On appeal from a final decision of the Civil Service Commission.
Ard, Morton I. Greenberg and Trautwein. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
Appellant, John J. Crowley, a parole officer, appeals from a final determination of the Civil Service Commission (hereinafter called "Commission") issued on November 12, 1982 denying his request to reopen its decision of May 10, 1982 rejecting an appeal which he had filed with the Commission. An understanding of this matter requires a full exposition of the background of this case.
A promotional eligibility list for the position of senior parole officer was promulgated on May 4, 1978 with an expiration date of May 3, 1981. Appellant, a non-veteran, ranked 21st on the list of 83 eligibles. Appellant's name was certified eight times
to the position of senior parole officer but he was interested in only two of the eight certifications, those to the Clifton office of the Bureau of Parole, Department of Corrections.
The first certification to Clifton was issued on May 15, 1978. It resulted in the permanent appointment of persons ranking 5th, 16th, 18th and 24th on the promotional eligibility list. Appellant was notified on June 12, 1978 by the Chief of the Bureau of Personnel, Department of Corrections, that he had not been appointed to the position because "[i]ndividuals ranking higher on the certification and provisional incumbents of the position have been appointed and there are no additional vacancies remaining in the location(s) [in] which you have indicated an interest."
The second certification to Clifton was issued on August 9, 1979. It resulted in the permanent appointment of a person ranked 41st on the promotional eligibility list. Appellant received written notification on August 20, 1979 from the Acting Chief of the Bureau of Parole that he had not been appointed to the position. He received no explanation for this action. Appellant was offered senior parole officer appointments in Newark, Rahway, Trenton and Leesburg. He, however, declined these positions based on his interest in the Clifton area.
On August 24, 1979, appellant, as allowed in his union contract, filed a grievance with the Department of Corrections (hereinafter called "Department") alleging discrimination in the bypassing of his name for appointment. In his statement of grievance, appellant alleged that it had been the past practice of the Bureau of Parole to make promotional appointments according to the numerical rank contained on promotional eligibility lists. Since appellant had twice been bypassed by individuals with less experience and a lower numerical rank and inasmuch as his district supervisor had informed him that his work was satisfactory and that there was nothing derogatory against him, appellant alleged that he had been bypassed because he was a union shop steward and former chapter secretary. According to
appellant, the only individuals within the top 40 candidates on the promotional eligibility list who had not been appointed to the position of senior parole officer still with the Bureau of Parole were appellant and officers of his union.
A department level grievance hearing was conducted by the Bureau of Parole on December 27, 1979. The Acting Chief of the Bureau of Parole denied that the decision not to appoint appellant as a senior parole officer at Clifton in August 1979 was based on discrimination attributable to appellant's union affiliation. Indeed the acting chief stated that he was unaware of appellant's status as a union secretary and shop steward when he bypassed appellant for promotion.
Furthermore, according to a representative of the Bureau of Parole who appeared at the grievance hearing, the Bureau did not discriminate against appellant. Rather, it utilized its discretion in selecting one of three interested eligibles for each available position. The selection was based on the candidates' experience, ability and performance.
After reviewing the oral testimony and all of the written material presented, the hearing officer issued a written opinion in which he found:
On April 10, 1980, following his receipt of the grievance disposition, appellant wrote to the hearing officer and requested that he consider certain issues which appellant believed had not
been satisfactorily addressed in the response to his grievance. Specifically, appellant noted that he had never been advised in writing by the Bureau of Parole as to the reasons for his non-selection to the position of senior parole officer at Clifton. He also noted that the Bureau had failed to cite any exceptions to its past practice of promoting individuals according to their numerical rank on the list of eligibles. In addition, appellant argued that the offer to him of senior parole officer positions at sites other than Clifton demonstrated that he was being discriminated against because of his union activities since the Bureau of Parole only considered him for positions which would remove him from the district office in which he was shop steward. On June 13, 1980, the Department issued a written response to appellant's request wherein it noted that appellant's letter constituted an inappropriate appeal within the grievance process. Thus the Department declined to respond to the questions raised by appellant. The Department further indicated appellant could appeal as provided in his union contract.
Appellant, on April 8, 1980, had already filed another grievance with the Department demanding a comprehensive statement of reasons for not being selected for the position of senior parole officer at Clifton in June 1978 and August 1979. On July 7, 1980, the Chief of the Bureau of Parole responded to appellant's grievance in writing. He noted that appellant had already received written notification at the time he was bypassed in June 1978 that appointments had been made from among individuals having a higher rank than appellant or from persons already serving in the position of senior parole officer as provisional appointees. With regard to the reasons for appellant's not being selected in August 1979, the chief stated:
My decision not to appoint you was based upon an assessment of candidates' demeanor, alacrity of response, caliber of response, and overview of the Bureau's role. Your presentation was adequate as was that of other candidates, to a greater or lesser degree. I made appointments from that group of candidates whose presentation appeared to be the most substantial.
By letter dated August 4, 1980, appellant sought a civil service hearing concerning the promotional procedure utilized by the
appointing authority in bypassing him for promotion and the appointing authority's conduct in processing his grievance. Appellant alleged that since he had been passed over for promotion by individuals with less experience and lower numerical ranks, the appointing authority had violated various civil service regulations which provide that appointments and promotions in the civil service should be made only according to merit and fitness. Appellant also alleged that the reasons given to him by the Chief of the Bureau of Parole for his August 1979 non-selection had no relationship to the qualifications necessary to perform the ...