In the Matter of Sheila Bogda, Secretarial Assistant 2 (Non-Stenographic), Department of Children and Families CSC Docket No. 2009-1016 (Civil Service Commission, decided October 22, 2008) The Department of Children and Families (DCF) seeks administrative relief with regard to the determination of the Division of State Human Resource Management (SHRM) to reclassify the position of Sheila Bogda from Secretarial Assistant 2 (Non-Stenographic) to Secretarial Assistant 3 (Non-Stenographic). By way of background, Ms. Bogda received a provisional appointment, pending promotional examination procedures, as a Secretarial Assistant 2 (Non-Stenographic) on November 17, 1990. She was permanently appointed to that title on January 16, 1991. As a result of a promotional transfer from the Department of Community Affairs (DCA) to DCF, Ms. Bogda was provisionally appointed, pending promotional procedures, to the title of Secretarial Assistant 1 on March 5, 2005. In other words, prior to her transfer to the DCF and provisional appointment to Secretarial Assistant 1 in March 2005, Ms. Bogda had over 14 years of permanent service as a Secretarial Assistant 2 (Non-Stenographic). Thereafter, the promotional examination for Secretarial Assistant 1 (PS8663K) was announced with a closing date of December 21, 2005. The examination was conducted as an unassembled examination where candidates were ranked on the basis of their education and experience. However, candidates who ranked on the list and were certified for appointment consideration were also required to undergo a performance test in stenography administered by the appointing authority. A total of 11 employees applied for the examination that resulted in an employment roster of 9 eligibles with an expiration date of June 14, 2009. Ms. Bogda achieved a score of 88.340 and ranked 1 st on the resultant list. On September 20, 2006, certification (PS061884) was issued containing the names of five eligibles for Ms. Bogda s provisional position. 1 In disposing of the certification on December 21, 2006, the appointing authority indicated that Ms. Bogda as well as two other eligibles failed the performance test in stenography and the remaining two eligibles did not appear for an interview. Accordingly, their names were removed from the list, but Ms. Bogda was retained provisionally in the title of Secretarial Assistant 1. 1 The names of the remaining eligibles were not certified as they had indicated interest in other geographic locations.
Thereafter, Ms. Bogda appealed the removal of her name from the list to the Merit System Board (Board) 2. Specifically, she argued that the vacancy announcement for the position was misleading because it did not clearly indicate that it was for a stenography position and that none of the interviewers for the position asked her any questions regarding her ability to perform stenography. Ms. Bogda noted that she had been serving provisionally in the position since March 5, 2005, at that point in time, which was for more than a year, and the Director, who was her immediate supervisor, never required the use of stenography. She also emphasized that she would not have applied for nor accepted a provisional appointment to the Secretarial Assistant 1 title had she known that it required stenography. In this regard, she explained that she had ranked 1 st on the promotional list for Secretarial Assistant 1 (Non-Stenographic) (PS3886D) when she was at DCA and she would not have jeopardized her previous rank and position with DCA had she been aware that her provisional appointment with DCF was for a stenographic position. Ms. Bogda also stated that she attempted to learn some form of stenography prior to the July 11, 2006 performance examination date, but discovered that many local colleges do not offer courses in stenography because it is not used extensively in today s workforce. Thus, she obtained a self taught book for ABC shorthand, but it was overwhelming to learn so much in so little time. Ms. Bogda further noted her puzzlement as to why the position was benchmarked for stenography and why her name was certified in September 2006, but she was advised in December 2006 that her name was being removed because she failed the stenography portion of the test. As a remedy, Ms. Bogda requested that her position be reclassified to Secretarial Assistant 1 (Non-Stenographic) and that she be permanently appointed to that title based on her 18 months of provisional service as a Secretarial Assistant 1 where she was never required to perform stenography. Further, she emphasized that this situation caused her stress because she was unsure of her job stability and had relied on the income of a Secretarial Assistant 1 (salary range A20) for almost two years. Thus, the possibility of being returned to her prior permanent title of Secretarial Assistant 2 (Non- Stenographic) (salary range A17) and the decrease in salary would cause her financial hardship. Ms. Bogda underscored that she had become adjusted to the higher salary. Therefore, she maintained that because of errors in the system, stenography not being appropriate for her position, and the failure to have the position appropriately classified at an earlier time, which she 2 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.
