Reallocation of Judiciary Clerk 1, CSC Docket No. 2022-1575

BackgroundThe Superior Court of New Jersey, Appellate Division, has remanded the Civil Service Commission’s (Commission) decision of to reallocate the Judiciary Clerk 1, Judiciary Clerk 2, Judiciary Account Clerk 1, Court Services Representatives, and their associated bilingual variants, and Judiciary Clerk Driver titles to the non-competitive division of the career service on an interim basis instead of a permanent basis for reconsideration. See In the Matter of Reallocation of Judiciary Clerk 1, Judiciary Clerk 2, Judiciary Account Clerk 1, Court Services Representatives, and Judiciary Clerk Driver from the Competitive to the Non- Competitive Division of the Career Service, Docket No. A-5248-18 (App. Div. January 11, 2022). The Court did not retain jurisdiction. Copies of the Appellate Division’s decision and the Commission’s May 22, 2019 decision are attached.

The background of this matter is thoroughly discussed in the attached Commission decision (Judiciary Titles Reallocation). In that matter, the Administrative Office of the Courts (AOC) requested that the subject titles be permanently reallocated to the non-competitive division of the career service due to the length of the certifications, the lists becoming stale, and the lists quickly exhausting, resulting in the Judiciary either going without staff for long periods or making provisional appointments. The Division of Agency Services (Agency Services) reviewed the request and noted that the titles are entry-level titles and do not have any minimum requirements for education and experience, and that the duties of the titles are basic and elementary requiring skills best assessed by direct observation during the working test period. Agency Services also found that the ranked eligible lists that have been issued for these titles have not or are not likely to meet the needs of the appointing authority due to such factors as salary, geographic locations, recruitment problems, and working conditions. Therefore,

Agency Services recommended reallocation of the subject titles to the non- competitive division. Upon its review, the Commission observed this agency has been able to consistently test for the possession of these basic skills in competitive situations and acknowledged that ranked eligible lists and certifications, on some occasions, may not have met the needs the appointing authority. However, the Commission was reluctant to permanently reallocate these titles to the noncompetitive division without first attempting to administratively address the issues raised by AOC to ensure that the State constitutional mandate to competitively test to fill positions in the public service have been exhausted. Accordingly, the Commission reallocated the subject titles to the noncompetitive division an interim basis from May 25, 2019 to the date when new eligible lists were promulgated for these titles, but until no later than May 24, 2020. Due to inconsistencies between the subject appeal and three other Commission decisions regarding permanent reallocation of lower-level job titles to the noncompetitive division, the Court remanded the matter to the Commission to issue a final agency decision explaining why the factors and principles it applied in its other decisions allowing for reallocation did not apply in this case, or, in its discretion, to reach a different conclusion on remand.

The AOC and the Judiciary Council of Affiliated Unions (JCAU)1 were provided the opportunity to submit additional arguments for the Commission to consider in this remand.

The AOC, represented Edwin F. Chociey, Jr., Esq, presents the interim designation of the subject titles was inconsistent with prior decisions where the Commission routinely granted requests to permanently reallocate various titles to the noncompetitive division that require no experience or license, or that may require a license. In In the Matter of Payroll Clerk (CSC, decided September 1, 2021), the AOC emphasizes that the Commission determined that since Payroll Clerk was an entry-level title that does not have any experience requirements, there was no skill set to be tested and incumbents would gain the required skill set during on-the-job training were the bases when it permanently reallocated the Payroll Clerk to the noncompetitive division. Similarly, in In the Matter of Reallocation of Local Government Titles from the Competitive to the Non- Competitive Division of the Career Service (CSC decided July 30, 2014), the Commission reallocated multiple entry-level titles to the noncompetitive division that had no specific experience requirements but required education and/or appropriate certifications. In In the Matter of Reallocation of Security Guard and Security Guard Bilingual in Spanish and English (CSC, decided December 3, 2014) the Commission reallocated those titles based on the lack of education, experience and license requirement which rendered competitive testing impractical. The AOC further submits that in In the Matter of Reallocation of State, Local, and Common Titles from the Competitive to the Non-Competitive Division of the Career Service, Phase 3 (CSC decided February 6, 2013), the Commission observed that competitive testing was not practicable for a number of titles without education or experience requirement or that they posed significant recruitment issued due to high turnover rates. The AOC posits that the Commission essentially relied on two criteria in making its determinations to reallocate these titles: 1) an education requirement of a high school diploma or less, with no experience and no license requirement, and 2) positions that did not have an education or experience requirement that may require a specific government issued license. Accordingly, the AOC states that to be consistent with the above noted determinations, the Commission should reallocate the subject titles in this matter as none have an education or experience requirement.

