(Merit System Board, decided April 7, 2004)

In the Matter of Joseph Freitas, III and Maria Todaro, Superintendent of Weights and Measures (PC1814D), Union County DOP Docket No. 2003-2834 (Merit System Board, decided April 7, 2004) Joseph Freitas, III and Maria Todaro, represented by David Corrigan, Esq., appeal the eligibility of Michael Florio for the promotional examination for Superintendent of Weights and Measures (PC1814D), Union County. These appeals have been consolidated due to common issues presented by the appellants. By way of background, the promotional examination for Superintendent of Weights and Measures was open to all employees in the competitive division who were currently serving in the title, Assistant Superintendent of Weights and Measures, and possessed an aggregate of one year of continuous permanent service as of the November 21, 2002 closing date. The appellants and Michael Florio, the provisional Superintendent of Weights and Measures, submitted applications and were admitted to the subject promotional examination. Previously, Michael Florio had been provisionally appointed as an Assistant Superintendent of Weights and Measures, effective May 30, 1998, pending an opencompetitive examination. This provisional appointment generated an opencompetitive examination under symbol number C6160B, with closing date of December 19, 2000. Assistant Superintendent of Weights and Measures required three years of experience in servicing and repairing, testing, or calibrating weighing and measuring devices. Thirty credit hours from an accredited college or university in the fields of Engineering, Physics, Electronics or Mathematics could be substituted for one year of the indicated experience. Mr. Florio was the only applicant for this examination, which was open to residents of Union County. Mr. Florio indicated on his original application that he possessed a Bachelor s degree in Management and experience as a provisional Assistant Superintendent of Weights and Measures (5/98 to closing date), Restaurant Owner (2/96 to 3/98) and Meat Market Manager (11/93 to 2/96). He described experience testing, fixing and calibrating scales as both a Restaurant Owner and Meat Market Manager. The Division of Selection Services concluded that this experience satisfied the announced minimum requirements for Assistant Superintendent of Weights and Measurements. An open-competitive examination was administered on June 6, 2001; Mr. Florio passed that examination with a score of 90.000, and an eligible list was promulgated on August 2, 2001, containing the name of one qualified candidate (Michael Florio). Mr. Florio subsequently received a regular appointment to the title, Assistant Superintendent of Weights and Measures, effective August 6, 2001. Mr. Florio was provisionally appointed to the Superintendent of Weights and

Measures title on July 15, 2002. The announcement for Superintendent of Weights and Measures closed November 21, 2002. Department of Personnel records reveal that the subject promotional list promulgated on March 20, 2003, with appellants Freitas and Todaro ranked number one and two, non-veteran, and Florio at number three, non-veteran, respectively. Mr. Florio was permanently appointed to the subject title from that list, effective March 24, 2003, and the two appellants remain on the list as interested eligibles. The subject promotional eligible list does not expire until March 2006. On appeal to the Merit System Board, Mr. Freitas contends that Union County illegally appointed Michael Florio as Superintendent of Weights and Measures in that he did not meet the minimum requirements as set forth in N.J.A.C. 4A:4-1.5; N.J.A.C. 4A:4-6.1(a)1; and N.J.S.A. 11A:4-13(b). He further contends that DOP was informed of violations inherent in Mr. Florio s initial appointment to Assistant Superintendent of Weights and Measures, including that he was hired not meeting the minimum requirements as well as his having held a provisional title for three years in violation of N.J.S.A. 11A:4-13(b). Finally, Mr. Freitas contends that Union County further violated State laws and the Civil Service Act when it bypassed more senior, experienced and qualified candidates in that the County did not: promote on the basis of relative knowledge, skills and abilities; failed to encourage and reward meritorious performance by employees in the public service; and failed to meet the spirit of Civil Service legislation which strives to keep positions in the career service beyond political control, partisanship and personal favoritism in order to secure the best public service. Ms. Todaro, represented by David Corrigan, Esq., also contends that the job specification for Superintendent of Weights and Measures calls for five years of experience in servicing, repairing, testing or calibrating weighing and measuring devices. She also cites N.J.A.C. 4A:4-1.5, claiming that a provisional appointee must meet the job requirements as listed in the job specification. She claims that Mr. Florio did not acquire the requisite experience until May 9, 2003, five years after he was hired by Union County. Both appellants further argue that Mr. Florio did not satisfy the experience requirement for Assistant Superintendent of Weights and Measures, and that his appointment was a violation of N.J.A.C. 4A:4-6.1(a)1. The appellants assert that prior to his appointment to the Assistant Superintendent of Weights and Measures title, Mr. Florio had not once performed some of the most basic important duties required of a Weights and Measures officer and, as a result, has only the most rudimentary notion of what the job entails. Further, the appellants argue that Mr. Florio did not satisfy the open-competitive requirements for Assistant Superintendent of Weights and Measures and that, consequently, he should not have permanent status in the Assistant Superintendent of Weights and Measures title to qualify for the subject promotional examination. Finally, the appellants argue that Mr. Florio barely had the one year of permanent status in that title to qualify for the subject promotional examination.

