Nikko Vrisiotis, CSC Docket No. 2022-1414

BackgroundNikko Vrisiotis appeals the determination of the Division of Agency Services (Agency Services) which found that he was not employed in the announced unit scope for the promotional examination for Police Sergeant (PM4569C), Jersey City.

By way of background, the appellant’s name appeared on the certification issued July 13, 2017 for Police Officer (S9999U), Jersey City (Certification No. OL170832). In disposing of the certification, Jersey City requested the removal of the appellant’s name from the eligible list on the basis of failure to maintain residency pursuant to N.J.A.C. 4A:4-2.11(c). In In the Matter of Nikko Vrisiotis, Police Officer (S9999U), Jersey City (CSC, decided September 5, 2018), the Civil Service Commission (Commission) upheld the appellant’s removal from the S9999U list. Subsequently, the appellant pursued this matter in the Appellate Division of the Superior Court. On remand from the Appellate Division, the Commission ordered that the appellant’s name be restored to the S9999U list and that “the list be revived in order for the appellant to be considered for appointment at the time of the next certification, for prospective employment opportunities only.” See In the Matter of Nikko Vrisiotis, Police Officer (S9999U), Jersey City (CSC, decided December 4, 2019). A review of the record finds that the next certification on which appellant’s name appears for Police Officer was issued on September 28, 2020 for Police Officer (S9999A),1 Jersey City (Certification No. OL200753). In disposing of OL200753,

1 It is noted that the S9999A list promulgated on May 15, 2020 and replaced the S9999U list which expired on May 1, 2020.

Jersey City requested the removal of the appellant’s name from the eligible list on the basis of failure to respond to the certification notice.

The announcement for the subject examination was issued on October 1, 2021 and was open to employees in the competitive division who had an aggregate of three years of continuous permanent service and were serving in the Police Officer title as of the December 31, 2021 closing date. The Division of Agency Services determined that Vrisiotis was ineligible for this examination as there was no record of his employment in the announced unit scope.

Appellant's argumentOn appeal, Vrisiotis claims, in part, that “in February 2020 I was brought in for an updated application process with the Jersey City Police Department. I was told by the Lieutenant-in-charge of the background unit that I would get my seniority back dat[ed] to January 5, 2018 upon full completion of the Police Academy, which started in July of 2020 and completed in December of 2020.” In support of his appeal, the appellant submits additional documentation including a copy of Personnel Order 85-20 dated July 10, 2020 and signed by Michael J. Kelly, Chief of Police, indicating that “effective Thursday, July 9, 2020, [Nikko G. Vrisiotis] is appointed to the Jersey City Police Department and assigned to the Bergen County Law and Public Safety Institute . . . for training with an appointment date of January 5, 2018”; and an undated Jersey City Police Department Background Unit “Candidate Disposition **Amended**” memorandum from Lieutenant Anthony Musante noting that “candidate was appointed to the Jersey City Police Department with a retroactive appointment date of 01/05/2018.”

It is noted that Jersey City, represented by James B. Johnston, Esq., was contacted regarding this matter and indicated that Vrisiotis’ “actual appointment date with the City of Jersey City (‘City’) is July 9, 2020.” In this regard, Jersey City notes that the Commission in In the Matter of Nikko Vrisiotis, supra, did not order that the appellant “be hired or that his hire date be retroactive.” However, Jersey City indicates that for non-Civil Service purposes, i.e., purposes related to the collective bargaining agreement between the appellant’s labor union and Jersey City and/or for other internal City purposes, his hire date is recorded as January 5, 2018 “to reflect the litigation that pre-existed his appointment.” Jersey City further indicates that the appellant “successfully completed Police Academy training for the J.C.P.D. on or about December 29, 2020. Thus, even taking into consideration his Academy training, Officer Vrisiotis[’] police experience with the City to date merely consists of approximately one (1) year and nine (9) months . . . Officer Vrisiotis simply does not possess the required three (3) years of experience in police activities with the J.C.P.D.”

CONCLUSION

It is noted that the Commission will not address the January 5, 2018 appointment date assigned by Jersey City for internal, non-Civil Service purposes as the Commission does not have jurisdiction to address issues regarding internal policies such as seniority for shift bidding or vacation scheduling. Rather, the Commission will address the appellant’s claim that he should be granted the January 5, 2018 date for Civil Service purposes, which impacts how an employee’s seniority is calculated for purposes of Civil Service administered programs, such as promotional examination eligibility and scoring and the determination of layoff rights.