1 The JCAU is comprised of five unions, sharing representation responsibilities of Support Staff unit employees based on their appointing authority and title. The five unions making up the JCAU are: AFSCME, CWA, IFPTE, OPEIU, and Teamsters.

The AOC also presents that since it submitted the original reallocation request in November 2016, candidate pools for the Judiciary Clerk 2 (JC2) titles have been shrinking in both number and quality. As a result, in January 2022, it conducted a survey of its vicinages for vacancies in the JC2 titles which found that a number of “lists”2 for certain vicinages had been exhausted. It also provides a listing by county of the number of eligibles certified for appointment consideration, the number who responded by mail as interested, the number who failed the appointing authority administered typing test, the number who were appointed from the list by other vicinages, and an indication if vacancies still existed or are anticipated and if the remaining number of eligibles would result in an incomplete certification. The AOC also notes that some vicinages, such as Bergen and Hudson, have had to put filling JC2 positions on hold from mid-summer 2021 due to their inability to fill them via eligible lists. Further, it states that the number of JC2 eligibles on certifications are essentially a moving target, as some eligibles from the list choose multiple geographic areas to which their names can be certified. The AOC recognizes that eligibles may be able to be certified to some vicinages, but average fewer than 10 candidates. Additionally, the AOC underscores that the vicinages that have returned certifications still have additional JC2 positions to fill. Given that the next open competitive examination for JC2 is tentatively planned for April or May 2022, and the time it will take to score the test and issue eligible lists, there is still no ability in the near term for vicinages with vacancies to permanently fill those positions. Therefore, the AOC maintains that the subject titles should be permanently reallocated to the noncompetitive division.

2 It should be noted that there is only a single eligible list for JC2 and that is utilized statewide to fill positions in all the vicinages. The AOC appears to be equating certification of names issued from the single eligible list as individual eligible lists specific to each vicinage. This is incorrect. Rather, the certifications issued to the vicinages contain the names of only those eligibles from the list who indicated on their application to take the test that they would like to have their name certified to specific geographic areas. Thus, for example, if only 10 individuals on a list of 50 eligibles indicate that they want their name certified to positions in Cumberland County, the other 40 eligibles on the list will not be certified to Cumberland County for the life of the list. Stated differently, the AOC appears to mean that no more names are on the eligible list of individuals whose names could be certified to certain vicinages, but that does not mean the eligible list is exhausted. It only means it is exhausted of individuals whose names could be certified to a specific vicinage.

The JCAU, represented by David Beckett, Esq., and Adam Liebtag, President, CWA Local 1036, present that the Commission’s decision to reallocate the subject titles on an interim basis was reasonable and consistent with the record it was presented. In this regard, the determination was the product of an administrative review of the titles at issue under the procedures described in N.J.A.C. 4A:3-1.2 and should be afforded deference. Moreover, while the Commission recognized possible issues with the certification of eligible list, it does not require that it permanently reallocate the titles. The JCAU notes that the AOC did not submit any proof about delays in the certification process or how the alleged delays hurt its recruitment efforts. Rather, the AOC states that it believes the length of time creates a recruitment problem. The JCAU maintains that the Commission properly concluded that competitive testing for the subject titles was practicable and has produced eligible lists for the titles that test the competencies set forth in the job specifications. Significantly, the JCAU observes that this agency, not any appointing authority, initiated the reallocations of the titles noted by the decisions cited by the AOC. Therefore, the JCAU maintains that the AOC’s submissions fail to meet any of the criteria established in N.J.A.C. 4A:3-1.2 to reallocate the subject titles and in other cases any concerns regarding delayed eligible lists have been cured by the Commission granting short-term interim noncompetitive status.

CONCLUSION

RuleN.J.A.C. 4A:3-1.2 provides, in part, that the Commission may reallocate titles from the competitive to the non-competitive division when competitive testing is not practicable due to the nature of the knowledge, skills, and abilities associated with the job or when certification procedures based on ranked eligible lists have not or are not likely to meet the needs of appointing authorities due to such factors as salary, geographic location, recruitment problems and working conditions.

