In the Matter of County Critical Infrastructure Coordinator Docket No (Merit System Board, decided January 31, 2007)

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1 In the Matter of County Critical Infrastructure Coordinator Docket No (Merit System Board, decided January 31, 2007) The Office of Homeland Security and Preparedness requests the reallocation of the title of County Critical Infrastructure Coordinator from the career to the unclassified service, pursuant to N.J.A.C. 4A:3-1.3(a)5. By way of background, in fiscal year 2004, the Office of the Attorney General s Homeland Security Grant Program provided monetary grants to numerous Counties to enhance their ability to prevent, detect, deter, respond to, and recover from threats and acts of terrorism. In conjunction with these grants, the Counties receiving such funding were required to hire a full-time Domestic Preparedness Planner and a full-time Critical Infrastructure Coordinator/Planner. Therefore, the Department of Personnel (DOP) created the titles of County Emergency Management Planner and County Critical Infrastructure Coordinator, effective January 10, 2004, and allocated these titles to the career service. At the time these titles were created, the Office of the Attorney General took no position regarding the class of service to which the titles would be allocated. One appointing authority, Essex County, requested that the title of County Emergency Management Planner be allocated to the unclassified service. However, the DOP denied Essex County s request, finding that Essex County had not demonstrated that this title met the criteria set forth in N.J.A.C. 4A:3-1.3 for allocation to the unclassified service. Subsequently, the Office of Homeland Security and Preparedness (OHSP) submitted the instant request to the Division of Human Resource Management for its consideration. 1 Because there was no statutory provision specifically designating the subject title as unclassified, the request was referred to the Merit System Board for a determination pursuant to N.J.A.C. 4A:3-1.3(a)5. In support of its request, the OHSP contends that incumbents in the subject title serve as the primary point of contact between the OHSP and facilities within the Counties that are identified as critical infrastructure. Incumbents are responsible for evaluating sensitive information and conducting vulnerability assessments regarding, inter alia, bridges, tunnels, airports, train stations, and chemical plants, within a County s borders. The 1 It is noted that the Office of Homeland Security and Preparedness initially requested that both the titles of County Emergency Management Planner and County Critical Infrastructure Coordinator be reallocated to the unclassified service. However, it is no longer pursuing its request with regard to the former title.

2 OHSP asserts that, in order to perform effectively, incumbents have access to highly sensitive information about the most critical aspects of the State s infrastructure. Thus, the OHSP argues that Counties must have the ability to dismiss at will any [County Critical Infrastructure Coordinator] who shows himself or herself to be unable or unwilling to appropriately handle access to sensitive information. The OHSP also maintains that incumbents are required to possess specific knowledge, skills and abilities that a test cannot measure or determine. It also notes that the OHSP has invested significant resources in providing specialized training for incumbents in this title, and it has provided the incumbents with specialized computer equipment to assist them in their ability to assess the vulnerability of the State s infrastructure. In addition, the OHSP reports that a number of those currently serving in the subject title have a background in law enforcement, enabling them to develop productive working relationships with County officials and the public. Finally, the OHSP emphasizes that the titles of all of its employees are allocated to the unclassified service. Prior to the commencement of this matter, the DOP had record of eight incumbents in the County Critical Infrastructure Coordinator title in the Counties of Hudson, Hunterdon, Middlesex, Morris, Passaic, Salem, Sussex, and Union. One incumbent, Michael Wolfe in Hunterdon County, was permanently appointed to the title effective April 25, The remaining incumbents received temporary appointments or were appointed provisionally, pending open-competitive examination procedures. At present, there are five active eligible lists for County Critical Infrastructure Coordinator for Hunterdon, 2 Morris, Passaic, Sussex and Warren 3 Counties. It is noted that all of the examinations have been administered as qualifying unassembled examinations (QUEs), where all eligibles who meet the minimum requirements for the title receive a score of Announcements for open-competitive examinations have also been issued for Hudson and Union Counties, but eligible lists have not yet issued for these jurisdictions. It is noted that examination and certification activity was placed on hold in May 2005, pending HRM s review of this matter and the outcome of the instant request before the Board. All Counties in the Merit System were notified of the pending request and given the opportunity to present their positions. It is noted that during the pendency of the instant matter, the Counties and/or the OHSP have advised of the existence of 2 Wolfe was appointed from the County Critical Infrastructure Coordinator (C6344F), Hunterdon County, eligible list. 3 Steven Padula was appointed from the County Critical Infrastructure Coordinator (C6352F), Warren County, eligible list effective April 4, However, he resigned in good standing on April 25, 2005.

