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In the Matter of

July 21, 2011


On appeal the Civil Service Commission, New Jersey Department of Personnel, Merit System Board, Docket No. 2009-3944.

Per curiam.


Argued April 5, 2011

Before Judges Graves and St. John.

The County of Cape May appeals from a final administrative decision of the Civil Service Commission (the Commission) reclassifying the job title of John C. Johnson from "Prosecutor's Agent" to "Property Clerk." For the reasons that follow, we affirm.

Johnson was first hired by the County in May 1982 as a "Communication Terminal Operator, Dispatcher." On September 24, 1984, he was promoted to Prosecutor's Agent, an unclassified position within the county government.*fn1 At that time, Cape May County was permitted to employ two unclassified "[a]gents, investigators or special officers" pursuant to the terms of N.J.S.A. 11:4-4(s).

In 1986, the Legislature enacted the Civil Service Act (the Act), L. 1986, c. 112, which replaced Title 11 with Title 11A. N.J.S.A. 11:4-4 was effectively superseded by N.J.S.A. 11A:3-4, entitled "State unclassified service." Unlike its predecessor, N.J.S.A. 11A:3-4 did not provide for Prosecutor's Agents as unclassified State employees. In 1989, however, the Merit System Board*fn2 (the Board) announced that "[d]ue to the sensitive nature of the Prosecutor's Office and the longstanding use of Prosecutor's Agents, the position of Prosecutor's Agent should remain in the unclassified service pursuant to N.J.S.A. 11A:3-4(l)."*fn3 In re County Prosecutor's Agents (Merit Sys. Bd. May 26, 1989) (slip op. at 1). The Board retained the numerical limitations on Prosecutor's Agents from N.J.S.A. 11:4-4(s).

The Board again addressed the status of Prosecutor's Agents on July 16, 2004, when it permitted Gloucester County to hire agents in excess of the number permitted by N.J.S.A. 11:4-4(s). In re Prosecutor's Agents, Gloucester County Prosecutor's Office (Merit Sys. Bd. Jul. 16, 2004) (slip op. at 7). It also advised the Department of Personnel "to undertake a review of the current regulations with a view toward proposing and adopting a rule that will prescribe numerical limits on the hiring of Prosecutor's Agents consistent with population changes and increased demands on law enforcement agencies." Id. at 8.

In accordance with this decision, the Department of Personnel issued a memorandum to all county prosecutors on October 19, 2006, concerning "what duties are appropriate to the unclassified title of Prosecutor's Agent." Enclosed was a title specification for the position developed by the Department. The memorandum stated: "This specification is currently in effect and will not affect current employees; however, it shall apply to any appointments made on or after today's date."

The Department of Personnel later conducted an audit of nine positions in the Cape May County Prosecutor's Office, and at its request, Johnson completed a position classification questionnaire on August 22, 2008. He reported that he spent 70% of his work time as "primary property and evidence custodian," with duties centered around the possession, organization, and maintenance of evidence; 10% as "systems manager for the prosecutors management information system, Promis/Gavel"; 10% as "information security representative"; and 10% performing "other duties," including accessing various criminal justice databases and training new investigators and detectives. Johnson's supervisor, the Lieutenant of County Investigators, wrote: "The most important duty of [Johnson's] position is that of evidence custodian. It includes the receiving, sorting and safe guarding [of] all evidence in criminal cases."

In a letter dated April 17, 2009, the Division of Local Human Resource Management (LHRM) informed Johnson that it had determined he was "appropriately classified in the classified title of Property Clerk" rather than as a Prosecutor's Agent. The letter further stated that the decision was effective from October 25, 2008. A separate letter notifying Cape May County of the change was sent on April 21, 2009.

As of April 30, 2009, the Department of Personnel's job specification for Prosecutor's Agent defined the position as follows: "Under the direction of the County Prosecutor, performs non-law enforcement duties to assist the Prosecutor in one or more of the following areas: trial preparation; administration; media/community relations; research and data analysis; does other related duties as required." The specification also listed several examples of work performed by Prosecutor's Agents:

Assists in the preparation of cases for legal action.

Gathers information and other data as requested by the Prosecutor.

May testify in Grand Jury and trial proceedings.

Researches and verifies information as requested by the Prosecutor.

Collects and organizes parole notification packets containing release information on sex offenders required to register under Megan's Law.

May participate in the issuance and execution of legal documents.

Obtains reports and other information as requested by ...

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