The appointing authority, represented by Frank G. Capece, Esq., asserts that Michael Florio s appointment to the subject title was proper and in accordance with civil service procedures. At the time of the subject provisional appointment, Harold Gibson, the Director of Law and Public Safety, interviewed the qualified individuals, Messrs. Florio and Freitas and Ms. Todaro, and on the basis of the interviews, recommended to the County Manager that Mr. Florio was the best choice for the provisional appointment. In making his recommendation, Mr. Gibson set forth his dissatisfaction with the specific interviews of Todaro and Freitas. The recommendation was approved by the County Manager and Mr. Florio received the provisional appointment, effective July 15, 2002. The permanent appointment of Mr. Florio, after the promotional examination was conducted and an eligible roster promulgated, was effected pursuant to N.J.S.A. 11A:4-8, commonly known as the Rule of Three. Accordingly, the County asserts that the appointment was not in violation of any Department of Personnel rules as alleged by Mr. Freitas and Ms. Todaro. The Policemen s Benevolent Association, Local 203, represented by Robert W. Alviene, President, also claims, in a letter dated February 19, 2004, that Mr. Florio does not possess the requirements for the position of Superintendent of Weights and Measures. N.J.A.C. 4A:4-2.6(a) provides that applicants shall meet all requirements specified in the promotional examination announcement by the closing date for filing applications. The year in grade requirement may be waived to completion of the working test period. N.J.A.C. 4A:4-1.5 requires that appointees meet the minimum qualifications for the title. N.J.A.C. 4A:4-2.4 provides that if a title which is the subject of a promotional examination is part of a title series, then the examination shall be open to one of the following: 1. The next lower in-series title used in the local jurisdiction; 2. The next two lower in-series titles used in the local jurisdiction; or 3. All applicants in the unit scope who meet the open competitive requirements and all applicants in the next lower or next two lower in-series titles used in the local jurisdiction. CONCLUSION The Board notes that each examination is announced as a separate entity and Mr. Florio s previous eligibility to an examination for the title of Assistant Superintendent of Weights and Measures has no bearing on the instant matter nor is that determination currently before the Board. The Board notes that Mr. Florio was the provisional appointee to the Assistant Superintendent of Weights and Measures title, pending an open-competitive examination. The Division of Selection Services accepted his positions as Restaurant Owner and Meat Market Manager, both of which Mr. Florio described on his original application as involving experience testing, fixing and calibrating scales. The Board further notes that Mr. Florio also passed the examination for the Assistant Superintendent of Weights and

Measures title, and that he was permanently appointed to this title, effective August 6, 2001. As to appellants argument that Mr. Florio did not meet the requirements listed in the job specification for provisional appointment to the Superintendent of Weights and Measures title, the Board notes that N.J.A.C. 4A:4-2.6, Eligibility for Promotional Examination, requires applicants to meet the requirements in the announcement. While Mr. Florio did not possess a full year in grade at the time of his provisional appointment, N.J.A.C. 4A:4-2.6(g) permits waiver of the year in grade in such cases where an incomplete eligible list either existed or was anticipated. The record supports that this criterion was met. In any event, as noted above, the announced requirement was one year of continuous permanent service in the Assistant Superintendent of Weights and Measures title. Appellants essentially contend that a provisional appointee to the Superintendent of Weights and Measures title would have to meet the experience requirements as listed in the job specification. While this would be correct for a provisional appointment pending open competitive examination, it is not required for a provisional appointment pending promotional examination. Thus, reliance on the open competitive job requirements is misplaced in the case of in-line promotional titles. N.J.A.C. 4A:4-2.5 clearly differentiates between promotional eligibility based on service in the lower or two lower in-series title(s) and promotional eligibility based on meeting the open competitive (job specification) requirements. Assistant Superintendent of Weights and Measures is clearly the inline title to Superintendent of Weights and Measures. The Appellate Division of Superior Court has recently affirmed the Department of Personnel s long-standing practice of the use of promotional eligibility based on title rather than job specification requirements. See In the Matter of Objection to Eligibility Determination by the New Jersey State Parole Board for Promotion into the District Parole Supervisor Title Docket No. A-1116-02T3 (App. Div. February 10, 2004). Further, it would be unreasonable to require a provisional appointee to meet a stricter standard than that required for permanent appointment. With regard to his permanent appointment, Mr. Florio possessed in excess of the requisite one year of permanent status in the Assistant Superintendent of Weights and Measures title as of the November 21, 2002 closing date to qualify for the subject promotional examination. Mr. Florio and appellants were placed on the eligible list for consideration and were certified to the appointing authority. Mr. Florio was subsequently appointed to the subject promotional title in accordance with N.J.A.C. 4A:4-4.8(a)3, known as the rule of three. N.J.A.C. 4A:4-4.8(a)3 states that an appointing authority shall be entitled to, from promotional and opencompetitive eligible lists, the names of three interested eligibles for the first permanent appointment, and the name of one additional interested eligible for each additional permanent appointment. Although seniority is a factor in the scoring of

promotional examinations, there is nothing in either N.J.S.A. 11A or N.J.A.C. 4A which requires an appointing authority to promote an individual based solely on seniority or the number of years spent serving in a particular career service title. The appellants have failed to demonstrate that Mr. Florio s appointment was in violation of any civil service law or rules. Neither have they shown that that their non-appointment was in violation of merit system rules. A thorough review of all material presented indicates that the determination of the Division of Selection Services is supported by the record. Thus, the appellants have failed to support their burden of proof in this matter. ORDER Therefore, it is ordered that these appeals be denied. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.