claimed she had requested, her position should be reclassified to Secretarial Assistant 1 (Non-Stenographic). By letter dated January 23, 2007, staff from the Division of Merit System Practices and Labor Relations (MSPLR) advised Ms. Bogda that it would not be forwarding her appeal to the Board for review since she did not challenge her failure of the stenography test. However, given the issues she raised regarding the propriety of the classification of her position with respect to utilization of stenography, the issue of her classification was referred to SHRM for review. According to information provided as part of her classification review, Ms. Bogda was reassigned from working for the Area Director Oretha Wofford, Camden Area to the Local Office Manager, Camden East, Resource Family Support Unit effective April 2, 2007 and she was returned to her permanent title of Secretarial Assistant 2 (Non- Stenographic) on April 28, 2007. Subsequently, on September 24, 2007 and October 19, 2007, SHRM conducted an onsite review of Ms. Bogda s position. In its June 19, 2008 determination, SHRM found that since Ms. Bogda did not report to the organizational equivalent of a deputy commissioner, assistant commissioner, or division director, she would not be properly classified as a Secretarial Assistant 1 (Non-Stenographic). It also determined that since Ms. Bogda did not provide clerical duties in support of a deputy or assistant director or their organizational equivalent, her current permanent title of Secretarial Assistant 2 (Non-Stenographic) was not appropriate since she supports the position of a local office manager. Consequently, DCF was advised that Ms. Bogda s position must be reclassified to the title Secretarial Assistant 3 (Non-Stenographic) or she must be assigned duties commensurate with her permanent title of Secretarial 2 (Non-Stenographic). In its request for administrative relief, the appointing authority presents that Ms. Bogda was permanently appointed to the title of Secretarial Assistant 2 (Non-Stenographic) on January 16, 1991 and has approximately 17 years of title seniority. It notes that the Secretarial Assistant title series is an entitlement series, in that the level of Secretarial Assistant is determined by the level of the supervisor to whom the Secretarial Assistant reports. In this case, Ms. Bogda reports to a Local Office Manager and SHRM determined that her position should be classified as a Secretarial Assistant 3 (Non-Stenographic). The appointing emphasizes that it is not contesting the outcome of this decision but it is rather concerned with the effect of its implementation based on Ms. Bodga s tenure rights as a Secretarial Assistant 2 (Non-Stenographic). As an entitlement position, it states that it cannot assign Ms. Bogda duties consistent with a Secretarial Assistant 2 (Non-Stenographic). However, the appointing authority states that to effect a downward reclassification would call for formal layoff procedures. Thus, given Ms. Bogda s 17 years of title seniority, it is likely
that she would laterally displace a less senior and otherwise innocent Secretarial Assistant 2 (Non-Stenographic), who in turn, would displace and demote another otherwise innocent Secretarial Assistant 3 (Non- Stenographic). The appointing authority does not feel that it is in the best interests of the department or its employees to implement layoff procedures. Therefore, in order to balance the State classification plan and the tenure rights of Ms. Bogda, the appointing authority requests that Ms. Bogda s position be classified as Secretarial Assistant 2 (Non-Stenographic) for this incumbent only. It states that once Ms. Bogda vacates the position, it may then be classified at the Secretarial Assistant 3 (Non-Stenographic) level. In support of its request, the appointing authority states that in In the Matter of Eloise Davis, City of Newark (Commissioner of Personnel, decided March 28, 1990), the Commissioner of Personnel held harmless an employee with nearly 20 years of service in her permanent title in lieu of layoff procedures. CONCLUSION Initially, Executive Order No. 70 (1992), Consolidation of Personnel Functions, resulted in substantial amendments to the provisions that govern the classification appeal procedures contained in N.J.A.C. 4A:3-3.9. Specifically, State appointing authorities were no longer permitted to render first-level determinations on classification appeals. Rather, the process was revised to have an agency representative ensure