IN THE MATTER OF REALLOCATION OF JUDICIARY CLERK 1, JUDICIARY CLERK 2, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5248-18

IN THE MATTER OF
REALLOCATION OF JUDICIARY
CLERK 1, JUDICIARY CLERK 2,
JUDICIARY ACCOUNT CLERK 1,
COURT SERVICES REPRESENTATIVES,
AND JUDICIARY CLERK DRIVER
FROM THE COMPETITIVE TO
THE NON-COMPETITIVE DIVISION
OF THE CAREER SERVICE.
_____________________________________

Argued September 27, 2021 – Decided January 11, 2022

Before Judges Sumners, Vernoia and Firko.

On appeal from the New Jersey Civil Service
Commission, Docket No. 2018-1508.

Edwin F. Chociey, Jr. argued the cause for appellant
Administrative Office of the Courts (Riker, Danzig,
Scherer, Hyland & Perretti, LLP, attorneys; Edwin F.
Chociey, Jr., of counsel and on the briefs; Siobhan A.
Nolan, on the briefs).

David Beckett argued the cause for respondent Judicial
Council of Affiliated Unions (Beckett & Paris, LLC,
attorneys; David Beckett, of counsel and on the brief).
 Andrew J. Bruck, Acting Attorney General, attorney for
respondent New Jersey Civil Service Commission,
(Pamela N. Ullman, Deputy Attorney General, on the
statement in lieu brief.)

PER CURIAM

The June 19, 2019 final agency decision of the Civil Service Commission

(Commission) allowed the Judiciary, via the Administrative Office of the Courts

(AOC or "agency"), a one-year interim reallocation of several entry-level

support staff titles from the competitive to the noncompetitive division of the

career service––exempting the titles from competitive examination hiring

procedures––but denied the request for permanent reallocation of the titles. The

AOC appeals, contending the decision was arbitrary, capricious, or

unreasonable, arguing the Commission ignored substantial evidence, as well as

its own prior decisions allowing for reallocation of entry-level job titles. Based

upon the record on appeal, we remand so the Commission can explain why its

June 19 decision differed from its decisions before and after that ruling. The

Commission shall issue its remand decision within sixty days. We do not retain

jurisdiction.

I

We briefly summarize the facts that bring this dispute before us. On

November 17, 2016, the AOC, pursuant to N.J.A.C. 4A:3-1.2(c)(1) and (2),

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submitted a letter to the Commission's Division of Agency Services (Agency

Services) requesting the reallocation of several job titles from the Commission's

competitive division to the non-competitive division. The request included the

Judiciary "Support Staff Band Specification," a Commission-promulgated

document grouping similar titles ("job band" or "title series"),1 and a description

of their duties and qualifications ("specifications"). The document covers the

"Clerical, Administrative and Courtroom Support Track" of the support staff

band, consisting of four levels: basic non-keyboarding titles, including

Judiciary Clerk 1 and Court Services Representative; basic keyboarding titles,

including Judiciary Clerk 2 and Judiciary Account Clerk 1; "Journey" titles; and

"Mastery/Paraprofessional" titles. The designated support staff band includes

"the base and bilingual titles."

1
A "job band" is "a grouping of titles or title series into a single broad band
consisting of title levels with similar duties, responsibilities, and qualifications."
Commc'ns Workers of Am., AFL-CIO v. N.J. Civ. Serv. Comm'n, 234 N.J. 483,
551 (2018). The term "job band" was made defunct by the Court's decision in
Communication Workers of America, AFL-CIO, which invalidated the program
for which the term was adopted, and by the Commission's subsequent deletion
of the term from most Civil Service regulations. 51 N.J.R. 191(b) (Feb. 19,
2019). The closest currently in-use term is "title series," meaning "titles
involving the same kind of work and ranked according to level of difficulty and
responsibility[,]" N.J.A.C. 4A:1-1.3, for which "[a] single specification may be
used," N.J.A.C. 4A:3-3.2(c).
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 The titles included were "Judiciary Clerk 1, Court Services

Representative, Judiciary Clerk Driver, Judiciary Clerk 2 and Judiciary Account

Clerk 1, including the base and bilingual titles." Duties of level 1 titles include,

among other things:

• sorting, searching, and filing documents;
• answering routines questions;
• computing simple numerical data;
• operating photocopy machines and video or
audio recording equipment;
• storing, inventorying, and distributing materials,
parts, or supplies;
• recording applications, transactions, and
requests; and
• performing physical tasks as necessary to reach
or move job-related materials. 2

There are no minimal education or experience requirements for level 1 titles.

