Certification, Disposition and Removal from an NJ Eligible List

What a certification is

A certification is the Commission's answer to an appointing authority that wants to fill a competitive position from a list. When a vacancy in the competitive division is to be filled from an eligible list, the appointing authority must request a certification of names for regular appointment, in advance and under procedures the Chairperson or designee sets, so that staff can issue one or report that no appropriate list exists (N.J.A.C. 4A:4-4.1(a)). If the position is already filled on a nonpermanent basis, the Chairperson or designee decides whether a certification is needed at all (N.J.A.C. 4A:4-4.1(b)).

The certification lists the names and addresses of the eligibles with the highest rankings on the appropriate list, and the Commission notifies each eligible on it at their last known address (N.J.A.C. 4A:4-4.2(a), (b)). Keeping that address current is your responsibility, not the Commission's (N.J.A.C. 4A:4-3.2(e)). Where the Commission took a single application covering several title areas, the certification is drawn from the pool by title area, county preference and residency (N.J.A.C. 4A:4-4.2(a)1).

An appointing authority is entitled to a complete certification before it makes a permanent appointment (N.J.A.C. 4A:4-4.2(c)). What counts as complete depends on the list:

• From a special, regular, or police, sheriff's officer or fire reemployment list: one interested eligible for each permanent appointment (N.J.A.C. 4A:4-4.2(c)1). The statute adds that a reemployment certification is never treated as incomplete (N.J.S.A. 11A:4-8).
• From a promotional or open competitive list: three interested eligibles for the first permanent appointment and one more for each additional one (N.J.A.C. 4A:4-4.2(c)2).
• Eligibles with the same score share a rank. If three or more eligibles can be certified without reaching all three highest scores, only those eligibles are certified (N.J.A.C. 4A:4-4.2(c)2, N.J.S.A. 11A:4-8). A tie is never broken (N.J.A.C. 4A:4-2.15(j)).
• Where a certification combines several lists and your name appears on more than one, you count once toward completeness (N.J.A.C. 4A:4-4.2(c)2iii).

The statute puts the consequence plainly: a certification with at least three interested eligibles is complete, and a regular appointment shall be made from among them (N.J.S.A. 11A:4-8). With fewer than three, the rule gives the appointing authority options. If no provisional serving in the title is on the certification, it may make a permanent appointment, make a provisional appointment from the list, make a provisional appointment of another qualified person if no eligible on the list is interested, or leave the position vacant. If a serving provisional is on the certification, the choices narrow to a permanent appointment or leaving the position vacant (N.J.A.C. 4A:4-4.2(c)2i, ii). The provisional appointments guide covers what a provisional appointment involves.

Which list the names come from

When more than one current list exists for a title, the rule sets the order in which they are used, starting with special reemployment in the department the eligible was laid off from and ending with open competitive (N.J.A.C. 4A:4-3.7(a), N.J.S.A. 11A:4-12). The eligibility lists guide sets that order out in full.

A list for a different title can stand in. Where the list for a title is unavailable or incomplete, the Chairperson or designee may certify from a list for an appropriate title at the same or a higher level in the same or a related series. Four conditions apply: substantially similar education and experience requirements, the necessary knowledge, skills and abilities evaluated in the examination, a geographic scope that covers the original title's location, and use of the borrowed list to supplement the existing one toward a complete certification (N.J.A.C. 4A:4-4.3(a)).

A common or similar list from the other side of State and local service can also be used, but only at the appointing authority's written request, where the examination requirements suit the requesting jurisdiction, to supplement the existing list, and only for eligibles who said they would work in that jurisdiction (N.J.A.C. 4A:4-4.3(b)). In local service, a regular reemployment list may be certified to the same or comparable titles in every appointing authority in the jurisdiction except school districts (N.J.A.C. 4A:4-4.3(c)).

