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Communications Workers of America v. New Jersey Dept. of Personnel

May 11, 1998


Argued October 6, 1997

On certification to the Superior Court, Appellate Division, whose opinion is reported at 299 N.J. Super. 166 (1997).

The opinion of the court was delivered by: Pollock, J.

Pursuant to N.J.S.A. 11A:2-11i (Section 11i), the Commissioner of Personnel (the Commissioner) initiated two pilot programs for determining the eligibility of candidates for civil service appointments. The first program increased the number of eligible candidates from three to ten, and the second extended working test periods from four to twelve months. On the appeal of the Communications Workers of America (CWA) under Rule 2:2-3(a)(2), the Appellate Division declared that the programs exceeded the Commissioner's statutory authority. 299 N.J. Super 166. We granted the Department of Personnel's petition for certification, 151 N.J. 75 (1997), and reverse the judgment of the Appellate Division.


In 1994 and 1995, the Commissioner held public hearings on the State's civil service system. Based on these hearings, the Commissioner, on November 27, 1995, announced plans for the institution of two state-wide pilot programs under N.J.S.A. 11A:2-11i (Section 11i), which provides:

In addition to other powers and duties vested in the commissioner by this title or any other law, the commissioner . . . [m]ay establish pilot programs and other projects for a maximum of one year outside of the provisions of this title.

The proposed programs departed from provisions of the Civil Service Act (Act), N.J.S.A. 11A:1-1 to 12-6. Ordinarily, a civil service employer's selection of an employee is limited to the three highest ranked eligible candidates ("the Rule of Three"). N.J.S.A. 11A:4-8. The first pilot program would expand the number of eligible candidates from three to ten, thereby testing a "Rule of Ten." As described by the Commissioner, the Rule of Ten:

expands the list of people who can be hired from a certification, giving more choices in whom [the appointing authorities] can hire and supporting their goal of diversifying their workforce. At the same time, expanding to a "rule of ten" provides opportunities for more job candidates.

In a nutshell, the "rule of ten" pilot program will increase the minimum number of names to be considered for selection from three to ten. This means that a participating appointing authority may appoint any eligible among the top ten interested and highest ranking eligibles on the certification provided that veterans preference rights are not affected. For each participating appointing authority, the "rule of ten" will apply to all certifications generated from every open competitive and promotional list, except for those lists which involve public safety, titles, or when special, regular and police and fire reemployment lists are available.

The requirements of N.J.A.C. 4A:4-4.8 still apply under the "rule of ten" when disposing of a certification. That is, the appointing authority shall provide a statement of the reasons why the appointee was selected instead of a higher ranked eligible or an eligible in the same rank due to a tied score.

The second pilot program, described as "Extension of Working Test Period":

extends the on-the-job evaluation period during which employers can assess candidates' suitability for their jobs -- and during which employees can demonstrate their fitness for their positions through actual performance of their duties.

Under the terms of this pilot program, all employees appointed permanently by the state or local government appointing authority are subject to a twelve month working test period. This program tested an alternative to the Act's "Working Test Period" provision, which provides for "[a] working test period following regular appointment of four months, which may be extended to six months at the discretion of the commissioner." N.J.S.A. 11A:4-15a; see also N.J.A.C. 4A:4-5.2 (establishing length of working test period as three months for local appointments, not subject to extension, and four months for state appointments, subject to two-month extension at appointing authority's discretion).

The Commissioner solicited comments and conducted public hearings on the pilot programs. The CWA objected to the programs, asserting that they exceeded the Commissioner's statutory authority. In response, the Commissioner stated in a letter dated January 23, 1996 that the pilot programs represented a proper exercise of her authority under Section 11i. The CWA appealed to the Appellate Division under Rule 2:2-3(a)(2), which provides for an appeal as of right "to review final decisions or actions of any state administrative agency or officer."

While the CWA's appeal was pending, the Office of the Public Defender requested and received approval from the Commissioner to go forward with the two pilot programs. The Public Defender used the Rule- of-Ten program to appoint in permanent positions three Chief Investigators who had been serving provisionally in those positions but who had not been qualified for a permanent appointment under the Rule of Three.

The Appellate Division struck down the pilot programs. It held "that the pilot programs exceed the scope of powers which may be lawfully delegated under N.J.S.A. 11a:2-11i; violate its plain language by administratively controverting and altering the express provisions of existing statutes; and that they should not have been adopted without ...

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