Accountant (M0522B), CSC Docket No. 2023-1612

BackgroundJersey City Public Library requests permission not to make an appointment from the July 11, 2022 certification for Accountant (M0522B), Jersey City Public Library.

The record reveals that Jersey City Public Library provisionally appointed Padmini Validum, pending open competitive examination procedures, to the subject title effective April 1, 2019. An examination was announced with a closing date of July 21, 2020, that resulted in a list of six eligibles promulgating on July 7, 2022 and expiring on July 6, 2025. Validum was found ineligible for the subject examination. Validum was subsequently separated from her provisional position when she was appointed to the noncompetitive title of Assistant Budget Examiner effective February 9, 2023. Additionally, there are currently no employees serving provisionally pending open competitive examination procedures in the subject title with the appointing authority.

The appointing authority returned the subject certification and requested a waiver of the appointment requirement, stating that the appointment to the position of Accountant was in error. It explained that the Jersey City Public Library Business Office consists of the Director of Finance, Budget Officer, and Account Clerk. The previous incumbent, Howard Gilman, held the title of Budget Officer.1 Due to financial constraints, the position of Assistant Budget Examiner now best suits the needs of the Jersey City Public Library and the examination announcement should have been processed as such. Moreover, the appointing authority verified that Validum has been appointed to the Assistant Budget Examiner title.

1 It is noted that agency records indicate that Gilman resigned effective February 5, 2018.

The appointing authority’s request for an appointment waiver was acknowledged, and it was advised that if its request were granted, it could be assessed for the costs of the selection process in the amount of $2,048. Despite the opportunity, the appointing authority did not provide any additional information for the Civil Service Commission (Commission) to review.

CONCLUSION

Initially, in examining the legislative history of N.J.S.A. 11A:4-5, in Local 198 of I.A.F.F. v. Atlantic City, Docket No. A-855-88T1F (App. Div. June 14, 1989), the court stated that this agency is required to issue a certification automatically where there is a provisional appointee or a vacancy. Moreover, the court concluded that N.J.S.A. 11A:4-5 unambiguously stated that once the examination process has been initiated due to the appointment of a provisional employee, the appointing authority must make an appointment from the eligible list if there is a complete certification. Additionally, the court found that this agency was correct in interpreting N.J.S.A. 11A:4-5 to find that it was a clear legislative response to pervasive violations of Title 11A, and that non-compliance with this statute is not a mere technical violation, but rather it undermined the purpose and intent of the constitutionally-based merit selection system. The court found that in circumstances such as these, it was appropriate to order the appointing authority to make an appointment. Thus, there is no doubt that the appointing authority must make an appointment from this list if there is a complete certification, that is, one containing the names of at least three interested and eligible candidates. Moreover, the Commission is specifically given the power to assess compliance costs and fines against an appointing authority, including all administrative costs and charges, as well as fines of not more than $10,000, for noncompliance or violation of Civil Service law or rules or any order of the Commission. N.J.S.A. 11A:10-3; N.J.A.C. 4A:10-2.1(a)2. See In the Matter of Fiscal Analyst (M1351H), Jersey City, Docket No. A-4347-87T3 (App. Div. February 2, 1989).

Therefore, in accordance with N.J.S.A. 11A:4-5, once the examination process has been initiated due to the appointment of a provisional employee or due to an appointing authority’s request to fill a vacancy, the appointing authority must make an appointment from the resulting eligible list if there are three or more interested and eligible candidates. The only exception to this mandate may be made for a valid reason such as fiscal constraints.

In the instant matter, the examination for the subject title was generated as a result of the provisional appointment of Validum. After a complete certification was issued, the appointing authority later requested an appointment waiver, explaining that the Jersey City Public Library Business Office consists of the Director of Finance, Budget Officer, and Account Clerk. The previous incumbent held the title of Budget

Officer. Due to financial constraints, the position of Assistant Budget Examiner now best suits the needs of the Jersey City Public Library and Validum has been appointed to that title. Thus, in conjunction with the fact that there are no provisionals currently serving, there is a sufficient justification for an appointment waiver.

Although an appointment waiver is granted in this matter, both N.J.S.A. 11A:4-5 and N.J.A.C. 4A:10-2.2(a)2 state that if an appointing authority receives permission not to make an appointment, it can be ordered to reimburse for the costs of the selection process. While administering examinations and providing the names of eligible job candidates to the jurisdictions under the Civil Service system are two of the primary activities of this agency, these costly efforts are thwarted when appointing authorities fail to utilize the resulting eligible lists to make appointments and candidates have needlessly expended their time, efforts and money to take these examinations in hopes of being considered for a permanent appointment. In this case, the appointing authority maintains that it appointed Validum to the subject title in error. However, the appointing authority did not take any action to obviate the need for the examination at the time of the announcement or prior to its processing. Rather, it requested a waiver of the appointment requirement only after Validum was found ineligible for the subject examination and after a certification was issued against her provisional position. Under these circumstances, there is not a basis on which to waive the selection costs. Therefore, although a waiver is granted, it is appropriate that the appointing authority be assessed $2,048 for the costs of the selection process.

ORDER

Therefore, it is ordered that a waiver of the appointment requirement be granted. Additionally, the Commission orders that the appointing authority be assessed for the costs of the selection process in the amount of $2,048 to be paid within 30 days of the issuance of this order.

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