The job specifications require "competencies," such as: listen well, adequately

communicate ideas and information in writing using correct grammar, perform

basic arithmetic, understand written material, and manage and organize

information.

Duties of level 2 titles include, among other things:

• operating computers;

2
"Any one position may not include all of the tasks listed, nor do [these]
examples cover all" possible duties.

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4
 • providing information to the public;
• requesting needed information from the
appropriate parties;
• recording information into record-keeping or
accounting systems;
• typing narrative statements, reports,
correspondences, memoranda, warrants,
contracts, or other legal documents;
• typing statistical or technical documents;
• calculating attorneys' fees or court costs;
• scheduling and participating in team meetings;
• composing routine correspondence;
recording complaints;
• informing judges on the status of case-related
matters; and
• communicating with counsel.

There are no minimal education or experience requirements for level 2

titles. The job specifications require "competencies," such as: type twenty-five

words per minute; "identif[y] or solve[] problems in machines, computers, or

other technologies as they are related to performing tasks"; interact well and

tactfully with "different people from varied backgrounds and different

situations[,]" including team participation; "solve[] practical problems by

choosing appropriately from a variety of mathematical techniques such as

formulas and percentages." Level 2 also requires knowledge of how "social,

political, organizational, and technological systems work and" the ability to

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"operate[] effectively within them." Additionally, positions involving the

operation of a vehicle require a valid driver's license.

The AOC asserted that competitive testing for the titles was not

practicable due to their minimal requirements. It further claimed the

"[c]ertification procedures based on ranked eligible lists 3 have not or are not

likely to meet" the Judiciary's hiring needs, because:

[D]ue to the length of certifications, in some counties
the lists become stale while in other counties[] the lists
exhaust more quickly, and often bilingual lists exhaust
due to the number of candidates who apply. When lists
become exhausted, the Judiciary is required to request
another announcement through the Commission, which
has required the Judiciary to go without staff for long
periods of time, or to hire provisionally. Many of the
appointing authorities within the Judiciary are reluctant
to hire provisionally due to the potential issues with
provisionally appointed candidates not being reachable
through the exam process. Resources are needlessly
wasted when provisionals are appointed and ultimately
must be removed because they have not had the

3
"'Eligible list' means a roster compiled or approved by the [Commission] of
persons who are qualified for employment or reemployment[,]" while
"'[c]ertification' means a list of names presented to an appointing authority for
regular appointment." N.J.A.C. 4A:1-1.3. Generally, eligible persons are
ranked "in order of their scores" from competitive testing. N.J.A.C. 4A:4-
3.2(a)(2). "When a vacancy is to be filled in the competitive division of the
career service from an eligible list, the appointing authority shall request [from
the Commission] a certification of names for regular appointment." N.J.A.C.
4A:4-4.1(a). A certification "contain[s] the names and addresses of the eligibles
with the highest rankings on the appropriate [eligible] list." N.J.A.C. 4A:4 -
4.2(a).
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 opportunity to compete in a testing situation or they do
not pass or are not reachable on the resulting list. A
non-competitive hiring status will allow a more flexible
process for recruitment and selection than the
traditional civil service testing process provides.

As an alternative, the agency proposed that the Judiciary appointing

authorities would post vacancy notices as needed, human resources would work

with hiring managers and/or interview panels to develop hiring criteria, and

"[c]andidates would go through a structured interview process that [would]

allow appointing authorities to target candidates with the competencies needed"

and candidates would "be required to successfully pass a keyboarding

assessment." Additionally, the vacancy notices would be posted with language

informing applicants that "[s]hould another position become available within the

next five months . . . the applicant pool from this posting may be used to f ill

additional positions." The AOC reasoned this process would "provide the

appointing authorities the flexibility to utilize applicant pools for a short

duration to ensure there is a sufficient applicant pool" or post a new notice of

vacancy "in the event that a pool is insufficient."

The Judiciary Council of Affiliated Unions (JCAU) opposed the

application. It argued, in part, that the AOC's request was unsupported by data

or evidence and failed to address the titles with specificity.

