Police Officer (M2429E), CSC Docket No. 2025-2419

BackgroundThe Division of Human Resource Information Services (HRIS) requests that the Civil Service Commission (Commission) order Somers Point to return the June 20, 2024 certification (OL240703) of the eligible list for Police Officer (M2429E), Somers Point, for proper disposition.

As background, the subject eligible list1 was certified to the appointing authority on June 20, 2024 (OL240703) and was due to be disposed of by February 20, 2025.2 Michael Berenotto, a veteran, was ranked number one on the certification. The appointing authority returned the certification to HRIS on February 24, 2025, seeking to retain Berenotto’s name for future consideration because he was unavailable for appointment due to his military leave and there was insufficient time to complete preemployment requirements such as the background investigation.

Upon receipt of the certification, HRIS notified the appointing authority on February 24, 2025 and February 27, 2025 that the disposition could not be approved because it could not “bypass” Berenotto, a veteran. Rather it had to either appoint him “in absentia” with a current date as a “placeholder” or remove his name for cause. If recorded as appointed on the certification, Berenotto would complete preemployment processing on return from military duty and be treated as though he

1 The Police Officer (M2429E), Somers Point, eligible list promulgated November 16, 2023 and expired

December 2, 2025. 2 The original disposition due date was December 20, 2024, but the appointing authority requested and received an extension to February 20, 2025.

had been present at the inception of the orientation process with the rest of the individuals on the certification. HRIS relied on the Uniformed Services Employment and Reemployment Rights Act (USERRA).

In response, the appointing authority, represented by Thomas G. Smith, Esq., lodged an “appeal” with the Division of Appeals and Regulatory Affairs (DARA) on March 19, 2025 arguing that it was not required to hire Berenotto since he was unable to be properly vetted and is still not required to hire him without such a vetting, notwithstanding his veteran status. It explained that due to the time constraints imposed on being able to send an officer to the academy in January 2025, Berenotto was passed in this round, and the appointing authority elected to proceed and appoint two officers.3 Berenotto’s background and required testing would not have been completed by the required time of December 17, 2024 (i.e., 30 days prior to the commencement of the academy on January 17, 2025) as set by the Police Training Commission.

On April 4, 2025, the appointing authority advised HRIS of its “appeal” to DARA and stated that no action could be taken relative to the subject certification and Berenotto until said “appeal” has been resolved. On April 7, 2025, HRIS reiterated to the appointing authority that Berenotto should be appointed “in absentia” with a current date to protect Berenotto’s seniority date if he successfully completes the preemployment process upon return. HRIS further advised that the appointing authority could amend the certification if Berenotto does not successfully complete the preemployment process. Subsequently, HRIS made a request for enforcement4 to the Commission, specifically noting:

To: [DARA]

From: [HRIS]

Title: Police Officer

Certification: OL240703 – created 6/20/2024

Symbol M2429E (expired 12/2/2025)

Jurisdiction: Somers Point

Request for Enforcement – Despite a Veteran at the first listed position, the [appointing authority] has not appointed, nor submitted sufficient documentation to remove or legitimately bypass the candidate.

3 According to the County and Municipal Personnel System, these individuals received temporary appointments, effective January 17, 2025, under the provisions of N.J.S.A. 11A:4-1.3 (commonly known as the “Alternate Route Program”). 4 This request has been included in the instant matter.

Appointees from this [certification] will soon be eligible for the next

Sergeant announcement, but, not having been properly recorded in [the

County and Municipal Personnel System], will be denied entry due to not being employed by Somers Point.5

AnalysisIn the instant matter, the appointing authority, continuing to be represented by Smith, argues that enforcement action against it prior to a ruling on its March 19, 2025 “appeal” would be inappropriate. Also, as to the matter of Berenatto’s appointment, it remains the appointing authority’s position that it cannot be forced to appoint him until he has been properly vetted. The appointing authority maintains that it is only upon completion of this vetting procedure that it would be in the position to actually make a determination as to the appointment of Berenatto. It has been, and still is, the appointing authority’s position that if Berenatto’s vetting demonstrates that he is qualified to be a Police Officer, then he will be appointed. The position for Berenatto is still being held open. Berenatto is to contact the appointing authority upon his return from his most recent deployment, which the appointing authority expects to occur in October 2026. Per the appointing authority, Berenatto had indicated that he would be contacting the Police Department upon his return, but he has not yet done so. Upon Berenatto’s return, he will be requested by the department to come in for his interview, fingerprinting, and drug screening. Depending on his results, he will be appointed. He has not been removed from his position on the subject certification. In the appointing authority’s view, the threatening of sanctions against it is inappropriate, when it has, at all times, agreed to appoint Berenatto should he pass the vetting process required by law.

CONCLUSION

N.J.S.A. 11A:5-6, N.J.A.C. 4A:4-4.8(a)3i and N.J.A.C. 4A:5-2.1 provide that on open competitive lists, disabled veterans and then veterans shall be appointed in their order of ranking (emphasis added).