RuleN.J.A.C. 4A:4-1.10(c) provides that, when a regular appointment has been made, the Commission may order a retroactive appointment date due to administrative error, administrative delay or other good cause. Generally, this unique remedy has been reserved for two particular situations. First, the Commission has granted retroactive permanent appointment dates in circumstances in which an employee was actually serving in and performing the duties of a title, but due to some error or other good cause, his attainment of permanent status was delayed or hindered. The second situation in which an employee may be awarded a retroactive date of permanent appointment is where the name of an employee, whose appointment would have otherwise been mandated, was improperly removed from or bypassed on an eligible list, thereby preventing their appointment. When the Commission subsequently corrects the improper list removal or bypass, the Commission also orders the employee’s appointment and a retroactive permanent appointment commensurate with the date on which others were appointed from the certification of the eligible list. For example, when a veteran eligible is improperly removed from an open competitive list, he or she is entitled to the remedy of a retroactive permanent appointment date because N.J.A.C. 4A:4-4.8(a)3i requires the appointment of veterans in the order of ranking, absent any reason for disqualification. See In the Matter of Neil Layden (MSB, decided March 23, 2005); In the Matter of Ciri Castro, Jon Martin, and Luis Sanchez (MSB, decided January 12, 2005). Since neither of these situations were present in the instant matter, as noted previously, the Commission’s order of December 4, 2019 clearly indicated that Vrisiotis’ name was to be restored to the S9999U list for prospective appointment opportunities only. Furthermore, the appellant has not provided any arguments to demonstrate that he is entitled to the extraordinary remedy of a retroactive date of permanent appointment to the Police Officer title.

AnalysisWith regard to the appellant’s appointment date, for reasons that are not clear from the record, the appellant’s name was not restored to the S9999U list by the time of the next certification subsequent to the Commission’s December 4, 2019 order for Police Officer in Jersey City. In this regard, it is noted that a certification was issued on February 6, 2020 for Police Officer (S9999U), Jersey City (Certification No. OL200140). Had the appellant’s name been restored, based on his rank, his name could have appeared at position 4 on this certification. In addition, in disposing of this certification, Jersey City appointed 17 individuals, the first individual appointed appeared at position 9, all of whom received a regular appointment date of July 9, 2020. Given that Jersey City indicates that the appellant’s “actual appointment date” is July 9, 2020 and given that he could have been appointed from the February 6, 2020 certification, it is appropriate to record his regular appointment date to the Police Officer title in Jersey City as July 9, 2020.

With regard to the appellant’s eligibility for the promotional examination for Police Sergeant (PM4569C), Jersey City, N.J.A.C. 4A:4-2.6(b) provides that in local service, applicants for promotion from entry level law enforcement titles must have three years of continuous permanent service in a title to which the examination is open. Given that the appellant’s appointment date is July 9, 2020, and assuming continuous service from July 9, 2020 through the closing date, the appellant had 1 year, 5 months and 11 days of pertinent experience. Therefore, he did not possess the required three years of continuous permanent status in the title of Police Officer in Jersey City as of the December 31, 2021 closing date.2

ORDER

Therefore, it is ordered that the appellant’s regular appointment date to the Police Officer title in Jersey City be recorded as effective July 9, 2020 and that the remainder of this appeal be denied.

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

2 Even assuming arguendo that the appellant received a January 5, 2018 retroactive appointment date for Civil Service purposes, it is noted that an employee must actually serve in and perform the duties of the title to which the examination is open during the requisite time in grade in order to establish eligibility. See In the Matter of Daniel O. Erickson (MSB, decided January 11, 2006); In the Matter of Albert Giordano (MSB, decided January 26, 2005); In the Matters of David J. Barrett, et al. (MSB, decided November 19, 2003) (Individuals who received retroactive appointment dates to the Fire Lieutenant and Fire Captain titles solely on equitable considerations but who did not meet the time- in-grade service requirements as of the closing date of the announcement were not entitled to sit for the examinations for Fire Captain and Deputy Fire Chief).