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 To support its petition, the AOC subsequently submitted a chart of survey

results, which did not indicate when it was conducted, listing 128 vacancies by

county for the base and bilingual Judiciary Clerk 2 titles. 4 The AOC also

asserted "the length of time to hire through the certification process creates

recruitment problems." It claimed the time for requesting an announcement of

open competitive exams to promulgating new eligible lists took an average six -

and-half-months, which "is much too long if an appointing authority has

depleted or is close to depleting a list for a particular title."

Additionally, the AOC indicated that it had requested such

announcements with regard to the base and bilingual Judiciary Clerk 2 and

Judiciary Account Clerk 1 titles most years between 2012 and 2017. The AOC

claimed the three-year duration of eligible lists was "too long . . . [in] that as the

lists become older, more applicants do not respond to the position notification

or advise the Judiciary that they are not interested in the position[,]" explaining

that the "lack of response by applicants or applicants advising that they are no

longer interested in the position from an older list may become problematic even

4
A chart note states "that many vicinages elect to fill their vacancies using the
bilingual list, even if their vacancies are not specifically designated as bilingual
vacancies."
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for lists that appear to have sufficient numbers of eligible, for example [forty]

or [fifty] names, especially if there are multiple openings to fill."

The AOC also submitted a summary of a survey it conducted of all

appointing authorities, by county, to determine the status of the current job title

lists. The summary evidenced the paucity of eligible applicants from 2016 and

2017 for some counties but did not include any information on the base or

bilingual Judiciary Clerk 1, Court Services Representative, or Judiciary Clerk

Driver titles. The AOC argued the Commission had previously reallocated

similar titles "based on their not having any minimum education and/or

experience requirements or based on their only requiring a valid license."

On June 19, 2019, the Commission issued its final agency decision

reallocating the titles, but only on an interim basis. In making its decision, the

Commission rejected the recommendation of Agency Services that reallocation

be granted. Agency Services supported the AOC's reallocation request because:

(1) it was for entry-level titles "requiring skills best assessed by direct

observation during the working test period[,]"5 similar to executive branch titles

5
"'Working test period' means a part of the examination process after regular
appointment, during which time the work performance and conduct of the employee
is evaluated to determine if permanent status is merited." N.J.A.C. 4A:1-1.3.

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that have been reallocated to the noncompetitive division; and (2) the "ranked

eligible lists have not or are not likely to meet the needs of the appointing

authority due to such factors as salary, geographic locations, recruitment

problems, and working conditions." Agency Services "determined that despite

almost annual open competitive announcements for some of the subject titles,

the Judiciary continued to exhaust these lists, particularly in certain

[v]icinages."6

The Commission determined there was "not a sufficient basis on which to

reallocate the proposed titles to the noncompetitive division on a permanent

basis at this time." It explained:

Although the duties of the titles are basic and
elementary, this agency has been able to consistently
test for the possession of these basic skills in
competitive situations. Further, while the ranked
eligible lists may have, on some occasions, been unable
to meet the needs of the appointing authority due to
such factors as salary, geographic locations,
recruitment problems, and working conditions, the
Commission is reluctant at this time to permanently
reallocate these titles to the noncompetitive division
without first attempting to administratively address
these issues through other means to ensure that the State
constitutional mandate to competitively test to fill

6
Notably, the copy of the Agency Services memorandum in the record appears
to be incomplete. It is only a single page, and only discusses the first basis for
reallocation.

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 positions in the public services has been exhausted. In
this regard, the Commission notes that it is anticipated
that an open competitive examination for Judiciary
Clerk 2 is currently being processed and, after the
examination, an eligible list is expected to be
promulgated by September 2019.

However, in the interim, in order to meet the
Judiciary's current critical staffing needs, certification
procedures based on the existing ranked eligible list are
not likely to meet the needs of the appointing authority.
Under these circumstances, interim noncompetitive
status for the subject titles is appropriate in this matter.

The Commission did not affirmatively find that competitive examination

would be practicable after the interim reallocation ended. Rather, it found that

there was "not a sufficient basis" in the record for permanent reallocation,

finding "the ranked eligible lists may have, on some occasions, been unable to

meet" the Judiciary's needs, resulting in "current" staffing issues. The only

support that determination requires is a lack of evidence that permanent

reallocation is necessary. Thus, the Commission did not need substantial

evidence that permanent reallocation was unnecessary to justify its findings.

II

Before us, the AOC contends the Commission's decision to only grant

reallocation on an interim basis was arbitrary and unsupported by substantial

evidence. It argues the record established: (1) that certification procedures are

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inadequate to meet the Judiciary's needs; and (2) that competitive testing for

these positions is not practicable because they have minimal requirements.

