Douglas Tamase, CSC Docket No. 2022-797, 2022-856

Appellant's argumentDouglas Tamase, a former Crew Supervisor Building Maintenance Programs with East Jersey State Prison (EJSP), Department of Corrections (DOC), requests, among other relief, that the regular reemployment list for Crew Supervisor Building Maintenance Programs be extended. These matters have been consolidated herein.

BackgroundAs background, the appellant was employed at EJSP as a Crew Supervisor Building Maintenance Programs and separated from employment on November 23, 2018. He was placed on a regular reemployment list for Crew Supervisor Building Maintenance Programs, effective October 26, 2020. The list expired on November 22, 2021.

Appellant's argumentOn appeal, the appellant requests that the regular reemployment list be extended. He asserts that the COVID-19 pandemic shut down normal operations at State agencies and halted the hiring of new employees. He argues that normalcy is starting to return and that he would like a “fair opportunity” to regain employment from the list. The appellant also questions why his eligibility for a list extension should solely be up to the appointing authority.

In addition, the appellant references vacancy posting 276-21, issued July 30, 2021, for the title of Crew Supervisor, Building Maintenance Programs and takes issue with EJSP’s decision not to consider him for the posting, which contradicts advice he received from staff of this agency to file for it. He notes that EJSP advised that the posting was “opened as a promotional opportunity to state employees with permanent status in a competitive title.” He notes that he was on a regular reemployment list for the title of Crew Supervisor, Building Maintenance Programs and argues that all eligible lists must be exhausted before any provisional appointments can be made, such as the provisional promotions mentioned by EJSP. Further, the appellant questions how it can be the case that this agency does not monitor or review any part of the vacancy posting process. He asserts generally that the lack of such monitoring or review jeopardizes equal employment opportunity.

Though provided with the opportunity to do so, the appointing authority did not submit any arguments or documentation for the Commission’s review.

BackgroundAgency records indicate that effective February 12, 2022, one individual was appointed provisionally, pending promotional examination procedures, in the title of Crew Supervisor, Building Maintenance Programs with DOC.

CONCLUSION

RuleN.J.S.A. 11A:4-9 provides that a regular reemployment list “include[s] former permanent employees who resigned in good standing and whose reemployment is certified by the appointing authority as in the best interest of the service.” N.J.A.C. 4A:4-1.5(a) provides, in pertinent part, that a provisional appointment may be made only when there is no complete list of eligibles. Pursuant to N.J.A.C. 4A:4-4.2(c)1, a regular reemployment list that contains the name of one interested eligible is a complete list. N.J.A.C. 4A:4-3.7(a) provides, in pertinent part, that when there is more than one current eligible list for a title, a promotional list has priority over a regular reemployment list.

AnalysisAt the outset, a request for an extension of an eligible list generally originates with the appointing authority since only it can determine whether operational and staffing needs are best addressed by such an extension. Thus, absent some particularly compelling ground, this agency will not act to extend an eligible list without the support of the appointing authority. See, e.g., In the Matter of Thomas Bucca and John Rogalski (MSB, decided May 23, 2000); In the Matter of Police Sergeant (PM3484G), Union City (MSB, decided April 18, 1989). Here, there is no evidence of such support. The lack of support is particularly salient where a regular reemployment list is involved. In this regard, it bears emphasizing that a regular reemployment list “include[s] former permanent employees who resigned in good standing and whose reemployment is certified by the appointing authority as in the best interest of the service.” See N.J.S.A. 11A:4-9c (emphasis added). Thus, there is no good cause to extend the regular reemployment list in the absence of appointing authority support. Although the appellant argues that State agencies halted new employee hiring as a result of the pandemic and he would like a “fair opportunity” to regain employment from the list now that normalcy is returning, this does not provide a compelling ground to extend the list. In this regard, it must be noted that individuals whose names merely appear on an eligible list do not have a vested right to appointment. See In re Crowley, 193 N.J. Super. 197 (App. Div. 1984); Schroder v. Kiss, 74 N.J. Super. 229 (App. Div. 1962).

Next, the Commission notes that it will not address the appellant’s complaint that EJSP did not consider him for the vacancy posting. In this regard, as the Commission has affirmed in numerous decisions, vacancy postings are initiated by the appointing authority, and they are not monitored by this agency. Such postings are used by the appointing authority to generate a list of interested individuals to fill vacant positions. However, if a provisional appointment, pending promotional examination procedures, results from the posting, the appointing authority then must adhere to Civil Service rules and procedures regarding provisional appointments and promotional examination announcements. See, e.g., In the Matter of Sarah J. Seigel (MSB, decided January 11, 2000). The Commission does have jurisdiction to ensure that the appointing authority is adhering to those rules and procedures. In this case, the appointing authority is in compliance. It made one provisional appointment, pending promotional examination procedures, effective February 12, 2022, which is well after the regular reemployment list expired. Thus, the Commission has no occasion to consider under what circumstances the appellant might have been entitled to be appointed from the regular reemployment list. And the appellant certainly had no vested right to receive a provisional appointment, notwithstanding any advice he may have received from staff of this agency to respond to the vacancy posting. See O’Malley v. Department of Energy and Department of Civil Service, 109 N.J. 309 (1987).

The Commission also observes that appointing authorities have the discretion to fill vacancies though promotional examination procedures despite an existing regular reemployment list. In this regard, N.J.A.C. 4A:4-3.7(a) merely sets forth the priority of eligible lists when more than one currently exists for the same title; it does not prohibit the creation of a new one.

Finally, the appellant’s generalized contention that equal employment opportunity is being jeopardized because this agency does not monitor vacancy postings is unavailing because it overlooks established channels for addressing such concerns. See N.J.A.C. 4A:7-3.2 (providing procedures for reporting complaints alleging violations of the New Jersey State Policy Prohibiting Discrimination in the Workplace) and N.J.A.C. 4A:7-3.2(p)1 (noting that complaints may also be filed with the New Jersey Department of Law and Public Safety’s Division on Civil Rights and the U.S. Equal Employment Opportunity Commission).

ORDER

Therefore, it is ordered that these appeals be denied.

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