RuleN.J.A.C. 4A:4-4.6 provides:

(a) Interested eligibles on military leave shall continue to be certified. The appointing authority may consider such eligibles immediately available for appointment even though reporting for work may be delayed.

Analysis5 This recitation satisfies the appointing authority’s request that HRIS’s enforcement request be “suppl[ied].” To the extent the appointing authority is requesting an actual copy of the document, such is a records request that should be pursued through Open Public Records Act (OPRA) procedures. The Commission makes no determination as to whether the document would be disclosable under OPRA. Further, whether or not the document is disclosable under OPRA, the Commission may take appropriate action to enforce Civil Service law and rules. See N.J.S.A. 11A:10-3; N.J.A.C. 4A:10-2.1(a)2.

(b) On return from military duty, an appointed eligible shall, after successful completion of the working test period, have the same rights, privileges and obligations as if the eligible had served continuously in the title from the original effective date of appointment (emphasis added).

Additionally, it is noted that USERRA provides:

A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.

38 U.S.C. § 4311(a).

In the instant matter, the appointing authority argues that it was not required to appoint Berenotto since he was unavailable due to his military leave and he did not complete preemployment processing. However, although Berenotto was on military leave, as an interested veteran, unless the appointing authority can properly remove his name from the subject eligible list pursuant to N.J.A.C. 4A:4-4.7,6 Berenotto is entitled to be appointed and cannot be bypassed. See N.J.S.A. 11A:5-6, N.J.A.C. 4A:4-4.8(a)3i, and N.J.A.C. 4A:5-2.1. He also cannot be deemed unavailable. See N.J.A.C. 4A:4-4.6. Thus, as there was no request for his removal at the time of the initial certification disposition, Berenotto should have been recorded as appointed on the certification, effective January 17, 2025.7 However, this appointment is considered conditional, pending passing the preemployment processing for the position, which includes the background investigation and the medical and psychological examinations. In other words, the appointing authority should have returned the subject certification, noting Berenotto’s appointment. Thereafter, once the appointing authority had the opportunity to fully complete Berenotto’s background investigation upon his return from military duty, including reviewing Berenotto’s employment application and sending him for medical and psychological examinations, if there was any basis for removal, it could have requested an amendment to the subject certification and provided HRIS with the appropriate reason for removal and supporting documentation. If a removal was approved, Berenotto would then have had an opportunity to appeal his removal.8 and does not prevent the appointing authority from appropriately vetting Berenotto’s candidacy.

6 The name of an eligible may be removed from an eligible list for various reasons as set forth in N.J.A.C. 4A:4-4.7. 7 Said date is commensurate with the effective date of the two temporary appointments the appointing authority made utilizing the “Alternate Route Program.” 8 Thus, the Commission’s decision here effectively rules on the appointing authority’s March 19, 2025 “appeal”

Therefore, based on the foregoing, the appointing authority is ordered to properly dispose of the subject certification within 30 days of the issuance of this decision. If Berenotto successfully completes preemployment processing, his appointment is mandated. The Commission understands that the appointing authority is apparently holding a position open for Berenotto. Nevertheless, it notes that the appointing authority would not be required to displace any currently employed individual in appointing the appellant. Further, upon successful completion of his working test period, his January 17, 2025 permanent appointment date shall be recorded for salary-step placement and seniority-based benefits. See N.J.A.C. 4A:4- 4.6(b). Alternatively, the appointing authority may provide HRIS with a legitimate reason and documentation to remove Berenotto’s name from the subject eligible list.

Lastly, 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), Newark, Docket No. A-4347-87T3 (App. Div. February 2, 1989). In the instant matter, while the Commission acknowledges that the appointing authority is apparently holding a position open for Berenotto, the appointing authority was still obligated to make a proper disposition of the subject certification, which, at this point, has been outstanding for over two years. See N.J.A.C. 4A:4-4.8(b)-(c). Therefore, the Commission orders that the costs incurred by this agency in the compliance process be assessed against the appointing authority in the amount of $1,000, pursuant to N.J.S.A. 11A:10-3 and N.J.A.C. 4A:10-2.1(a)2, to be remitted within 30 days of the issuance of this order. Additionally, if the appointing authority does not adhere to the above-noted timeframe for the proper certification disposition without an approved extension of time, it shall be assessed a fine in the amount of $100 per day, beginning on the 31st day from the receipt of this decision, and continuing for each day of continued violation, up to a maximum of $10,000. See In the Matter of Police Officer (CSC, decided November 5, 2015).

ORDER

Therefore, it is ordered that the appointing authority properly dispose of the certification as set forth above within 30 days.

Moreover, the Commission orders that the costs incurred by this agency in the compliance process be assessed against the appointing authority in the amount of $1,000, pursuant to N.J.S.A. 11A:10-3 and N.J.A.C. 4A:10-2.1(a)2, to be remitted within 30 days of the issuance of this order.

If the appointing authority does not adhere to the above-noted timeframe for the proper certification disposition without an approved extension of time, it shall be assessed a fine in the amount of $100 per day, beginning on the 31st day from the receipt of this decision, and continuing for each day of continued violation, up to a maximum of $10,000.

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