Appellate review of an administrative agency decision is limited. In re

Herrmann, 192 N.J. 19, 27 (2007). A "strong presumption of reasonableness

attaches" to the Commission's decision. In re Carroll, 339 N.J. Super. 429, 437

(App. Div. 2001) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div.

1993)). Thus, we generally defer to final agency actions, only "reversing those

actions if they are 'arbitrary, capricious or unreasonable or [if the action] is not

supported by substantial credible evidence in the record as a whole.'" N.J. Soc'y

for Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-

85 (2008) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J.

571, 579-80 (1980)).

We must defer even if we would have reached a different result. In re

Carter, 191 N.J. 474, 483 (2007) (citing Greenwood v. State Police Training

Ctr., 127 N.J. 500, 513 (1992)). It is not our role to second-guess or substitute

our judgment for that of the agency and, therefore, we do not "engage in an

independent assessment of the evidence as if [we] were the court of first

instance." In re Taylor, 158 N.J. 644, 656 (1999) (quoting State v. Locurto, 157

N.J. 463, 471 (1999)). Despite that general deference to the agency's

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interpretations, this court is not bound by them. In re N.J.A.C. 7:1B-1.1 et seq.,

431 N.J. Super 100, 114 (App. Div. 2013); N.J. Chapter of Nat'l Ass'n of Indus.

and Office Parks v. N.J. Dep't of Envt'l Prot., 241 N.J. Super. 145, 165 (App.

Div. 1990) ("While we must defer to the agency's expertise, we need not

surrender to it.").

Our Supreme Court has recognized:

Although administrative agencies are entitled to
discretion in making decisions, that discretion is not
unbounded and must be exercised in a manner that will
facilitate judicial review. Administrative agencies
must "articulate the standards and principles that
govern their discretionary decisions in as much detail
as possible." Van Holten Group v. Elizabethtown
Water Co., 121 N.J. 48, 67 (1990). When the absence
of particular findings hinders or detracts from effective
appellate review, the court may remand the matter to
the agency for a clearer statement of findings and later
reconsideration. Application of Howard Sav. Inst., 32
N.J. 29, 53 (1960).

[In re Vey, 124 N.J. 534, 543-44 (1991).]

"Unexplained inconsistency is . . . a reason for holding an [agency's]

interpretation to be an arbitrary and capricious change from agency practice . . .

." Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967,

981 (2005). Thus, "when an agency changes its course, it must provide a

'reasoned analysis.'" Glukowsky v. Equity One, Inc., 180 N.J. 49, 66 (2004)

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(quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 57 (1983)).

The Commission is guided by Article VII, Section 1, Paragraph 2 of the

New Jersey Constitution, which provides:

Appointments and promotions in the civil service of the
State, and of such political subdivisions as may be
provided by law, shall be made according to merit and
fitness to be ascertained, as far as practicable, by
examination, which, as far as practicable, shall be
competitive; except that preference in appointments by
reason of active service in any branch of the military or
naval forces of the United States in time of war may be
provided by law.

Nevertheless, the Constitution "does not require that merit and fitness be

determined by competitive examination in every case, but only 'as far as

practicable.'" Newark Superior Officers Ass'n v. City of Newark, 98 N.J. 212,

232 (1985) (quoting N.J. Const. art. VII, § 1, ¶ 2).

Our Constitution "recognize[s] that although competitive examination

would be the general rule . . . , there would be situations where [it] would not be

practicable." Falcey v. Civ. Serv. Comm'n, 16 N.J. 117, 122-23 (1954). Thus,

"any waiver of traditional competitive examinations must, as a constitutional

matter, be based on their impracticality[,]" and on a title-by-title basis. In re

Reallocation of Prob. Officer, 441 N.J. Super. 434, 445 (App. Div. 2015). The

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constitutional competitive-examination mandate governs the outcome "over and

above [any] statutory and regulatory requirements." Id. at 450. Thus here, on

a title-by-title basis, "consideration must be given to whether the AOC has

demonstrated that it is impracticable for it to continue filling" these positions

"through open, competitive examinations." Ibid.

