Nuno Lopes, CSC Docket No. 2024-1767

BackgroundUnion Township (Union) requests that Nuno Lopes be assigned a retroactive appointment date to the Police Lieutenant title and seeks his eligibility for the promotional examination for Police Captain (PM3809F), Union Township.

By way of background, the eligible list for Police Lieutenant (PM4184C), Union Township, which promulgated on April 21, 2022 and is set to expire on April 20, 2025, contains the names of 13 eligibles. It is noted that Lopes appears at rank 7. The first certification of the PM4184C eligible list was issued on December 14, 2022 (Certification No. PL221767) and contained the names of the first six eligibles. In disposing of Certification No. PL221767, Union appointed the eligibles appearing at ranks 1 through 5 effective June 29, 2022, and the eligible appearing at rank 6 effective December 21, 2022.1 The second certification of the PM4184C eligible list was issued on January 31, 2024 (Certification No. PL240178) and contained the names of the eligibles appearing at ranks 7 through 12. In disposing of PL240178, Union appointed Lopes effective February 7, 2024 and the eligibles appearing at ranks 8 and 9 effective February 15, 2024.

1 In a separate matter, by letter dated June 7, 2023, Union explained, in part, that once it received budget approval in 2022 to make promotions to Police Lieutenant, it believed it had submitted a certification request at that time and the first five eligibles on the list began working as Lieutenants effective June 29, 2022. However, due to a misunderstanding, Union did not submit the request and had to wait until PL221767 was issued to appoint those individuals. Given that during the certification disposition process, effective dates of appointment cannot be given prior to the certification date, these individuals initially received December 14, 2022 appointment dates. However, based on the information provided by Union, the record was corrected to reflect a June 29, 2022 effective date of appointment for the eligibles appearing at ranks 1 through 5.

Appellant's argumentIn its request, Union indicates that Lopes was promoted to the rank of Lieutenant on December 21, 2022. It explains that when it had “received Cert #PL221767 and we asked for 6 names, however the positions # 1-5 were previously promoted on June 29, 2022 . . . Since those first 5 names were already promoted, Nuno Lopes (who should have been #2) was #7, therefore he did not show up on Certification #PL221767. Now he has been getting paid and working as a Lieutenant since December 21, 2022.” In support of its request, Union submits a copy of a Personnel Action Form dated December 14, 2022, which indicates Lopes’ appointment as a Police Lieutenant effective December 21, 2022; payroll records for the pay period December 10, 2022 through December 23, 2022, and for the period from December 24, 2022 through January 6, 2023, showing an increase in salary; and a copy of his Oath of Office sworn on December 20, 2022, indicating an effective date of December 21, 2022.

CONCLUSION

A retroactive appointment date “for seniority purposes only” may be approved when it is evidenced that an appellant could have been appointed on the subject date, but through error on the part of either the appointing authority or the Civil Service Commission, received a later appointment date, or for other good cause. See N.J.A.C. 4A:4-1.10(c). The “for seniority purposes only” appointment designation establishes that an appellant has no claim for or entitlement to back pay. However, such an award establishes that for seniority-based programs, such as salary step placement, layoffs, and vacation leave time entitlement, seniority is predicated upon the retroactive appointment date. See In the Matter of Wayne A. Robbins (Merit System Board, decided September 5, 1991).

In the instant matter, the record establishes that Lopes appeared on the eligible list for Police Lieutenant (PM4184C), Union Township as the seventh ranked eligible. However, due to administrative error, Union failed to request a certification at the time it appointed the first five ranked eligibles effective June 29, 2022. In this regard, had PL221767 been issued as the second certification of the PM4184C list, Lopes would have been listed in the second certification position and thus, reachable for appointment.2 Furthermore, Union verifies that Lopes had been performing Police Lieutenant duties since December 21, 2022. Therefore, based on the foregoing, it is appropriate to a grant retroactive date of permanent appointment to Lopes as a Police Lieutenant effective December 21, 2022, for seniority and record keeping purposes.

2 As Union explained, as indicated above, it had intended to request a certification prior to the appointment of the first five ranked eligibles effective June 29, 2022. Union further explained that PL221767 should have been the second certification of the PM4184C list containing the names of six eligibles, i.e., the individuals appearing at ranks 6 through 11.

With respect to Lopes’ eligibility for the Police Captain examination, on June 1, 2024, the promotional announcement for Police Captain (PM3809F), Union Township, was issued and this examination was open to employees in the competitive division who had an aggregate of one year of continuous permanent service in the title of Police Lieutenant as of the August 31, 2024 closing date. It is noted that 10 individuals applied, including Lopes. Given that the available record at the time that eligibility was determined indicated that Lopes was regularly appointed as a Police Lieutenant in Union effective February 7, 2024, Agency Services determined that he lacked the required amount of permanent status in a title to which the examination was open as of the August 31, 2024 closing date. However, as noted previously, Lopes has been serving as a Police Lieutenant in Union since December 21, 2022, could have been permanently appointed at that time and has been granted that appointment date in this decision. Thus, as of the August 31, 2024 closing date, he had completed the requisite one year period.

ORDER

Therefore, it is ordered that this request be granted and Lopes receive a date of permanent appointment to the Police Lieutenant title effective December 21, 2022, and all of his seniority based benefits be adjusted accordingly. It is also ordered that Lopes be admitted to the promotional examination for Police Captain (PM3809F), Union Township.

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