John Kelly, CSC Docket No. 2019-2812

BackgroundJohn Kelly appeals his non-appointment for a noncompetitive position as a Laborer 1 with Salem County.

The record in this matter indicates the following. The appellant applied for the subject position on March 1, 2019, but was not selected and filed the subject appeal. The appellant also appealed his non-appointment for a noncompetitive position with the Department of Environmental Protection as a Maintenance Worker 1, where he applied on July 27, 2018, and his non-appointment for a noncompetitive position with Salem County as a Building Maintenance Worker, where he applied on September 3, 2018. As this appeal was received on April 4, 2019, this agency informed the parties in an April 24, 2019 letter that the appeals concerning the Maintenance Worker 1 and Building Maintenance Worker positions were not timely and would not be forwarded to the Civil Service Commission (Commission) for review and a decision.

Appellant's argumentOn appeal, the appellant presents that he is a military veteran with veterans preference rights. He complains that he did not receive any notice concerning an interview or any other official notice as to the possibility of employment or non- selection regarding the subject position. The appellant indicates that he telephoned the appointing authority which informed him that the position was filled. He asserts that he meets the minimum qualifications for the subject title. Therefore, the appellant questions how someone with veterans preference rights was not contacted for an interview or otherwise considered for the position.

Appointing authority's argumentIn response, the appointing authority indicates that incumbents who serve as Laborer 1s are expected to plow snow in the winter and mow grass in the summer operating vehicles that require a Commercial Driver’s License (CDL), which the appellant did not indicate on his application that he possessed.

Appellant's argumentIn reply, the appellant states the announcement for the subject position did not require the possession of a CDL as it only indicated that one may be required. He highlights that the announcement states that the possession of a driver’s license, which he possesses, is only required if the operation of a vehicle, rather than employee mobility, is necessary to perform essential duties of the position. Therefore, the appellant believes that he meets the minimum qualifications for the subject position and his non-appointment violated his veterans preference rights.

CONCLUSION

RuleN.J.A.C. 4A:5-2.3 provides that in making appointments in the noncompetitive division, preference shall be given among qualified applicants to disabled veterans, then veterans. N.J.A.C. 4A:2-1.4(c) provides that the appellant has the burden of proof.

AnalysisInitially, while veterans preference does apply to the appointment of noncompetitive positions, it only applies to qualified applicants. See N.J.A.C. 4A:5-2.3. Additionally, there is no obligation under Civil Service law or rules for the appointing authority to proactively inform an applicant who is not qualified for a position in a noncompetitive title that the candidate is not being considered.

In this matter, the subject announcement indicated that a CDL may be required. Further, the appointing authority explains that it needs Laborer 1s to plow snow and mow grass operating vehicles that require the possession of a CDL. These duties are consistent with the job specification for the subject title. In other words, while not every appointing authority that hires Laborer 1s requires the possession of a CDL, an appointing authority can require the possession of CDL for incumbents in this title. As the appointing authority explains a legitimate business reason as to why it requires a CDL for this title, it was appropriate for the appointing authority not to consider the appellant for a position in the subject title, as the appellant was not qualified as he has not disputed that he lacks a CDL. Veterans preference rights only become applicable after an applicant is determined to be qualified for the position. See In the Matter of Joseph Chapman (MSB, decided October 7, 1997), aff’d on reconsideration (MSB, decided June 16, 1998). Accordingly, the appellant has not met his burden of proof in this matter.

ORDER

Therefore, it is ordered that this appeal be denied.

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