On appeal from a Final Decision of the New Jersey Merit System Board, Department of Personnel.
Approved for Publication July 6, 1995
Before Judges Havey, Brochin and Cuff. The opinion of the court was delivered by Brochin, J.A.D.
The opinion of the court was delivered by: Brochin
The Camden County Prosecutor has appealed from a final decision of the Merit System Board of the New Jersey Department of Personnel which certified Camden County special reemployment lists to the prosecutor's office for the titles of chief clerk, principal clerk typist and clerk. The prosecutor contends that the decision of the Merit System Board was arbitrary, capricious and unreasonable and that the Board erroneously treated the appeal as an application for reconsideration of its January 7, 1992 decision. For the following reasons, we reject the Camden County Prosecutor's arguments and we affirm the decision of the Merit System Board.
The July 28, 1993 decision of the Merit System Board directly affects the employment of three of the Camden County Prosecutor's provisional employees. One of these employees currently holds the position of chief clerk; the second is the principal clerk typist; and the third holds the position of clerk. The first two are long-time employees of the prosecutor's office who were provisionally appointed to the positions they now hold when those positions became vacant. The third person was recently hired by the prosecutor's office as a provisional employee.
The Camden County Prosecutor concedes that his office is subject to the provisions of Title 11A and that the positions at issue here are positions in the competitive division of the career civil service. N.J.S.A. 11A:3-2.1a(civil service appointments, as far as practicable, shall be competitive). Under the civil service statutes, a "permanent employee" is "an employee in the career service who has acquired the tenure and rights resulting from regular appointment and successful completion of the working test." N.J.A.C. 4A:1-1.3; N.J.S.A. 11A:1.2.e. A permanent employee in the competitive civil service is afforded substantial protection against dismissal or demotion:
A permanent employee may be laid off for economy, efficiency or other related reason. The employee shall be demoted in lieu of lay off whenever possible . . . . The Board shall adopt rules regarding the order of lay off and employee rights upon recommendation by the commissioner.
A provisional appointee does not enjoy the job protection accorded to a permanent employee. Under the civil service regulations and statutes, a provisional appointee holds his or her "employment in the competitive division of the career service pending the appointment of a person from an eligible list." N.J.A.C. 4A:1-1.3.
The legislature has placed a high priority on safeguarding the employment rights of permanent civil service employees. To safeguard those rights, a permanent employee who suffers the loss of employment enjoys "a special reemployment right" to a position with the same title or to a similar lower or lateral position, provided the positions are vacant or held by provisional appointees. The pertinent regulation provides:
A special reemployment right means the right of a permanent employee, based on his or her permanent title at the time of the layoff action, to be certified for reemployment after the lay off to the same, lateral and lower related titles. Special reemployment rights shall be determined by the Department of Personnel in the same manner as lateral and demotional rights.
When the Department of Personnel has certified a list of appointees eligible for appointment to a particular position, the appointing authority must hire or promote from that list. N.J.S.A. 11A:4-9; N.J.S.A. 11A:4-12. The Commissioner of the Division of Civil Service is authorized to establish lists of persons eligible for "special reemployment." The persons on these special reemployment lists "include permanent employees laid off or demoted in lieu of lay off from permanent titles." N.J.S.A. 11A:4-9(e). Except in limited circumstances, a special reemployment list has the highest priority; that is, vacancies must be filled by appointing eligible persons on the special ...