Omar Diaz et al., CSC Docket No. 2022-388

BackgroundThe Division of Agency Services (Agency Services), on behalf of the City of Newark (the City), requests retroactive regular appointments for various employees to the titles of Police Captain, Police Lieutenant, and Police Sergeant.

Appellant's argumentIn its request, the appointing authority presents that all of the officers listed on “Attachment A” have been serving in their respective titles since the requested retroactive appointment dates. By way of background, the Newark Police Superior Officer’s Association (SOA) protested that the City had various personnel working in “acting” assignments, resulting in certifications for Police Captain, Police Lieutenant, and Police Sergeant in order to make regular appointments. The City explained that the Covid-19 pandemic presented challenges which resulted in a delay of recording appointments as they occurred, and subsequently requested retroactive appointments for three Police Captain candidates, twelve Police Lieutenants, and 27 Police Sergeants. Agency Services has reviewed these requests and found that all the concerned individuals were reachable for appointment on the requested retroactive effective dates. Therefore, Agency Services supports this request.

BackgroundAccording to agency records, the Police Captain (PM1345U) eligible list promulgated on April 6, 2017 and expired on April 5, 2021. A certification of the eligible list was issued on September 25, 2020 and returned February 1, 2021, with three appointments, effective September 25, 2020, and one eligible, a non-veteran, was removed. Each of the three eligibles who were appointed were reachable for appointment effective July 20, 2020 had the City requested a certification in a timely manner.

The Police Lieutenant (PM2013W) eligible list promulgated on March 14, 2019 and expires on March 13, 2022. A certification of this eligible list was issued on August 24, 2020, and 21 Police Lieutenants were appointed, with an effective date of August 24, 2020. Agency Services requested and received “Authorization to Appoint Lower-Ranked Eligible” (sign-off waiver) forms from higher-ranked eligible candidates to record the consent of those that were not appointed or that would have been bypassed within the rule of three. Each of the 13 “acting” Police Lieutenants would have been reachable for permanent appointment on their respective dates had the City requested certifications in a timely manner.

The Police Sergeant (PM2540W) eligible list promulgated on November 21, 2019 and expires on November 20, 2022. A certification of this eligible list was issued on August 24, 2020, and thirty Police Sergeants listed were appointed with an effective date of August 24, 2020. Each of the 27 “acting” Police Sergeants would have been reachable for permanent appointment on their respective dates had the City requested certifications in a timely manner.

RuleN.J.A.C. 4A:4-1.10(c) provides that when a regular appointment has been made, a retroactive appointment date may be awarded due to an administrative error, administrative delay or other good cause, on notice to the affected parties. N.J.A.C. 4A:4-3.3(b) provides, in pertinent part, that promotional lists shall be promulgated for three years from the date of their establishment.

N.J.A.C. 4A:4-3.4(a) provides that the Commission may revive an expired eligible list to implement a court order in a suit filed prior to the expiration of the list; to implement an order of the Civil Service Commission in an appeal or proceeding instituted during the life of the list; to correct an administrative error; to effect the appointment of an eligible whose working test period was terminated by a layoff; or other good cause. N.J.A.C. 4A:4-1.10(c) provides that the Commission may order a retroactive appointment date for good cause.

CONCLUSION

In the instant matter, there is no basic factual dispute but, rather, the central issue involves an administrative error, wherein the appointing authority failed to request certifications in order to properly effectuate these appointments at the time they were made. The record establishes that all individuals have been performing the duties of their promotional positions since the requested retroactive dates. Thus, Agency Services supports the appointing authority’s request to grant retroactive dates of permanent appointment as listed in Attachment A. As such, good cause exists to revive the Police Captain (PM1345U) promotional list and provide each individual a regular appointment retroactive respectively as listed. Moreover, since the appointing authority believes that they had permanently appointed these individuals, they should be considered to have successfully completed their working test periods. Lastly, the appointing authority is cautioned to request a certification of eligibles for every appointment.

ORDER

Therefore, it is ordered that the request be granted, and the individuals listed in Attachment A be provided with regular appointments, effective as listed. Their personnel records should be amended in accordance with this decision.

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