The Commission is also guided by statute and regulation. Passed in 1986,

the Civil Service Act Title established Title 11A of our state statutes, id. at 444,

and "governs civil service employment in New Jersey, which includes all

positions within state government and those within the political subdivisions

that choose to adopt it and be governed by its terms," Commc'ns Workers of

Am., AFL-CIO v. N.J. Civ. Serv. Comm'n, 234 N.J. at 522. It grants the

Commission the authority to:

a. Establish, administer, amend and continuously
review a State classification plan governing all
positions in State service and similar plans for political
subdivisions;

b. Establish, consolidate and abolish titles;

c. Ensure the grouping in a single title of positions with
similar qualifications, authority and responsibility;

d. Assign and reassign titles to appropriate positions;
and

e. Provide a specification for each title.

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 [N.J.S.A. 11A:3-1.]

The Commission is thus authorized to "[a]dopt and enforce rules to carry out

[the act] and to effectively implement a comprehensive personnel management

system." N.J.S.A. 11A:2-6(d).

Under N.J.A.C. 4A:3-1.2(c), "[a] job title may be placed in the

noncompetitive division on an ongoing or interim basis" when the Commission

determines "one or more" of three criteria are met. A finding that any or all of

these criteria are met allows either "ongoing or interim" reallocation, and, as

indicated by the use of the permissive phrase "may be placed . . . on an ongoing

or interim basis[,]" the regulation leaves this determination to the Commission's

discretion. Ibid. See also Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 325

(2000) ("Under the 'plain meaning' rule of statutory construction, the word 'may'

ordinarily is permissive and the word 'shall' generally is mandatory.").

Examining the three criteria permitting reallocation, it appears that each

might be read as stating different reasons why competitive examination is

impracticable. N.J.A.C. 4A:3-1.2(c)(2) and (3) both recognize that the

competitive examination and certification process is not practicable when it is

insufficient to meet an appointing authority's hiring needs. Subsection (c)(3)

applies where that insufficiency is due to "a need for immediate appointments

A-5248-18
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arising from a new legislative program or major agency reorganization[,]" which

would justify "limited, interim" reallocation. In re Reallocation of Prob. Officer,

441 N.J. at 447, 449. Subsection (c)(2) applies where that insufficiency is due

to "such factors as salary, geographic location, recruitment problems, and

working conditions[,]" which might justify "interim" reallocation t o fill

vacancies where the certification procedures "have not" met the appointing

authority's needs, and "ongoing" reallocation where they "are not likely to meet"

those needs moving forward.

The criteria in subsection (c)(1) is less self-explanatory: "Competitive

testing is not practicable due to the nature of the knowledge, skills, and abilities

associated with the job . . . ." Considering the Legislature's intention in creating

the noncompetitive division to provide for noncompetitive appointment to

"lower-level jobs" that "cannot properly be tested for," N.J.S.A. 11A:3-2.1(d),

this criterion was likely meant to cover such titles. But the question remains ,

what is it about any particular "lower-level" title that justifies it "cannot properly

be tested for."

A few weeks prior to argument on this appeal, the Commission reallocated

the payroll clerk title to the non-competitive division on a permanent basis. In

Re Reallocation of Payroll Clerk, No. 2022-312, 2021 N.J. CSC LEXIS 375

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(Sept. 7, 2021).7 The Commission explained that "[t]he subject title is an entry-

level position in which incumbents would receive on-the-job training while

performing activities related to routine clerical work including the review,

verification, and preparation of payroll or personnel records, keeping time and

work records and performing related duties." Ibid. It also referenced, but did

not detail, "urgent staffing needs" in the Department of Human Services, which

submitted the reallocation request. Ibid.

Akin to the final decision here, Agency Services recommended

reallocation on an ongoing basis, reasoning that "competitive testing is not

7
On September 29, 2021, the AOC filed a Rule 2:6-11(d) motion seeking
reconsideration of our clerk's office September 24, 2021 decision rejecting its
submission of In Re Reallocation of Payroll Clerk as an additional case citation
under Rule 1:36-3. We denied the motion because the decision was not a court
opinion and, thus, did not qualify as an unpublished opinion under Rule 1:36-3.
See Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 1:36 (2022)
("Administrative law opinions so published are not subject to the non-citation
ban of this rule because they are not court opinions.").
We also rejected the AOC's alternative argument that we accept its citation to
In Re Reallocation of Payroll Clerk pursuant to Rule 2:5-5(a). The argument
was not presented to the clerk's office but was set forth in its motion. Rule 2:5-
5(a) is a mechanism for "an alternative method for settling the record when the
issue is whether the transcript of sound or video recorded proceedings accurately
represents what was said." Pressler & Verniero, cmt. 1 on R. 2:5-5(a). Thus,
Rule 2:5-5(a) is inapplicable here.
Although we denied the motion, we reserved the right to consider any
administrative decision cited or not cited by the parties, or issued before or after
oral argument, that we determine is relevant to this appeal.
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practicable for the subject title as it has no education and experience

requirements, and the job specifications for the related titles have been updated."