A certification can also be limited to people of a particular sex, religion or national origin, but only where that is a bona fide occupational qualification essential to the job. The appointing authority carries the burden of showing the designation is necessary, and someone denied an opportunity because of one can contest it as a discrimination appeal in State service or a general appeal in local service (N.J.A.C. 4A:4-4.5(a), (d), (g)).

When the appointing authority has to appoint

An appointing authority cannot always shrug off a good list. Once the examination process has started because a provisional was appointed, or because the appointing authority asked for a list to fill a vacancy, it must make appointments from a complete certification unless the Commission permits otherwise for a valid reason such as fiscal constraints (N.J.S.A. 11A:4-5, N.J.A.C. 4A:10-2.2(a)).

The rule gives one early exit. If the appointing authority tells the Chairperson or designee, by the date of the examination or within 30 days after the announcement first issued, whichever is earlier, that it has vacated the position and ended the provisional appointment, the Chairperson or designee may cancel the examination, excuse a permanent appointment, or take other action (N.J.A.C. 4A:10-2.2(a)1). After that window, the appointing authority has to petition the Commission for permission not to appoint, and the Commission may grant it, and may order the appointing authority to reimburse the cost of the selection process (N.J.A.C. 4A:10-2.2(a)2).

Where the Commission finds a violation of Title 11A or Title 4A, its remedies include ordering the appointment of an eligible from an outstanding list, after the appointing authority has had notice and a chance to respond (N.J.A.C. 4A:10-2.1(a)3, 4A:10-2.2(b)).

Disposing of a certification

"Disposition" is the rules' word for what the appointing authority does with a certification and reports back. When a permanent appointment is to be made, it takes whichever action fits the list (N.J.A.C. 4A:4-4.8(a)):

• From a special reemployment list, it appoints the eligible certified.
• From a regular, police, sheriff's officer or fire reemployment list, it appoints the eligible certified.
• From an open competitive or promotional list, it appoints one of the top three interested eligibles, the rule of three, subject to the veteran limits in N.J.A.C. 4A:4-4.8(a)3: from an open competitive list, disabled veterans and then veterans are appointed in their order of ranking, and if a veteran ranks first on a promotional list, a non-veteran may not be appointed.

The promotional limit has a release valve. A non-veteran can be appointed over a veteran who heads a promotional certification only if the appointing authority shows cause why the veterans should be removed from the list, through the removal procedure described below (N.J.A.C. 4A:5-2.2(c), N.J.S.A. 11A:5-7). How veteran status orders a list in the first place, and how the order shifts as appointments are made from one certification, is in the veterans preference guide.

The appointing authority reports the disposition to the Commission by the disposition due date, in the manner the Chairperson or designee prescribes (N.J.A.C. 4A:4-4.8(b)). The report must include the names of the eligibles to be permanently appointed, the effective date of those appointments, the appointee's salary in local service, the title and functions of the job where an appropriate list was used, the assignment judge's approval for a Municipal Court Administrator or Deputy Municipal Court Administrator, and any other information requested (N.J.A.C. 4A:4-4.8(b)1 through 6).

The due date can move, within limits. It may be extended beyond the list's expiration date to fill current vacancies, but never past expiration when no vacancy exists, and an anticipated vacancy is not an existing one (N.J.A.C. 4A:4-4.8(b)). If disposing of the certification would displace a provisional employee who has permanent status and layoff procedures are needed, the Chairperson or designee may, on written request, allow 45 more days (N.J.A.C. 4A:4-4.8(d)). Missing the due date can lead to a constructive appointment or other remedial action (N.J.A.C. 4A:4-4.8(c)).

If you are certified and not chosen

"Bypass" is common shorthand for an appointment of a lower-ranked eligible. Title 4A does not use the word. What the rules do say is narrower than the word suggests. The appointing authority may choose any of the top three interested eligibles, within the veteran limits, and nothing in N.J.A.C. 4A:4-4.8 requires it to tell you why it chose someone else. The report it files goes to the Commission, and the items the rule lists name who is appointed and when, not why anyone else was passed over (N.J.A.C. 4A:4-4.8(b)).