3 additional incumbents in Atlantic, Bergen, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Warren Counties. 4 This is the first notification to the DOP regarding these appointments. In response, Sussex County contends that it permanently appointed Richard Ross to the subject title on April 15, In support, it submits a copy of Certification Number OL050671, which issued on March 28, 2005, from the eligible list for County Critical Infrastructure Coordinator (C6341F), Sussex County. Ross, a veteran, was tied as the first ranked eligible on the certification, and Sussex County presents documentation demonstrating that the other veteran who was tied for first was not interested in the position. It is noted, however, that DOP records indicate that Ross remains provisional in the title. Michael M. Rubbinaccio, the Morris County Prosecutor 5, expresses his support for the reallocation of the subject title to the unclassified service. He maintains that incumbents in the title perform vital tasks related to the protection of the State s critical infrastructure. He contends that [i]t is essential that we maintain the flexibility to identify the individuals capable of fulfilling the responsibilities of this position. Rubbinaccio also asserts that the duties of this new position are evolving, and it is necessary to continuously reassess and upgrade the skill sets necessary to satisfactorily perform the duties of the position. Theodore J. Romankow, President of the County Prosecutors Association of New Jersey, similarly supports the reallocation of this title to the unclassified service. He emphasizes that the County Prosecutor in each County was involved in evaluating the County Critical Infrastructure Coordinator position, identifying the skills necessary to perform the duties of that position, and selecting highly qualified individuals to fill the position. Romankow underscores the importance of being able to retain the selected individuals in the position. In accordance with N.J.S.A. 11A:3-6, a public hearing was conducted on December 20, 2006 to solicit comments from the public. At the hearing, Felix Demicco, the County Critical Infrastructure Coordinator with Morris County, expressed his support for the proposed reallocation, emphasizing the varied and unique background that is required to be successful in the title. 6 4 Somerset County, a non-civil service jurisdiction, also employs an individual in the subject title. 5 It is noted that the position of County Critical Infrastructure Coordinator is placed in the Prosecutor s Offices of the various Counties. 6 Although another incumbent in the title expressed his opposition to the proposed reallocation during the hearing, he subsequently verbally advised staff that he no longer wished to take a position on the issue.

4 Following the hearing, the OHSP provided additional information in support of the proposed reallocation. The OHSP notes that the County Critical Infrastructure Coordinator position is unique to the State of New Jersey and was created by the Office of Counter Terrorism and the Office of the Attorney General as part of the State Homeland Security Strategy. The OHSP also reiterates the sensitive nature of the title at issue and its position that it is not appropriate for testing and permanent appointment. It is noted that the Division of Human Resource Management supports the requested reallocation of this title. CONCLUSION In matters involving the question as to whether a particular title should be allocated to either the career or unclassified service, the starting point is the New Jersey Constitution, Article VII, sec. 1, par. 2, providing that: 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. It should be noted that, in matters concerning allocation to the unclassified service, a strict interpretation of merit system law is mandated. See In the Matter of Karl A. Shelley and Sharon K. Zimmerman, Docket No. A T2 (App. Div. March 20, 1996). In local service, N.J.S.A. 11A:3-5 provides that the unclassified service shall be limited to those titles it specifically designates and all other titles created by other statutes or as the Merit System Board may determine in accordance with criteria established by rule. N.J.A.C. 4A:3-1.1(a) provides that all job titles shall be allocated to the career service, except for those job titles allocated by the Merit System Board to the unclassified service pursuant to N.J.A.C. 4A: N.J.A.C. 4A:3-1.3(a) provides that a job title shall be allocated to the unclassified service when: 1) In State service, the title is so designated under N.J.S.A. 11A:3-4;

5 2) In local service, the title is so designated under N.J.S.A. 11A:3-5; 3) The title is designated unclassified by another specific statute; 4) A specific statute provides that incumbents in the title serve for a fixed term or at the pleasure of the appointing authority; or 5) The [Merit System] Board determines that it is not practicable to determine merit and fitness for appointment in or promotion to that title by examination and that it is not appropriate to make permanent appointments to the title. Our courts have recognized the State s strong public policy, as evinced by the State Constitution, favoring the inclusion of as many titles as possible in the career service. See Walsh v. Department of Civil Service, 32 N.J. Super. 39, (App. Div. 1954); Loboda v. Clark Township, 40 N.J. 424, 434 (1983); State v. Clark, 15 N.J. 334, 341 (1954); In the Matter of Hudson County Probation Department, 178 N.J. Super. 362, 371 (App. Div. 1981). This principle of ascertaining merit and fitness for promotions and appointments through an open-competitive examination process is at the very heart of our merit system. There is no question that the title of County Critical Infrastructure Coordinator is not specifically designated as unclassified by N.J.S.A. 11A:3-5. There is also no dispute that there is no specific statutory authority for the creation of an unclassified title of County Critical Infrastructure Coordinator. Likewise, there is no statute providing for the appointment of an incumbent in the title to serve for a fixed term or at the pleasure of an appointing authority. In sum, none of these statutory preconditions for the allocation of a title to the unclassified service have been met. Thus, the real issue is whether the title requires possession of knowledge and skills and the exercise of duties and functions so unique that merit and fitness for the position cannot be ascertained through a competitive examination process and, accordingly, allocation of the title to the unclassified service is warranted. In Ogden v. Department of Civil Service, 77 N.J. Super. 296 (App. Div. 1962), cert. denied, 39 N.J. 238 (1963), the Appellate Division of the Superior Court of New Jersey held that, given the complex nature of the duties and the uniqueness of the position of General Superintendent and Chief Engineer of the Passaic Valley Water Commission, it was not practical to determine

