IN THE MATTER OF THE REALLOCATION OF THE PROBATION OFFICER AND PROBATION OFFICER, BILINGUAL IN SPANISH AND ENGLISH TITLES FROM THE COMPETITIVE TO THE NON-COMPETITIVE DIVISION OF THE CAREER SERVICE
Argued April 22, 2015
Approved for Publication July 22, 2015.
On appeal from the New Jersey Civil Service Commission, Docket No. 2013-3251.
Lynsey A. Stehling argued the cause for appellant Probation Association of New Jersey ( Law Offices of Daniel J. Zirrith LLC, attorneys; Daniel J. Zirrith, of counsel; Ms. Stehling, on the brief).
Todd A. Wigder, Deputy Attorney General, argued the cause for respondent New Jersey Civil Service Commission ( John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Wigder, on the brief).
Before Judges ALVAREZ, WAUGH, and CARROLL. The opinion of the court was delivered by WAUGH, J.A.D.
[441 N.J.Super. 436] WAUGH, J.A.D.
The Probation Association of New Jersey (Association) appeals the final administrative agency decision of the New Jersey Civil Service Commission (Commission) concerning the manner in [441 N.J.Super. 437] which the Administrative Office of the Courts (AOC) selects and appoints candidates for the titles of Probation Officer and Probation Officer, Bilingual in Spanish and English (Bilingual Probation Officer). We reverse and remand for further consideration consistent with this opinion.
We discern the following facts and procedural history from the record on appeal.
On December 5, 2011, pursuant to N.J.A.C. 4A:1-4.3, the AOC requested the Commission to establish a one-year pilot program to replace competitive testing for the Probation Officer and Bilingual Probation Officer titles with an evaluation system. The AOC explained that the pilot program was necessary because " at least four vicinages [had] exhausted [their] current pool and several others [were] close to exhausting their pools" for the Bilingual Probation Officer title. The AOC made no
such factual assertion with respect to the Probation Officer title.
The proposed program would replace the traditional system of competitive testing that is generally used throughout the State government with an evaluation program designed to focus on a candidate's communication skills, personal motivation, interpersonal skills, analytical skills, reasoning ability, personal development, and time management skills. Candidates' credentials would be reviewed and scored based on education and work experience. The cover letters and resumes would be evaluated and rated based on the number of errors in spelling, grammar, and punctuation. Candidates with the highest scoring resumes would be selected for a structured panel interview, be required to complete a timed writing sample, and be evaluated for promptness and neatness. Successful candidates would return for a second structured interview, [441 N.J.Super. 438] after which selected finalists would receive offers of employment. The program would be administered by vicinage or a regional group of vicinages, as appropriate. The AOC's Division of Equal Employment Opportunity/Affirmative Action would review the candidate pools for diversity, and preference for veterans would be taken into consideration.
The purpose of the proposed system was to allow for " a more flexible process for recruitment and selection than the traditional civil service testing process provides." The AOC was particularly interested in oral examinations, which it believed to be " a critical element of the selection process" and which the Commission would not be able to administer because of the large number of candidates. In addition, the AOC explained that " the flexibility of the proposed pilot program would allow vicinages the opportunity to proactively recruit before their candidate pool is empty," whereas the Commission only administers its examinations at set intervals.
The proposal was opposed by the Association, which submitted opposition to the Commission. The Association argued that the proposal violated article VII, section 1, paragraph 2 of the New Jersey Constitution, which requires public employees to be selected on the basis of " merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive." It further argued that the AOC had not established sufficient need for the change and that past instances of noncompetitive hiring had not been successful. Finally, the Association called for a fact-finding hearing in the Office of Administrative Law (OAL). The Association subsequently argued that any problem caused when hiring pools run low could be solved by interim, noncompetitive appointments pursuant to N.J.A.C. 4A:3-1.2.
On June 21, following further submissions by the parties and the AOC's acceptance of modifications suggested by the Commission's staff, the Commission issued a final administrative order approving the pilot program. The year-long pilot program was [441 N.J.Super. 439] originally to have been implemented on July 1, 2012, but the Commission subsequently delayed the implementation date to November 1 at the AOC's request.