that all needed information concerning classification appeals was submitted by an employee and then the appointing authority would forward the appeal to the Department of Personnel (DOP) for a determination. In explaining the amended rules, the Board noted that State appointing authorities would no longer be able to appeal a first-level determination by the [DOP]. See 25 N.J.R. 1916. It is evident in this case that while the appointing authority styles the instant petition as one for administrative relief, it is essentially an appeal of SHRM s classification determination. Clearly, as a result of SHRM s classification determination, the appointing authority desires to have an incumbent Secretarial Assistant 2 (Non-Stenographic), who reports to a Local Office Manager, remain in that title, even though the Local Office Manager is not entitled to a Secretarial Assistant 2. Thus, while it acknowledges that the position is misclassified, the appointing authority requests that it remain misclassified since Ms. Bogda has extensive permanent service as a Secretarial Assistant 2 (Non-Stenographic) and it does not want to implement demotional and potentially layoff procedures. Regardless of these equitable concerns, the Commission finds that this is an appeal of Ms. Bogda s classification. Therefore, the appointing authority does not have standing to file an appeal and this matter should be dismissed on those grounds alone. See N.J.A.C. 4A:3-3.9.
It is undisputed that pursuant to Salary Administration Memorandum (SAM) #9-88, Supplement #1, the method of designating a position to a Secretarial Assistant 1, 2, or 3 level title is derived from the premise that as the rank of a supervisor increases, there is a corresponding increase in the responsibilities for the associated secretarial position. See e.g., In the Matter of Lori Henderson (Commissioner of Personnel, decided March 20, 2001). Accordingly, since the level of Ms. Bogda s supervisor decreased from an Area Director to a Local Office Manager, there was a corresponding decrease in the associated responsibilities for the secretarial position. Consequently, by retaining Ms. Bogda at the Secretarial Assistant 2 (Non-Stenographic) title, she is being overcompensated in relation to the duties she is performing. Clearly, this is an unfortunate situation, particularly given that Ms. Bogda left the DCA to take a promotion and, through no fault of her own is now faced with the possibility of being demoted to a lower title than the one where she has been permanent for more than 17 years. However, for the reasons stated below, the Commission is constrained from providing the appointing authority with the remedy it seeks. It is important to note that the appointing authority did not provide any information for the Commission to review with respect to the circumstances surrounding Ms. Bogda s transfer from the DCA, her provisional appointment to Secretarial Assistant 1, why it utilized that title if her position did not require stenography, the circumstances surrounding her appeal of that matter that resulted in the issue of her classification being called into question, and why Area Director Oretha Wofford apparently reassigned her two months after the issue of her proper classification was referred to SHRM for review. While an appointing authority has no obligation to retain provisional appointees, it is noted that all five of the eligibles on the Secretarial Assistant 1 certification (PS061884) were removed and only one other certification (PS070906) was issued to another location preference that resulted in one appointment and one additional removal. Therefore, the Secretarial Assistant 1 (PS8663K) list was incomplete. Since there is no record of the remaining two eligibles requesting a provisional appointment, the appointing authority would not have been compelled to return Ms. Bogda to her permanent title. In fact, it did not do so until Wofford reassigned her four months after the Secretarial Assistant 1 certification (PS061884) was disposed. Further, she could have remained provisionally in her position as a Secretarial Assistant 1, presumably working for the Area Director, until the results of the classification study were completed. Instead, Ms. Bogda was evidently reassigned from what appears to be, at least from the perspective of the level of Secretarial Assistant entitlement, a proper classification, albeit a provisional appointment, on April 2, 2007 to