6 merit and fitness for the position by examination or minimum qualification requirements. In that case, the subject position was the highest ranking fulltime position in the employ of the Water Commission, answerable only to the four commissioners whose role was analogous to that of a governing body. Moreover, since the commissioners themselves served only part-time in the role of trustees and lacked technical training, they necessarily relied on the Superintendent and Chief Engineer for guidance. As the court observed in this regard: [The General Superintendent and Chief Engineer] advises the commissioners on the regular operations of the Commission, on the budget of the North Jersey Water Supply District, and on the need for and feasibility of expansion. He works with them and the bonding attorneys in determining what rates will be necessary to pay off the bonds, and whether such rates are feasible. He is the representative of the Commission in dealing with the officials of the many other municipalities in which the Water Commission supplies water. Id. at 301. Additionally, concurring with the findings made by the Civil Service Commission (predecessor of the Merit System Board), the court noted the many complex duties and required abilities of the General Superintendent and Chief Engineer, involving knowledge of engineering, administration, fiscal policies, expansion programs, personnel problems, and public relations. The court further underscored the importance of the confidential relationship that must exist between the Commissioners and the General Superintendent and Chief Engineer and the fact that the Commissioners must lean heavily on this individual for advice and guidance in creating and implementing policy. Furthermore, adding to the complexity of the position was the consideration that the position incumbent would be responsible for leading a workforce of 275 employees. See also, In the Matter of Deputy County Administrator, Passaic County (MSB, decided March 23, 2005). Similarly, in the instant matter, the County argues that incumbents in the title of County Critical Infrastructure Coordinator must have the ability to perform varied complex and highly sensitive duties, including evaluating information regarding the most critical aspects of the State s infrastructure, performing risk assessments, utilizing specialized computer equipment, and working effectively with the law enforcement community, the OHSP, and federal authorities. The individual designated as the County Critical Infrastructure Coordinator must also be able to effectively manage strategies, budgets and spending plans required by State and federal grants, and he or

7 she must be able to access and evaluate sensitive data and formulate feasible protection plans. Given the varied and confidential nature of the duties of a County Critical Infrastructure Coordinator and the requirement that incumbents in this title possess qualities enabling them to foster a productive working relationship with high ranking members of law enforcement, the OHSP, and other State and federal homeland security authorities, the requisite skills and abilities are not amenable to merit system testing. Thus, the Board finds that the title of County Critical Infrastructure Coordinator should be reallocated to the unclassified service. Nevertheless, the Board emphasizes that this reallocation shall be prospective in nature, and will have no adverse impact on current incumbents who have attained their positions through merit system procedures. In this regard, N.J.A.C. 4A:3-1.1(c) provides: When a title is reallocated from the career service to the unclassified service by the Board or by legislative enactment, incumbents with permanent status in the title shall retain all career service rights so long as they remain in that title. Accordingly, while the title of County Critical Infrastructure Coordinator is reallocated to the unclassified service, the current incumbent in that title with permanent status in the career service, Michael Wolfe, shall retain all rights relative to his permanent status so long as he remains in his title. In addition, the Board orders the Division of Human Resource Information Services to approve the disposition of the March 28, 2005 certification of the County Critical Infrastructure Coordinator (C6341F), Sussex County, eligible list and record the permanent appointment of Richard Ross to that title. In this regard, the Board notes that this certification was issued prior to the implementation of a hold on certification activity, and it was returned to the DOP prior to notification of this action. Finally, in light of this decision and the hold that has been placed on examination and certification activity, it is appropriate to refund the application fees paid by applicants for the following examination symbols: C6471G, C6340F, C6432G, and C6890H. These lists and/or examinations should also be cancelled. ORDER Therefore, it is ordered that the title of County Critical Infrastructure Coordinator be reallocated to the unclassified service.

8 It is further ordered that the Division of Human Resource Information Services approve the disposition of the March 28, 2005 certification of the County Critical Infrastructure Coordinator (C6341F), Sussex County, eligible list. Moreover, it is ordered that Richard Ross and Michael Wolfe retain all career service rights so long as they remain in their current titles. Finally, it is ordered that the Division of Selection Services notify applicants of the cancellation of the above-noted examinations and lists and refund application fees as indicated above. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.