In its decision, the Commission concluded that the program was consistent with N.J.A.C. 4A:3-1.2(c)(2), which allows a job title to be placed " in the noncompetitive division on an ongoing or interim basis" if the Commission determines " that it is appropriate
to make permanent appointments to the title and . . . [c]ertification procedures based on ranked eligible lists have not or are not likely to meet the needs of appointing authorities due to such factors as salary, geographic location, recruitment problems, and working conditions." It explained:
In this regard, the AOC has indicated that it has experienced problems maintaining a sufficient pool of qualified and interested candidates in all geographic locations during the duration of eligible lists resulting from competitive testing. Indeed, one of the primary goals of the pilot program is to address this difficulty by providing the [AOC] with a way in which to continuously recruit qualified applicants . . . with announcements directed to particular regions of the State on an as-needed basis.
The Commission found that the program would involve " structured recruitment and selection," which would focus on " six broad-based competencies for successful performance in the . . . titles," namely, communication, personal motivation, interpersonal skills, analysis and reasoning, self-development, and time management. " The competencies and assigned weights [were] consistent with a job analysis performed by the Division of Selection Services in 2009 for the affected titles."
The program's success was to be evaluated by comparing the previous years' and the pilot program's appointment demographics, termination demographics, and discipline demographics. The timeliness of appointments would also be compared, " considering average recruitment time, average time prior to appointment, average turnaround time for bilingual test results, and average turnaround time for appointments." Lastly, managers and supervisors would be surveyed " regarding [the] quality, success, and commitment of [the] employees hired."
[441 N.J.Super. 440] The Commission explained that the major benefits of the program would be
the provision of greater flexibility in the recruitment and selection process for both the applicants and the AOC. In this regard, the process will allow a consistently refreshed pool of applicants to be considered for positions in specific geographic locations. This will provide more opportunities for individuals interested in pursuing a career in this field as their application opportunities will not be limited to the set time frames within which the Commission announces and administers open competitive examinations for the titles, which may not necessarily coincide with time period of peak interest, such as college graduation. The AOC will likewise benefit from a fresh pool of applicants and less likelihood of the exhaustion of the candidate pool with interest in less populated or popular geographic areas of the State.
On May 21, 2013, less than seven months into the pilot program, the AOC applied for permanent reallocation of the Probation Officer and Bilingual Probation Officer titles from the Commission's competitive division to its noncompetitive division. In support of its application, the AOC reported on the implementation of the pilot program.
According to its report, the AOC developed, posted, and distributed a statewide notice of vacancy permitting candidates to apply for positions in up to four vicinages. Resumes were assigned to appropriate vicinages for review and ranking under the uniform scoring system developed by the AOC with assistance from the Commission's staff. Candidate information was entered into a centralized database.
The AOC then scheduled regional recruitment events. Candidates scoring five
or better on their resume and all veterans were invited to attend. The candidates were scheduled in groups of ten at hourly intervals. After check-in and an informational presentation, each candidate participated in a structured interview, completed an essay, and was then free to leave.
During the structured interview, candidates were asked the same series of questions at each event. Panelists were provided with a response guide to ensure uniform, statewide scoring. The writing sample topic was the same at each event. There was also a scoring guide for the essays.
[441 N.J.Super. 441] Candidates were assigned a final score based on their performance at the recruitment event. Seventy-five percent of the score was based on the structured interview, ten percent on the writing sample, five percent on promptness, and ten percent on attention to detail. Candidates scoring 60 or below were no longer considered for appointment. The remaining candidates were then banded into five numerical categories for the purpose of creating candidate pools of three or more candidates. If there were fewer than three candidates in a band, candidates from the next lower band could be included to bring the pool up to three. Veterans scoring 61 or above received preference regardless of score.
The AOC provided the Commission with the results of the pilot program, based on the evaluation criteria established in its June 21, 2012 decision. Of 2401 applicants, 523 were selected to attend one of the recruitment events, which were held in Burlington, Camden, Ocean, Passaic, and Somerset counties. The process resulted in forty-six appointments over a six-month period, in ...