Alexander Gathings, CSC Docket No. 2020-2001

BackgroundAlexander Gathings appeals his removal from the list for Fire Fighter, (M1853W) Morristown, due to his failure to appear for the scheduled Physical Performance Examination (PPT).

The subject eligible list was certified to Morristown (OL191203) was issued on October 3, 2019, was returned by the appointing authority on June 23, 2020 and cancelled. No appointments were made due to budget constraints. At the time the certification was issued, eligibles on the certification were notified via email that a physical performance test (PPT) was scheduled. Those who failed to appear for the scheduled examination or who failed the examination were removed from the eligible list as well as any other eligible list that stemmed from the same examination. The appellant failed to appear for the PPT and as a result, was removed from the eligible list for Morristown and all lists resulting from the same examination announcement.

Appellant's argumentOn appeal, the appellant submits a letter from Robert Flanagan, Fire Chief, Morristown, indicating that he informed the appellant that the hiring process was being paused due to the town’s budget constraints. As a result, the appellant did not pursue the PPT examination.

AnalysisThe Civil Service Commission notes that PPT testing was halted indefinitely as noted in In the Matter of Fire Fighter Physical Performance Test (CSC, decided September 30, 2020.)

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CONCLUSION

There are several issues involved. The first is whether eligibles should be removed from the list for failing to appear for the PPT when a certification is subsequently cancelled. The second is whether it is reasonable for an eligible to assume that since the hiring process has been suspended, taking the PPT becomes unnecessary. As noted earlier, the Commission indefinitely halted PPT testing due to safety concerns for candidates because of the COVID-19 pandemic. Additionally, as a result of the COVID-19 pandemic, some appointing authorities returned certifications without making any permanent appointments and those certifications were cancelled. Given the uncertainties surrounding the nature and spread of the virus, it would be unfair to remove the name of an eligible from consideration for not appearing for the PPT when the certification was ultimately cancelled. Similarly, if an eligible whose name is certified from a Fire Fighter eligible list is advised by a representative of the appointing authority that the hire process has been suspended, and that certification is ultimately cancelled, it is reasonable that the eligible would infer that taking the PPT is unnecessary.

Therefore, with respect to certifications which have been returned by the appointing authority without making an appointment, for Fire Fighter examination with symbols ending in W, and were cancelled, eligibles on the list should not be removed for not appearing for the PPT. With respect to the certification OL191203, since the Fire Chief informed eligibles that the hiring process was being suspended indefinitely due to budgetary constraints, the appellant and Justin Ford were removed for failing to appear for the PPT. However, given that it is reasonable that they could conclude that taking the PPT was unnecessary, their names should be added to the current certification (OL210526), which issued June 28, 2021.

This decision is based on the unique circumstances resulting from the response to the current COVID-19 Pandemic and the resulting changes and suspensions of PPT testing procedures. Nothing in this decision prevents the Division of Test Development and Analytics, in conjunction with the Division of Agency Services, from establishing future policies that direct candidates to take the PPT regardless of the hiring status of individual jurisdictions when PPT testing is resumed.

ORDER

Therefore, it is ordered that this appeal be granted, Alexander Gathings and Justin Ford be added to Certification OL210526 for Morristown. It is further ordered that eligibles who were removed from Fire Fighter examinations lists with symbols ending in W based on their failure to appear for the PPT, whose certifications were subsequently cancelled, be restored for prospective considerations only.

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