Being passed over is not, on its own, a ground for removing your name. The grounds are listed in N.J.A.C. 4A:4-4.7(a), and a regular appointment of someone else is not among them, so ordinarily you stay on the list and move up as names above you come off (N.J.A.C. 4A:4-4.7(e)). On a promotional list, every eligible is certified in order of rank for as long as they remain on the list (N.J.A.C. 4A:4-4.4(b)).

Open competitive lists carry one limit for non-veterans. If you are a non-veteran certified to the same appointing authority from an open competitive list three times, and each time a lower-ranked eligible was chosen over you, your name is withheld from that appointing authority's future certifications. The appointing authority can ask to have you recertified, and then only you and any veteran ranked equal to or above you are certified (N.J.A.C. 4A:4-4.4(a)). The withholding runs only to that one appointing authority; the rule does not take you off the list.

If you think the choice broke a rule, such as appointing a non-veteran ahead of a veteran from an open competitive list, the route is a written appeal to the Commission. Unless a different period applies, it is due within 20 days of when you had notice or should reasonably have known of the action, and it is decided on the written record unless a hearing is required or a material factual dispute needs one (N.J.A.C. 4A:2-1.1(b), (d)). You carry the burden of proof (N.J.A.C. 4A:2-1.4(c)). Where a dispute over higher-ranked eligibles could change the outcome, the appointing authority may make a conditional regular appointment, which ends if the higher-ranked eligible's rights are upheld and becomes regular, keeping its original date, if they are not (N.J.A.C. 4A:4-1.4).

One kind of non-selection has a different route. Not being selected for an advancement appointment under N.J.A.C. 4A:3-3.2A is handled through the grievance procedures, not the examination appeal procedures (N.J.A.C. 4A:4-6.3(g), 4A:4-6.6(c)).

Grounds for removing a name

N.J.A.C. 4A:4-4.7(a) has eleven numbered paragraphs. Ten are reasons a name may be removed from an eligible list, and the ninth, on involuntary transfers, does the opposite. The word in the rule is "may": each is a permitted ground, not an automatic consequence.

• Any cause for disqualification in N.J.A.C. 4A:4-6.1, set out in the next section.
• A regular appointment through certification to the title the list was promulgated for or made appropriate to. An appointment to a lower title is not a ground.
• Inability, unavailability or refusal to accept appointment. An eligible who has declined may ask in writing to have their name withheld from future certifications until available, and must tell the Commission when they want to be considered again.
• A criminal record that adversely relates to the employment sought.
• Notice from the postal authorities that they cannot locate or deliver mail to the eligible.
• Not complying with the instructions on the notice of certification.
• Ending your residence in the jurisdiction the examination was limited to, or for a title that requires continuous residency.
• Leaving the unit scope a promotional examination was limited to, unless you took a temporary or interim appointment in another unit scope. If you later return to the unit scope within your current continuous service, you may ask in writing to be restored to the promotional list.
• Failure to maintain interest in a geographical area or choice.
• Other valid reasons as determined by the Chairperson or designee.

If you are transferred involuntarily, you stay on the promotional list until you have had a chance to take a promotional examination in the new unit scope or are appointed from the list (N.J.A.C. 4A:4-4.7(a)9).

Two things are never a ground: accepting or refusing a temporary or interim appointment (N.J.A.C. 4A:4-4.7(f)), and a regular appointment to a lower title (N.J.A.C. 4A:4-4.7(a)2). Separately, where you applied once for several title areas, the pool rules apply: a removal for cause from one jurisdiction or title area removes you from the pool for every other, while a regular appointment removes you only from the pool for that title area (N.J.A.C. 4A:4-4.7(g), (h)).