N.J.A.C. 4A:3-1.2(c) provides that a job title may be placed in the noncompetitive division on an ongoing or interim basis when it is determined that it is appropriate to make permanent appointments to the title, and that one or more of the following criteria are met:

1. Competitive testing is not practicable due to the nature of the knowledge, skills and abilities associated with the job;

Analysis2. Certification procedures based on ranked eligible lists have not or are not likely to meet the needs of appointing authorities due to such factors as salary, geographic location, recruitment problems and working conditions; or

3. There is a need for immediate appointments arising from a new legislative program or major agency reorganization.

Initially, the Court cited the Commission’s decisions Local Government Titles, supra,, and Payroll Clerk and Security Guard & Security Guard, Bilingual, supra, and requested an explanation as to why the factors and principles it applied in those decisions allowing for reallocation did not apply in this case. In order to do this, it is necessary to understand the basic framework of the State Classification Plan. As the Court emphasized in Reallocation of Judiciary Clerk 1, Judiciary Clerk 2, Judiciary Account Clerk 1, Court Services Representatives, and Judiciary Clerk Driver from the Competitive to the Non-Competitive Division of the Career Service, supra., regarding how subject titles are grouped in bands on the single job specification, “the closest in-use term is ‘title series,’ meaning ‘titles involving the same kind of work and ranked according to level of difficulty and responsibility.” Generally, the nomenclature used by the Commission to describe the title at the lowest level of difficulty and responsibility in the series is “entry-level title.” The higher titles in the series are referred to as “the next above entry-level” or the “above entry-level” titles in the series. Additionally, there are single, standalone titles in the State Classification Plan that do not have higher levels, and thus, they are not part of a title series. However, just because an entry level title exists that does not have any minimum experience requirements, it does not necessarily mean it should not be tested and thus, be allocated to the competitive division. Additionally, titles are categorized as either professional (requiring a Bachelor’s degree), para-professional (requiring completion of 60 college credits or 12 or more specific credits) or non-professional (which require less than 60 college credits or less than 12 specific college credits). Further, some titles in the State Classification Plan can only be used by State executive branch agencies under the jurisdiction of the Commission or only for the use by the Judiciary. See N.J.S.A. 2B:11-5(a). Significantly, some titles can only be used by local government entities that are under the jurisdiction of the Commission. In this regard, there are 20 of the State’s 21 counties and more than 350 municipalities utilizing these “local” titles.

The distinction between the Commission’s decision in Local Government Titles, supra, and the instant matter are significant. Initially, the 22 titles that were reallocated were exclusively structured for use by local government entities whereas the titles at issue in the instant matter are for the exclusive use by the State’s Judiciary branch. Moreover, the Judiciary titles at issue are all non- professional titles, as they all require possession of less than 60 college credits or less than 12 specific college credits. Conversely, all of the titles that were reallocated in Local Government Titles, supra, are professional titles, which require possession of a Bachelor’s degree, a Bachelor’s degree in a specific major, and/or possession of specialized license or certificate.

For example, one of the local use titles reallocated in Local Government Titles, supra, was Architectural Assistant. The local service Architectural title series consists of two titles, the entry-level Architectural Assistant title and the Architect title. The minimum requirements are a Bachelor’s degree in Architecture. 3 The title is essentially the local service equivalent of a State trainee title because it is the entry-level title to the series that can provide the incumbent with the necessary experience needed ultimately to be able to obtain the required license as an Architect which is needed to establish eligibility for the higher-level title in the series, Architect. Moreover, competitive testing was not practicable for Architectural Assistant for a number of reasons. First, prior to its reallocation to the non-competitive division, as this is an entry-level title, in accordance with established testing principles, any test developed for Architectural Assistant could only test knowledge, skills, and abilities (KSAs) that potential candidates can bring to the job. Additionally, prior to its reallocation in August 2014, out of more than 350 local jurisdictions who could use the title, this agency had only announced three examinations for Architectural Assistant since 2006. Two of those examinations, ironically for the same county, were conducted as qualifying unassembled examinations since only one applicant had applied for the test. A qualifying unassembled examination is generally utilized when all candidates meet the requirements for the title but, based on the size of the pool of eligibles, any resultant list would be incomplete. An incomplete eligible list means the examination situation was not competitive because this agency cannot provide an appointing authority with an eligible list of at least three names for permanent appointment consideration as required by N.J.S.A. 11A:4-8. When a qualifying unassembled examination is utilized as the test mode, the admitted candidates are simply assigned a base passing score because they meet the open competitive requirements. Therefore, testing was not practicable for Architectural Assistant because possession of the required Bachelor’s degree demonstrates that those possessing the degree have already successfully demonstrated proficiency in the required KSAs for the entry level position, the minimal use of the title across all Civil Service local jurisdictions, and this agency’s inability to provide those appointing authorities that wanted to utilize the title a complete list essentially results in a non-competitive situation.