Ibid. Specifically, "the experience requirement for Supervising Payroll Clerk

has been updated and the supervisory experience requirement has been removed

as none of the lower level titles, including Payroll Clerk, provide the opportunity

to gain the supervisory experience for advancement to that title." Id. at *1-2.

The reallocation request was unopposed. Id. at *2.

The Commission ruled:

Based upon the foregoing, ample reasons exist
for the reallocation of the proposed title to the non-
competitive division of the career service. This is an
entry-level title that does not have any experience
requirements. Consequently, there is no skill set to be
tested. Incumbents will gain the required skill set
during on-the-job training. Therefore, competitive
testing and certification procedures are not necessary.

[Id. at *2-3.]

From our reading, In re Reallocation of Payroll Clerk is consistent with

two relevant prior Commission decisions, which suggest permanent reallocation

of the subject titles here should have been granted. In In re Reallocation of

Security Guard & Security Guard (Bilingual in Spanish & English) from the

Competitive to the Non-Competitive Division of the Career Service, CSC

Docket No. 2015-1402 (Dec. 5, 2014), the Commission's reasoning for

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permanently reallocating the subject titles was that because they had "no

education, experience or license requirement[, . . . ] competitive testing [was]

impracticable." In In re Reallocation of Local Government Titles from the

Competitive to the Non-Competitive Division of the Career Service, the

Commission explained that it was permanently reallocating the subject titles

because "[t]here [were] no specific experience requirements for the titles at issue

and the only requirement [was] possession of education and/or certification.

Therefore, competitive testing [was] impracticable for these titles." No. 2015-

251, 2014 N.J. CSC LEXIS 572, at *4 (Aug. 4, 2014),

All three decisions are inconsistent with the Commission's decision in this

case. As in In re Reallocation of Payroll Clerk: (1) the titles at issue here do

not have any education or experience requirements; (2) Agency Services

recommended reallocation; and (3) the appointing authority was experiencing

"critical staffing needs." Seemingly, the only distinction between this case and

In re Reallocation of Payroll Clerk is that here the reallocation request was

opposed, while there it was not. Opposition to a reallocation application is not

a determinative factor, especially considering the state constitutional

requirement of competitive testing where "practicable," N.J. Const. art. VII, §

1, ¶ 2, and the legislative policy of exempting titles from competitive testing

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where it is in fact impracticable, N.J.S.A. 11A:3-2.1(d). Significantly, the

Commission's decisions do not acknowledge or offer any explanation for the

apparent inconsistency between its reallocation decisions. 8

We do not conclude that In re Reallocation of Payroll Clerk by itself

provides a basis for reversal and requires an order providing for permanent

reallocation of the subject titles in this appeal. The lack of education or

experience requirements, as argued by the AOC, does not necessarily

demonstrate that competitive testing is impracticable because "[e]valuation of

education, training or experience" is only one of several types of exams; others

include written tests, oral tests, physical performance tests, and "other

appropriate measures of knowledge, skills, and abilities." N.J.A.C. 4A:4-2.2.

On the other hand, competitive testing for lower-level positions without

education or experience requirements may be practicable. The noncompetitive

division was established "to provide for positions which cannot properly be

tested for, such as lower-level jobs which do not require significant education

8
In its reply to the AOC's motion for reconsideration, the Commission merely
asserts that In re Reallocation of Payroll Clerk, the application was decided "two
years after the decision on appeal" and does not pertain to the same facts or
involve the same parties.

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or experience, to be filled without the need of competitive examination."

N.J.S.A. 11A:3-2.1(d).

Because of inconsistencies between the decision on appeal and the other

noted Commission decisions regarding permanent reallocation of lower-level

job titles to the non-competitive division, a remand is necessary. Within sixty

days, the Commission shall issue a final agency decision explaining why the

factors and principles it applied in its other decisions allowing for reallocation

did not apply to the present situation. Of course, the Commission has the

discretion to reach a different conclusion on remand.

Reversed and remanded. We do not retain jurisdiction.

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