Criminal records, and the pardon rule

The criminal record ground lives in the removal rule, not in the disqualification rule. A name may be removed where the eligible has a criminal record that adversely relates to the employment sought, and the rule lists five factors that may be weighed (N.J.A.C. 4A:4-4.7(a)4i):

• The nature and seriousness of the crime.
• The circumstances under which it occurred.
• The date of the crime and the eligible's age at the time.
• Whether it was an isolated event.
• Evidence of rehabilitation.

Presenting a pardon or an expungement prohibits removal from a list, except for law enforcement, correction officer, correctional police officer, juvenile detention officer, firefighter and judiciary titles, and other titles the Chairperson or designee determines (N.J.A.C. 4A:4-4.7(a)4ii). The statute frames the same test as a removal at the appointing authority's request, where the record includes a conviction for a crime that adversely relates to the job, and it carries the same five factors and the same pardon and expungement bar with its law enforcement, firefighter and correction officer exception (N.J.S.A. 11A:4-11).

What you can be asked differs by title. Eligibles may be questioned about criminal convictions and pending criminal charges, and eligibles for law enforcement, firefighter or correction officer titles may also be questioned about any arrest (N.J.S.A. 11A:4-10).

Disqualification

The first removal ground imports the disqualification rule, which also governs whether you can sit an examination or be appointed at all. A person may be denied examination eligibility or appointment for lacking the job requirements; being ineligible by law; being physically or psychologically unfit to perform the duties, with an armed forces injury not counted unless the Chairperson or designee considers it incapacitating; failing the examination; having been removed from public service for disciplinary reasons after an opportunity for a hearing; a false statement of material fact or attempted deception or fraud in the selection or appointment process; a prior employment history that relates adversely to the title; failing to pay the application fee or document an exemption in time; or other sufficient reasons (N.J.A.C. 4A:4-6.1(a)).

Two of those grounds can be overcome. Except where the law forbids it, a person disqualified for a prior disciplinary removal or an adverse employment history may, for good cause, be admitted to an examination and, with the appointing authority's concurrence, certified for appointment (N.J.A.C. 4A:4-6.1(b)). A disqualification takes effect on receipt of written notice of it (N.J.A.C. 4A:4-6.1(c)).

The consequences run from rejecting an application through refusing to certify, removing a name from the list and removal from employment (N.J.A.C. 4A:4-6.2(a)). Removing someone who is permanent or serving a working test period has to go through major disciplinary procedures (N.J.A.C. 4A:4-6.2(c)), which the discipline guide explains.

How a removal is decided

An appointing authority that wants a name removed has to build its case on paper and on time. It must send a Commission representative all the documents and arguments behind the request no later than the date for disposition of the certification (N.J.A.C. 4A:4-4.7(b)). If you ask, or if you appeal, the appointing authority must give you copies of everything it sent, and a request may be denied if it fails to give either the Commission or you those copies (N.J.A.C. 4A:4-4.7(b)1, 2).

A Commission representative, not the appointing authority, decides whether there are sufficient grounds. The representative notifies the appointing authority and you of the decision and advises you of your appeal rights (N.J.A.C. 4A:4-4.7(c)). When a name comes off, every name below it moves up, and the Chairperson or designee may supplement the certification so the appointing authority has enough names for a complete one (N.J.A.C. 4A:4-4.7(e)).

A medical or psychological removal follows its own track. The appointing authority has to supply a copy of the certification and a report and recommendation signed by a New Jersey licensed physician, psychologist or psychiatrist, or by someone it employs in the Clinical Psychologist title series, finding you not qualified for the title, and the request may be denied without one (N.J.A.C. 4A:4-6.5(a)). Under the Americans with Disabilities Act, it may require the examination only after an offer of employment and before appointment, and only if every eligible offered the job is examined, the results are kept as confidential medical records, and they are used only as the ADA allows (N.J.A.C. 4A:4-6.5(b)).

