James Bruther, CSC Docket No. 2019-3688

BackgroundThe Division of Agency Services (Agency Services), on behalf of the College of New Jersey (TCNJ), requests that James Bruther, Charles Clement, Scott Leusner, and Michael Sedwick be assigned retroactive appointment dates to the Sergeant Campus Police title.

By way of background, the eligible list for Sergeant Campus Police (PS7207J), College of New Jersey, promulgated on February 12, 2015 and expired on February 11, 2018. The subject list contained the names of five eligibles in the following rank order: Michael Sedwick, James Bruther, Charles Clement, Scott Leusner and Tania Ryan. Effective November 30, 2016, the first and only certification was issued from the PS7207J eligible list (Certification No. PS161585). In disposing of PS161585, which contained the names of the first three eligibles, TCNJ appointed all three individuals effective November 30, 2016.

Appellant's argumentIn its request, Agency Services explains that “the CSC notified [TCNJ] that PS161585 was improperly disposed.”1 Subsequently, the certification was amended and returned indicating that Sedwick,2 Bruther, and Clement were each appointed effective November 30, 2016. Agency Services further notes that “the appointments were recorded . . . with a notation that the appointing authority will submit a request [for] retroactive effective date[s].” With respect to Leusner, the appointing authority promoted him to fill a vacancy but “updated his PMIS record to reflect February 4, 2017 as his provisional appointment date” rather than requesting a certification in order to make a permanent appointment, which was the appointing authority’s intent.

Background1 A review of the record finds that on November 30, 2016, TCNJ requested a certification of the PS7207J eligible list. In its request, TCNJ indicated three vacancies and the certification was issued with the first three names. In disposing of PS161585, which was initially returned on January 18, 2017, TCNJ listed all five names and appointed Sedwick, effective March 23, 2015, Bruther, effective October 15, 2016, and Clement, effective May 14, 2016. As a result, the Certification Unit contacted TCNJ indicating the deficiencies and requested that PS161585 be amended.

CONCLUSION

RuleN.J.A.C. 4A:4-3.4 provides that an expired eligible list may be revived under the following circumstances: 1. To implement a court order, in a suit filed prior to the expiration of the list; 2. To implement an order of the Civil Service Commission (Commission) in an appeal or proceeding instituted during the life of the list; 3. To correct an administrative error; 4. To effect the appointment of an eligible whose working test period was terminated by a layoff; or 5. For other good cause. See N.J.S.A. 11:4-6. A retroactive appointment date “for seniority purposes only” may be approved when it is evidenced that an appellant could have been appointed on the subject date, but through error on the part of either the appointing authority or the Commission, received a later appointment date, or for other good cause. See N.J.A.C. 4A:4-1.10(c). The “for seniority purposes only” appointment designation establishes that an appellant has no claim for or entitlement to back pay. However, such an award establishes that for seniority-based programs, such as salary step placement, layoffs, and vacation leave time entitlement, seniority is predicated upon the retroactive appointment date. See In the Matter of Wayne A. Robbins (Merit System Board, decided September 5, 1991).

AnalysisIn the instant matter, the record establishes that the appointing authority intended to promote Sedwick, effective March 23, 2015, Bruther, effective October 15, 2016, Clement, effective May 14, 2016, and Leusner, effective February 4, 2017, to the Sergeant Campus Police title, but due to administrative error, the appointing authority did not request certifications. Nevertheless, had the appointing authority requested certifications at the time of the above noted dates, Sedwick, Bruther, Clement, Leusner could have been permanently appointed on those dates.3 Under these circumstances, good cause has been presented to revive the Sergeant Campus Police (PS7207J), College of New Jersey list to effectuate their regular appointments. Furthermore, the appointing authority verifies that Bruther,

2A review of the record finds that Sedwick resigned in good standing effective October 2, 2017. Thus, TCNJ requests that his employment record be corrected.

3 It is noted that Bruther is a non-veteran and thus, he could have been bypassed. In addition, although Leusner did not appear on PS161585, as noted above, Leusner’s name appears next on the subject eligible list, i.e., after Clement, and is reachable for appointment.

Clement, Leusner have been serving as a Sergeant Campus Police since the above noted dates. Therefore, based on the foregoing, it is appropriate to grant a retroactive date of permanent appointment to the appellants as Sergeant Campus Police effective as of the above noted dates, for seniority and record keeping purposes.4

ORDER

Therefore, it is ordered that this request be granted and the Sergeant Campus Police (PS7207J), College of New Jersey eligible list be revived in order to record the permanent appointment of Sedwick, effective March 23, 2015, Bruther, effective October 15, 2016, Clement, effective May 14, 2016, and Leusner, effective February 4, 2017, to the Sergeant Campus Police title, and all of their seniority based benefits be adjusted accordingly.

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