Conversely, in accordance with N.J.A.C. 4A:1-1.3, the Judiciary Clerk title series (and its bilingual variant) consists of four titles: Judiciary Clerk 1, Judiciary Clerk 2, Judiciary Clerk 3, and Judiciary Clerk 4. The title that has the lowest level of difficulty and responsibility in the series, as evidenced by the job specification, is

3 Many professional titles have substitution clauses for the required education. The Architectural Assistant title permits possession of a valid license or certificate as a Registered Architect issued by the New Jersey Board of Registered Architects as a substitute for the Bachelor’s degree in Architecture. This is not intended to transform the duties and responsibilities of the title to a higher level in the series. Rather, it is the recognition of the equivalency of certain licensures or certifications to the minimum education requirements and it makes little sense to exclude those who possess this credential with the opportunity for entry into public service.

Judiciary Clerk 1. The Judiciary Clerk title series is non-professional as it requires less than 60 college credits or less than 12 specialized college credits. Moreover, the job specification lists a number of required competencies for each level of the title series, specifically noting that the competencies are cumulative in nature and “lower level competencies are prerequisite to higher levels.” As such, Judiciary Clerk 1 is the entry level title into the Judiciary Clerk title series. Significantly, in the Minimum Requirement section of the job specification, the only requirement for Judiciary Clerk 1 is the ability to use a keyboard with no minimum speed. However, for Judiciary Clerk 2, Judiciary Clerk 3, and Judiciary Clerk 4, each of those titles require an ability to type a minimum of 25 net words per minute. Additionally, the Judiciary Clerk 3 and the Judiciary Clerk 4 titles require either one or three years of specific experience. Stated differently, Judiciary Clerk 2 is not an entry-level title because it does not have the lowest level of difficulty and responsibility in the title series, and it has specific minimum requirements to establish eligibility, i.e. the ability to type a minimum of 25 net words per minute. Rather, it is the next above entry-level title in the Judiciary Clerk series. As noted earlier, all of the titles reallocated in Local Government Titles, supra, were entry level professional titles that were not practicable to test because the required education demonstrated successful testing of the required KSAs to bring to the position and the eligible lists provided by this agency were often non-competitive as evidenced by the inability of this agency to consistently provide complete eligible lists for the reallocated titles to local appointing authorities. Moreover, this agency has consistently provided complete eligible lists for the above entry-level title of Judiciary Clerk 2 as indicated by the below chart.

SYMBOL TITLE # OF EXPIRATION # ELIGIBLES

ELIGIBLES DATE REMAINING ON

LIST S0387A JUDICIARY 253 AUGUST 21, 25

CLERK 2 2022 S0591A JUDICIARY 84 JANUARY 29, 14

CLERK 2 2023 S0978A JUDICIARY 75 AUGUST 4, 23

CLERK 2 2024 S0116B JUDICIARY 72 AUGUST 4, 37

CLERK 2 2024

Moreover, an open competitive examination for Judiciary Clerk 2 was announced with a closing date of October 21, 2021, and 176 applicants applied for the examination that is anticipated to be conducted in the spring of 2022. When announced, all of the professional titles reallocated in Local Government Titles, supra., resulted in minimal applicants filing for the examination that often resulted in eligible lists that were not competitive. The above entry-level Judiciary Clerk 2 announcements, as noted above, result in numerous interested applicants applying for the test. Further, there are eligibles remaining on each of the existing lists and a pending examination to address the needs of vicinages that have exhausted candidates interested in the specific geographic area. Therefore, the issue concerning Judiciary Clerk 2 is significantly different than those titles reallocated in Local Government, supra.