1. Request and evidence. The appointing authority sends a Commission representative every document and argument behind the request, no later than the disposition date of the certification (N.J.A.C. 4A:4-4.7(b)).
2. Copies to you. On your request or your appeal, the appointing authority gives you copies of everything it sent. Failing to do so can sink the request (N.J.A.C. 4A:4-4.7(b)1, 2).
3. Commission decides. A Commission representative decides whether the grounds are sufficient and notifies you and the appointing authority, with your appeal rights (N.J.A.C. 4A:4-4.7(c)).
4. Appeal within 20 days. You may appeal in writing within 20 days of notice, to the representative named on the notice (N.J.A.C. 4A:4-6.6(a)).
5. Written record decision. The Commission decides on the written record or another proceeding it chooses, with the burden on you unless the removal was medical or psychological (N.J.A.C. 4A:4-6.6(b), 4A:4-6.3(b)).

Appealing a removal or disqualification

A removal from a list is appealed through the examination and selection appeal rule (N.J.A.C. 4A:4-4.7(d)). That rule covers disqualifications under 4A:4-6.1, list extension or revival, and denial of veterans preference for an examination, alongside appeals on examination items and scoring and medical or psychological disqualification (N.J.A.C. 4A:4-6.3(a)).

For a removal or disqualification other than a medical or psychological one, the appeal is due within 20 days of notice of the action, filed with the Commission representative named on the notice, and the Commission decides it on the written record or another proceeding it chooses (N.J.A.C. 4A:4-6.6(a), (b)). It must be in writing and give the examination title and symbol number where appropriate, the action appealed, your specific objections and the relief you want, and you must serve copies of everything on every other party (N.J.A.C. 4A:4-6.3(e), (f)).

The burden is on you, the appellant, except in a medical or psychological disqualification appeal, where the appointing authority carries it (N.J.A.C. 4A:4-6.3(b)). Filing does not freeze anything: unless the Commission or the Chairperson orders otherwise, an appeal does not affect the promulgation of a list, a certification or an appointment (N.J.A.C. 4A:4-6.3(c)).

The medical and psychological track has longer clocks. The notice tells you that you may appeal within 20 days and that your name comes off if you do not. Once you appeal, the appointing authority has 20 days to send the Commission all background information and reports, and must give them to your attorney or a New Jersey licensed psychologist or psychiatrist you choose on request. You have 90 calendar days from filing to submit a report from a New Jersey licensed professional of your own choosing (N.J.A.C. 4A:4-6.5(c) through (e)). The Commission may decide on the written record or send the appeal to the Personnel Medical Review Panel or Examiners Panel, where either side may ask within 10 days to appear, and either may file exceptions to the panel's report within 10 days and cross-exceptions within five (N.J.A.C. 4A:4-6.5(g)).

How long a list lives

A list has two birthdays. It is issued on the date it is available for review by candidates, appointing authorities and the public, and promulgated on the date it can be certified and appointments made from it (N.J.A.C. 4A:4-3.3(a)). Open competitive and promotional lists are promulgated for three years from establishment unless the Chairperson or designee sets a shorter period. An extension for good cause has to come before the expiration date, and no list may last more than four years (N.J.A.C. 4A:4-3.3(b)1, N.J.S.A. 11A:4-6).

A promotional list for a law enforcement or firefighter title that has been extended until a new list is ready expires when the new list is issued, but nobody is certified or appointed from the new list until its promulgation date (N.J.A.C. 4A:4-3.3(e)). A name stays on a regular reemployment list for no more than three years from resignation, and special, police, sheriff's officer and fire reemployment lists have no time limit (N.J.A.C. 4A:4-3.3(b)2, 3, N.J.S.A. 11A:4-7).

The Chairperson or designee may cancel a list early for fraud, illegality, test invalidity, error by Commission staff or other good cause, by an order that provides for notifying eligibles, and must also notify affected appointing authorities (N.J.A.C. 4A:4-3.3(c)).