work for a Local Office Manager. Without further explanation as to why the Area Director reassigned Ms. Bogda, the Commission is reluctant to accept the appointing authority s argument that it now cannot assign her duties consistent with her permanent title of Secretarial Assistant 2 (Non- Stenographic). Although not presented by the appointing authority in this record, the Commission s sua sponte review of her prior appeal submissions in the matter that was referred to SHRM suggests that Wofford advised Ms. Bogda that the position she had encumbered in the Camden Area Office was being reclassified, which resulted in her reassignment to a position where she would be improperly classified. Clearly, Ms. Bogda s dilemma is the result of the appointing authority s reassignment of her to a position that is not commensurate with her permanent title. Thus, the appointing authority s solution to have Ms. Bogda remain misclassified, when she has rights associated with her permanent title of Secretarial Assistant 2 (Non- Stenographic), is not acceptable. Indeed, it is entirely possible that Ms. Bogda desires to work at a level commensurate with her classification. The Commission is also not persuaded that the situation in Davis, supra, provides a basis for the equitable remedy sought by the appointing authority. While it is true that the Commissioner permitted Ms. Davis position to remain classified as a Receptionist/Food Service Worker for that incumbent only based on her nearly 20 years of service in that title, the facts of this case do not warrant a similar result. The present matter is distinguishable in that it involves a State service entitlement title where the duties of the secretarial position increase or decrease depending upon the level of the supervisor. The Commission is reluctant to provide such a drastic remedy in situations involving entitlement title series as it could result in the severe undermining of the State Classification Plan and skewing of the compensation system. Therefore, Ms. Bogda should be either reassigned to a position where she would be properly classified as a Secretarial Assistant 2 (Non-Stenographic) or the appointing authority needs to implement demotional proceedings. See N.J.A.C. 4A:8-2.1, et seq., and N.J.A.C. 4A:4-7.8. One additional matter warrants comments. The Commission is cognizant of the fact that through no fault of her own, Ms. Bogda may be adversely affected financially as a result of the classification decision. Clearly, Ms. Bogda raised substantial concerns regarding the appropriateness of the stenography requirement in her initial appeal to the Board that resulted in the subsequent classification review. Indeed, her argument that the Secretarial Assistant 1 title was not appropriate is entirely plausible, particularly given the fact that she was never required to perform stenography while serving in her provisional capacity. Thus, consistent with Commissioner of Personnel decisions regarding classification reviews that result in demotions in local service, if the appointing authority
opts to retain her in her current assignment, Ms. Bogda s title is to be reclassified as Secretarial Assistant 3 (Non-Stenographic), but she should not suffer any loss in salary due to these circumstances beyond her control. See In the Matter of Jacqueline Murphy (Commission of Personnel, decided May 23, 2006) and In the Matter of Deborah Romano (Commissioner of Personnel, decided April 18, 2006) (Appropriate to utilize layoff procedures where classification review finds incumbent performing duties of lower level titles and appointing authority does not change the incumbent s job assignments, but appropriate to minimize loss in salary). Therefore, should Ms. Bogda be retained in her current assignment, her title is to be reclassified as Secretarial Assistant 3 (Non-Stenographic); however, her current salary of $55,161.41 is to be red-circled until such time that it falls into the 10 th step of salary range of the title of Secretarial Assistant 3 (Non-Stenographic). ORDER Therefore, it is ordered that this request be denied and that Ms. Bogda be reassigned to the proper level of supervisor who is entitled to a Secretarial Assistant 2 (Non-Stenographic) or the appointing authority should implement demotional proceedings and reclassify Ms. Bogda s position to Secretarial Assistant 3 (Non-Stenographic). However, if Ms. Bogda remains in her assignment as a Secretarial Assistant 3 (Non-Stenographic), her current salary is to be red-circled. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.