The Probation Association of New Jersey (PANJ), represented by Daniel J. Zirrith, Esq., appeals the denial of its grievance at Step One.

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1 In the Matter of Essential Employees, Judiciary CSC Docket No (Civil Service Commission, decided February 25, 2009) The Probation Association of New Jersey (PANJ), represented by Daniel J. Zirrith, Esq., appeals the denial of its grievance at Step One. On July 31, 2006, the PANJ filed a grievance on behalf of its members who were required to work during the budget-related State government shutdown from July 3 to July 7, The PANJ argued that these employees had not previously been designated as essential employees in accordance with N.J.A.C. 4A:6-2.5 and its collective bargaining agreement. In this regard, the PANJ contended that these provisions required that employees be notified that they have been designated essential employees in October of each year, and the employees at issue had not been so designated until the State government shutdown. Following a Step One hearing, the appellant s grievance was denied. Subsequently, the parties mutually agreed to forego Step Two of the grievance proceeding and proceed directly to Step Three. Although the Step Three hearing was held on January 8, 2007, PANJ elected to appeal directly to the Civil Service Commission (Commission) when it did not receive a timely determination of the grievance. See N.J.A.C. 4A:2-3.5(e) and N.J.A.C. 4A:2-3.7(b). It is noted that the appointing authority attempted to schedule another hearing date prior to its issuance of a decision, but the PANJ opted to pursue its appeal before the Commission. In the instant appeal, the PANJ maintains that all of its member employees who were required to work during the July 2006 State government shutdown, with the exception of those assigned to the Camden Probation Residential Education Program (PREP), were not properly designated essential employees. It contends that its collective bargaining agreement and N.J.A.C. 4A:6-2.5 require that employees be notified if they are deemed essential employees during periods of inclement weather or other emergency conditions by October of each preceding year. Here, the PANJ emphasizes that these employees were notified that they were required to work some or all of the State government shutdown period during the week of July 3 through July 7, Since these employees were required to work without properly being designated as essential employees, the PANJ requests that they be compensated for the hours they unnecessarily worked. In response, the appointing authority submits Executive Order No. 17 (2006), issued by Governor Jon S. Corzine, as well as a series of Orders issued by the Chief Justice of the New Jersey Supreme Court, Deborah Poritz,

2 during the State government shutdown. It argues that the Executive Order provided for the closing of all State government operations except for emergent court matters and such other essential functions and supporting operations as may be determined by the Chief Justice. Thus, the appointing authority argues that the employees at issue were properly designated as essential employees during the State government shutdown, and they were appropriately required to report to duty. In addition, the appointing authority contends that all employees received their regular compensation during the period of the government shutdown, whether or not they were required to work. Since the employees at issue in the instant matter were, thus, paid their regular rate of compensation, the appointing authority asserts that neither their collective bargaining agreement nor N.J.A.C. 4A:6-2.5 entitles them to any additional compensation. In addition, the appointing authority notes that a similar claim was unsuccessful before the Public Employment Relations Commission (PERC). Specifically, in In the Matter of State of New Jersey (Department of Corrections) and P.B.A. Local 105, Docket No. SN (April 26, 2007), PERC determined that employees who were required to work during the State government shutdown were not entitled to any additional compensation by virtue of the fact that those employees who did not work also received the regular rate of compensation during the shutdown period. Finally, the appointing authority argues that it is entitled to designate employees as essential at any time; it asserts that it is not the case that it is only entitled to make such a designation once per year by October. It contends that this assertion is supported by a September 20, 2006 memorandum from the Department of Personnel 1, which gave State appointing authorities until December 1, 2006 to update their records regarding which employees are deemed essential and under what circumstances they are considered essential. In response, the PANJ maintains that N.J.A.C. 4A:6-2.5 clearly requires appointing authorities to notify employees, the Civil Service Commission, and the Office of Emergency Management of employees it deems essential each calendar year by the preceding October. In other words, the PANJ asserts that, in order for an employee to have been deemed essential during the July 2006 shutdown, notification had to be made by 1 On June 30, 2008, Public Law 2008, Chapter 29 was signed into law and took effect, changing the Merit System Board to the Civil Service Commission, abolishing the Department of Personnel and transferring its functions, powers and duties primarily to the Civil Service Commission. In this decision, the former names will be used to refer to actions which took place prior to June 30, 2008.