Revival, consolidation and corrections

An expired list is not always finished. The Commission may revive one to implement a court order in a suit filed before the list expired, to implement a Commission order in an appeal or proceeding brought during the life of the list, to correct an administrative error, to appoint an eligible whose working test period was ended by a layoff, or for other good cause (N.J.A.C. 4A:4-3.4(a)). The statute names the court order, appeal, error and layoff grounds (N.J.S.A. 11A:4-6). For the court order and appeal grounds, the case has to be started while the list is still alive; the error and good cause grounds carry no such condition. A decision to extend or revive a list can itself be appealed (N.J.A.C. 4A:4-6.3(a)3ii).

Successive lists for one title can be consolidated in three ways: placing the first name on the later list after the last name on the earlier one, supplementing an incomplete list with a list for an appropriate title, or combining names by score. When that happens, the earlier list does not run past its own expiration date (N.J.A.C. 4A:4-3.5, N.J.S.A. 11A:4-4).

Names can be added while a list is alive: after a passed make-up examination, to correct a Commission error, to carry out an appeal decision, where a third party such as a college or the Veterans Administration sends documents correcting an administrative error, or under the military return rule. When the addition corrects a Commission error, a Commission representative decides retroactive certification and appointment rights; otherwise the Chairperson or designee decides the effect on certifications and earlier permanent appointments (N.J.A.C. 4A:4-3.6). Staff may also correct any error during the life of a list, and a correction can change the ranking (N.J.A.C. 4A:4-3.8).

Appointment dates and starting work

You cannot be appointed and start work after the list expires, with three exceptions: you are on military leave or, for a promotional appointment, an approved leave of absence, in which case you may start on returning to active service; the list has had a limited revival or statutory extension, though never past the statutory extension date; or the certification was made just before the list expired, in which case both the appointment date and the start date must fall no later than the disposition due date (N.J.A.C. 4A:4-4.9(a)).

Once you accept, the start date matters. If you cannot begin work within three weeks, or another reasonable time the appointing authority specifies, it may treat you as unavailable and ask Commission staff to certify additional names (N.J.A.C. 4A:4-4.10). Unavailability is also one of the removal grounds (N.J.A.C. 4A:4-4.7(a)3).

Military service works the other way. Interested eligibles on military leave continue to be certified, and the appointing authority may treat them as immediately available even if reporting is delayed (N.J.A.C. 4A:4-4.6(a)). A National Guard or reserve member called to active federal duty whose open competitive list expired while they were away may apply, within 12 months of expiration, to be placed on an active list for the same title, generally in the same jurisdiction and from the same test mode (N.J.A.C. 4A:4-4.6A(a), (b)). A regular appointment from the list carries a working test period (N.J.A.C. 4A:4-5.1(b)).

Other workplace rights guides

This guide is one of a set on the rules that govern working for a New Jersey civil service employer. Start at the workplace rights overview for how the different appeal routes fit together.

• Telework in State service

  The two-day limit, the thirteen eligibility criteria, how denials and revocations are decided, and the three ways to challenge one.

• Vacation, sick and family leave

  How much leave you earn, what happens to unused days, sick leave at retirement, family leave, and the State and local split.

• Discipline and removal

  Major and minor discipline, notice and hearing before a penalty, the 20-day appeal and what you recover if you win.

• Layoffs

  The 45-day notice, how seniority is counted, lateral and demotional rights, special reemployment lists and the two layoff appeals.

• Pay, steps and overtime

  How steps and anniversary dates work, pay on promotion, demotion and reclassification, overtime categories, comp time and holiday pay.

• The working test period

  How long the probation period lasts, the progress reports, what happens at the end, and the appeal if you are let go.

• Classification appeals

  Out-of-title work, asking for a position review, what reclassification does to pay and status, and the 20-day appeal.

• Veterans preference

  Who qualifies, how the Adjutant General decides status, and how preference orders open competitive, promotional and noncompetitive appointments and layoffs.