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Communications Workers of America v. New Jersey Dept. of Personnel5/11/1998
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.
I.
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 . . . 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 " working test period following regular appointment of four months, which may be extended to six months at the discretion of the commissioner." N
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