, supra, announcements for County Correction Captain (PC2530T). Hudson County and County Correction Lieutenant (PC2556T), Hudson County, were issued on November 1, 2015 and closed November 21, 2015. It is noted that neither appellant met the requirements to apply for PC2530T. Furthermore, Ford did not file an application for the PC2556T examination. Thus, it does not appear that Ford possesses standing to bring this matter before the Commission.

With regard to Levine, it is noted that Levine, who sat for the PC2556T test, appeared at rank 8 on the resultant eligible list. Although Levine does not articulate the remedy she is seeking, it is noted that individuals whose names merely appear on a list do not have a vested right to appointment. See In re Crowley, 193 N.J. Super. 197 (App. Div. 1984), Schroeder v. Kiss, 74 N.f. Super. 229 (App. Div. 1962). The only interest that results from placement on an eligible list is that the candidate will be considered for an applicable position so long as the eligible list remains in force. See Nunan v. Department of Personnel, 244 Nid. Super. 494 (App. Div. 1990). However, it is noted that Levine received a regular appointment to the County Correction Lieutenant title effective May 14, 2018.

® The Commission does not have jurisdiction to address issues regarding union malfeasance, union nonfeasance or Hudson County policies. Rather, the Commission renders the final administrative determination on matters involving the interpretation and application of Civil Service rules. Given that Levine has not provided any specifics or evidence to support any alleged violations of Civil Service rules or laws, the Commission is unable to review these allegations further.

ORDER

Therefore, it is ordered that these requests be denied.

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