3 October Finally, the PANJ suggests that the remedy for the violation of N.J.A.C. 4A:6-2.5 be left to an arbitrator. 2 CONCLUSION N.J.A.C. 4A:2-3.7(b)2 provides that grievance appeals must present issues of general applicability in the interpretation of law, rule, or policy. N.J.A.C. 4A:2-3.7(f)1 provides that, in grievance matters, the employee shall have the burden of proof. N.J.A.C. 4A:2-3.7(b) provides that grievances may be appealed to the Commissioner [of Personnel]. The rule further provides: 1. The Commissioner shall review the appeal on a written record or such other proceeding as the Commissioner directs and render the final administrative decision. 2. Grievance appeals must present issues of general applicability in the interpretation of law, rule, or policy. This standard is in keeping with the established grievance and minor disciplinary procedure policy that such actions should terminate at the departmental level. As previously noted, on June 30, 2008, Public Law 2008, Chapter 29 was signed into law and took effect, changing the Merit System Board to the Civil Service Commission, abolishing the Department of Personnel and transferring its functions, powers and duties primarily to the Civil Service Commission. The newly amended N.J.S.A. 11A:11-3 provides, in pertinent part, that any law, rule, regulation, order, reorganization plan, contract, document, judicial or administrative proceeding, appropriation or otherwise which refers to the Department of Personnel, Commissioner of Personnel or Merit System Board shall mean the Civil Service Commission. Hence, the instant matter is being reviewed by the Civil Service Commission (Commission) in lieu of the Commissioner of Personnel. Generally, the Commission will not disturb appointing authority determinations in grievance proceedings unless there is substantial credible evidence that such determinations were motivated by invidious discrimination considerations, such as age, race or gender, or were in conflict with civil service rules. In the instant matter, the PANJ asserts that the designation of certain employees as essential employees during the July 2006 State government shutdown was in conflict with N.J.A.C. 4A: It is noted that the PANJ also filed for arbitration of the issues raised in the instant matter, pursuant to the collective bargaining agreement. However, the PANJ advises that the arbitration has been placed on hold, pending the outcome of the instant appeal.

4 Thus, the grievance has presented an issue of general applicability in the interpretation of a rule, and it will be reviewed on its merits. N.J.A.C. 4A:6-2.5 provides, in pertinent part: (c) Each State department and agency shall annually review its criteria for the designation of essential attendance employees and, based on these criteria, update its roster of such employees. Employees so designated shall be notified no later than October 31 of each year of this designation and shall at that time be provided with a copy of the department or agency s Essential Employee Attendance Plan. The Plan shall include the responsibilities, requirements and expectations of such employees in the event that a period of inclement weather or other adverse situation requires the curtailment of State operations or services. 1. Each State department and agency shall provide the Department of Personnel and affected union representatives with its updated roster of essential attendance employees no later than November 15 of each year. The Department of Personnel shall make this information available to the Office of Emergency Management. (d) An essential attendance employee who is required to work in accordance with an Essential Employee Attendance Plan shall be compensated at the regular rate of pay for such work. See N.J.A.C. 4A:3-5 for overtime compensation for work performed by non-exempt employees in excess of the regular workweek As an initial matter, it is evident that the purpose of requiring an Essential Employee Attendance Plan is to ensure that each essential employee, as well as the Civil Service Commission and the affected collective bargaining units, are aware, in advance, of those employees who are designated as essential. In this fashion, in the event of a weather-related or other emergency shutdown of government operations, all necessary parties are on notice of which employees are required to report to work. Thus, the PANJ correctly argues that appointing authorities are required to file these plans and designate which employees are essential by October 31 of the year preceding the year in which that designation will be effective. However, the special circumstances surrounding the July 2006 Stategovernment shutdown must be recognized. This shutdown was not due to a

