A main goal of the New Jersey Civil Service Act is to ensure that employment decisions are based on merit and fitness, and therefore to prevent discrimination, political cronyism, corruption and nepotism from being a consideration. Thus, the Legislature has given civil service employees the ability to appeal most employer imposed discipline to the New Jersey Civil Service Commission.
Right to Appeal Major Discipline to the New Jersey Civil Service Commission.
Qualified candidates for permanent, career, classified New Jersey Civil Service employment who meet the Civil Service definition are eligible to receive a veterans and disabled veterans preference, which increases their ranks on eligible lists. The courts have explained that the purpose of the preference is to “reward those whose military commitments, commissioned or enlisted, were of such a nature and duration as to interfere substantially with an individual’s civilian status.”
Veterans Eligible for Preference
Not all “veterans”, as the term is generally used, are eligible for a New Jersey Civil Service preference. Only “veterans” and “disabled veterans” of certain military operations as defined by the New Jersey Civil Service Act are eligible. Thus, veterans of some military operations, such as, for example, Operations Earnest Will, Nimble Archer and Praying Mantis, in the Persian Gulf Region in 1987 and 1988, are excluded.
This is Robert Chewning from McLaughlin & Nardi. I am here today to talk about Civil Service Commission appeals, specifically list bypass appeals.
Collectively, New Jersey state and local governments are the largest employer in the State. Most of these jurisdictions are governed by the New Jersey Civil Service Act. In New Jersey Civil Service jurisdictions, hiring, firing, promotion and discipline is governed by the Civil Service Act and Regulations. This makes the Civil Service System one of the most important elements in New Jersey employment law.
The Use of Eligible Lists in Hiring and Promotion
Candidates for initial hiring and promotion in the permanent, career, unclassified civil service are selected and appointed based on their placement on eligible lists (also referred to as “certifications”). There are five types of eligible lists: Open competitive lists, promotional lists, regular reemployment lists, police and fire reemployment lists, and special reemployment lists.
The key to New Jersey Civil Service hiring and promotion is the examination. The State Constitution and New Jersey Civil Service Act require merit-based appointments based, whenever possible, on examinations.
Announcements. The New Jersey Civil Service Commission is responsible for administrating examinations which fairly test applicants’ knowledge, skills and abilities for the job. Announcements are posted on the Commission’s website, and provided by the employer. Announcements include title, salary information, admission qualifications, filing information, and duties and responsibilities. No unannounced requirements can be considered. Applications must be filed by the announced date. The applicant must be a resident of New Jersey and the specified local jurisdiction, unless a different residency requirement is specified or there are not enough available qualified residents. Applicants for municipal law enforcement or firefighter positions must be under 35 for open competitive examinations, except that applicants under 45 may subtract prior law enforcement experience to meet the 35 year age requirement. Veterans may subtract their service from their age to determine eligibility.
Types of Examinations. Examinations may be written; oral; performance evaluation; physical performance tests; assessment exercises; and evaluation of education, training and experience. The goal is to objectively measure an applicant’s fitness and merit. Thus, while subjectivity in developing an examination is not forbidden, it must be limited.
New Jersey’s Department of Environmental Protection (“NJDEP”) regulates the transportation of waste in New Jersey. This involves a significant licensing process including an A-901 application (including Personal History Disclosure Statements for all owners, officers and key employees and a Business Disclosure Statement, as well as second-level application documents for parent or related companies).
That regulation is now being extended to companies which transport soil and fill. This may have a significant impact on contractors and landscapers who were not previously required to obtain licensing with the DEP. Indeed, Governor Murphy signed bill A-4267 into law on January 21, 2020. This law expands the NJDEP’s regulatory powers to those companies which provide soil and fill recycling services. Any business which transports, collects, processes, sells, stores, or disposes of soil and/or fill recyclable materials must be licensed with and approved by the NJDEP.
The law defines “soil and fill recyclable materials” as:
Because the purpose of the New Jersey Civil Service System is to remove politics, nepotism and favoritism from the hiring and disciplinary processes to ensure that employment decisions are based on merit and fitness, just cause must be found for imposing discipline. And because the employer is the government, all discipline, New Jersey’s Court’s have explained, “is governed by principles of notice, due process and fundamental fairness.” The key to this is notice and the opportunity to be heard at a hearing.
Written Notice and the Opportunity for a Hearing Before Appointing Authority
Before disciplinary action may be taken against a permanent civil service employee or during an employee’s working test period, the employee must get written notice and the opportunity for a hearing on major discipline. This notice comes in the form of a “Preliminary Notice of Disciplinary Action” (“PNDA”). The PNDA must set forth the charges and give a specification. It must give the employee the opportunity for a hearing prior to major discipline. The PDNA should give the employee notice of all the charges and specifications against him so he can prepare a defense.
Criminal charges against public employees can have serious consequences under New Jersey civil service law. In this post, we’ll examine some of those consequences.
Suspensions of New Jersey Civil Service Employees While Criminal Charges Are Pending
First, if a New Jersey civil service employee is facing criminal charges, she can be suspended while the charges are pending. The employee must be served with a preliminary notice of disciplinary action (PNDA). The PNDA must advise her that she may be subject to being fired if the charges are upheld, and that she has the right to consult with an attorney. The employee may request a hearing about the suspension. If no request is made within five days the appointing authority may issue a final notice of disciplinary action (FNDA). If the employee is charged with a third degree crime or higher, if she is charged with a crime of the fourth degree on the job, or if the charges are “directly related to the job,” the employee may be suspended indefinitely until the charges are resolved.
New Jersey Civil Service law establishes procedures for hiring and promoting government employees in New Jersey state and local government civil service jurisdictions.
In Civil Service, “appointment” means getting a job, whether through initial hiring, promotion, transfer or otherwise. All initial and subsequent appointments must be submitted for review and approval of the New Jersey Civil Service Commission. The Commission will notify the employer of whether it has approved or disapproved the action, and the reasons for any disapproval. The employer then provides written notice to the affected employees.