The Court also requested an explanation of why the factors and principles applied Payroll Clerk, supra, did not apply in this case. The State service Payroll Clerk title series consists of four titles: The entry-level title Payroll Clerk, Senior Payroll Clerk, Principal Payroll Clerk, and Supervising Payroll Clerk. There are no minimum requirements for Payroll Clerk as it is an entry-level non-professional title. Prior to the Commission’s reallocation of Payroll Clerk in 2021, this agency had announced three examinations for the title since July 2014. Only one applicant applied for one of the examinations and the other two announcements only had two individuals apply for each test. As the pool of eligibles could not result in a complete list, the test mode utilized was a qualifying unassembled examination and each candidate received the same passing score. The examination process is not practicable for this title because requiring an individual to file for an examination with this agency when it has historically been unable to produce a complete list for the title will result in all admitted candidates who meet the requirements, being equally reachable for appointment consideration in accordance with the Rule of Three. In other words, testing would not usefully differentiate the candidates for merit or fitness since all would be eligible for appointment consideration. As noted earlier, the above entry-level title Judiciary Clerk 2 has consistently resulted in numerous applicants and complete lists.

With respect to Security Guard & Security Guard, Bilingual, supra, the Security Guard title series consists of three titles and their bilingual variant: the entry-level Security Guard title, Senior Security Guard, Supervising Security Guard, and Chief Security Guard. The entry-level Security Guard title has no minimum requirements. Based on its review of the job specification and the title’s KSAs, Agency Services determined that it was not practicable to test the KSAs that potential candidates bring to the job. Conversely, in accordance with the minimum requirements stated on the job specification, Judiciary Clerk 2 requires the ability to type a minimum of 25 net words a minute. However, the Judiciary Clerk 1 title is the lowest in the Judiciary Clerk title series, and is thus, the entry level title. Moreover, Court Services Representative and Judiciary Clerk Driver are standalone titles not in a series. Additionally, as entry-level non-professional titles there is essentially no appreciable requirements for these titles. Further, the Judiciary Clerk Driver only requires an appointee to have a valid New Jersey Driver’s license. Therefore, consistent with other entry-level non-professional clerical titles used in

State service, Judiciary Clerk 1, Court Services Representative, and Judiciary Clerk Driver should be reallocated to the non-competitive division.

With respect to Judiciary Account Clerk 1, the comparable title series used in State Executive branch service is Audit Account Clerk. While Agency Services recommended that the local service entry-level Account Clerk title should be reallocated, it did not recommend that the entry-level State Audit Account Clerk title be reallocated as it was practicable to test the KSAs. Therefore, consistent with other State Account Clerk titles, this title shall remain the in the competitive division. Regarding Judiciary Clerk 2, as exhaustively explained, this is not the entry-level title to the non-professional Judiciary Clerk title series. Further, a review of the State Classification Plan finds all “next above entry-level” non- professional clerical titles are allocated to the competitive division. Moreover, competitive testing has been practicable as evidenced by the numerous complete eligible lists that have been promulgated by this agency. Additionally, announcements are issued for Judiciary Clerk 2 on a schedule to ensure complete lists are available to those vicinages that exhaust the names of those candidates who indicated interest to be certified to a particular area. Accordingly, Judiciary Clerk 2 does not meet the criteria to be reallocated to the non-competitive division.

Based on all the foregoing, there is a sufficient basis on which to reallocate Judiciary Clerk 1, Court Services Representative, Judiciary Clerk Driver, and their bilingual variants to the non-competitive division of the career service on a permanent basis. However, there is not a sufficient basis on which to reallocate the Judiciary Account Clerk 1 and the Judiciary Clerk 2 titles and their bilingual variants to the non-competitive division. Nevertheless, the Judiciary is not precluded from promoting any individual it appoints from the non-competitive titles of Judiciary Clerk 1, Court Services Representative, and Judiciary Clerk Driver to the higher in-series or out of series titles under its normal promotional procedures.

ORDER

Therefore, it is ordered that the Judiciary Clerk 1, Court Services Representative, Judiciary Clerk Driver, and their bilingual variants be reallocated to the non-competitive division of the career service on a permanent basis. It is further ordered that such action be effective the first pay period after the date of the Commission’s decision. However, there is not a sufficient basis on which to reallocate the Judiciary Account Clerk 1 and the Judiciary Clerk 2 titles and their bilingual variants to the non-competitive division.

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