5 weather-related emergency. Rather, it was due to the failure of the State government to adopt a balanced budget prior to the start of Fiscal Year 2007, as constitutionally required. During the time frame when no budget was in place, the State government shut down its operations with limited exceptions. It cannot be ignored that Executive Order No. 17 (2006), which effectuated the State government shutdown, expressly provides that: 4. Services and functions of State government directly related to the preservation and protection of human life and safety; the protection of property, including State property; the adoption of the State General Appropriations Law; and such functions of the Judicial Branch as determined by the Chief Justice, shall be deemed essential and shall continue without interruption during the period in which there is no General Appropriations Law for Fiscal Year More specifically, but not by way of limitation, the following services and functions of State government are hereby deemed essential: a. Activities required to protect life, health, safety, and property; b. Care of all prisoners, patients, and other residents in the care or custody of the State at correctional facilities, developmental centers, juvenile detention centers, veterans homes, psychiatric hospitals, and State-operated residential facilities; c. Activities essential to ensure continued public health and safety, including, but not limited to, disease prevention and control, health maintenance, and the safe use of food, drugs, and hazardous materials; Protection of State lands, buildings, equipment, and other property owned, leased, or operated by the State; Child welfare involving the Office of Children s Services; d. Continuation of transportation safety functions and the protection of transport property; e. Environmental emergency response and enforcement;

6 f. Activities necessary to preserve and protect the State s financial assets and resources; Emergency and disaster response activities; Services to process payments that can be made without [a] General Appropriations Law; Information technology, accounting, and payroll services necessary to support essential functions as described in this Order; Court-mandated activities and appearances, as required; and Supervisory and oversight functions necessary to ensure the provision of essential services as described in this Order. 5. The head of each department or agency shall designate those employees whose services are considered essential to the health, safety, and welfare of the people of New Jersey in accordance with criteria provided by the Office of the Governor. Employees so designated shall report to work and perform such duties and responsibilities as the respective department or agency heads shall direct. In addition, such other activities and personnel as the Governor may determine to be essential to the health, safety, and welfare of the people of New Jersey are deemed essential for purposes of this Order. In accordance with this Executive Order, the Chief Justice of the New Jersey Supreme Court issued a series of Orders setting forth the functions of the Judicial Branch... [which] shall be deemed essential and continue without interruption during the period in which there is no General Appropriations Law for Fiscal Year These Orders resulted in the employees at issue being deemed essential during the shutdown. Based on the plain language of the above Executive Order, it is clear that the Governor intended that certain government functions continue without interruption during the budget-related government shutdown. While these functions may have differed from those contained in agencies Essential Employee Attendance Plans, Executive Order No. 17 (2006) was issued pursuant to the valid powers vested in the Governor. See N.J.S.A. App. A:9-33, et seq. Clearly, the Governor possesses the power and authority, in times

7 of emergency, to determine which government operations must continue in order to avert further disaster. Thus, the Governor validly declared that certain functions of the Judicial Branch of government, as determined by the Chief Justice, were essential during the July 2006 shutdown, and the employees at issue in the instant matter were, therefore, properly required to report to duty in order to perform these essential government functions. Finally, it must be emphasized that neither Executive Order No. 17 (2006) nor N.J.A.C. 4A:6-2.5 support the PANJ s position that the employees are entitled to any additional compensation, above and beyond their regular rates, due to the work performed during the shutdown. Accordingly, the PANJ has failed to meet its burden of proof in this matter, and the Commission finds that the employees at issue were properly required to perform essential government operations during the State government shutdown in July ORDER Therefore, it is ordered that this appeal be denied. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.