In the Matter of Sheriff’s Officers and County Correction Officers Layoff, Passaic County Sheriff’s Office DOP Docket Nos. 2008-3322, 2008-3641, 2008-3642, 2008-3643, 2008-3644, 2008-3645, 2008-3646, and 2008-3647 (Merit System Board, decided March 26, 2008)

Various parties impacted by the layoffs in the Passaic County Sheriff’s Office petition the Merit System Board (Board) for review and relief: 1) The New Jersey Policemen’s Benevolent Association (PBA), Local 197 (Local 197), on behalf of County Correction Officers Rocco Cammalleri, Matthew Celmer, Christine Coleman, James Elliot, Carlo Galizia, Jason Heese, Sebastian Indomenico, Daniel Ishak, Jakari Lee, Vincent Leto, Joseph Petriello, Tressy Smith, John Sroka, Claudio Tundo, Frank Warther, and Matthew Wojak, represented by Anthony J. Pope, Esq., petition the Board for a stay of the layoff of County Correction Officers in the Sheriff’s Office’s Office; 2) Matthew Celmer, Ruben Gilgorri, Jason Heese, Sebastian Indomenico, Jakari Lee, Vincent Leto, Enid Mitchell, Joseph Petriello, Tressy Smith, Claudio Tundo, Frank Warther, and Matthew Wojak, represented by Allan C. Roth, Esq., appeal their layoffs as County Correction Officers, Sheriff’s Office’s Office; 3) James Racanelli appeals his layoff as a County Correction Officer, Sheriff’s Office’s Office; 4) James Acito, Joseph Barrise, Melissa Corrado, Christopher Diamond, Anthony Ezmat, Michael Fattal, Roscoe Grant, Nicholas Klein, Anthony Potenzone, Zivojin Savkov, and Robert Torres, Sheriff’s Officers, represented by John Segreto, Esq., and Osvaldo Vergel, represented by Daniel J. Zirrith, Esq., appeal the determination that they had not completed their working test period in the title of Sheriff’s Officer; 5) Zivojin Savkov and Robert Torres appeal the date of their lateral title change from County Correction Officer to Sheriff’s Officer; 6) Christopher Patacco petitions the Board for reconsideration of In the Matter of Sheriff’s Officers and County Correction Officers (MSB, decided February 27, 2008) (Sheriff’s Officers and County Correction Officers Relief), which denied his request to change the date of his lateral title change from County Correction Officer to Sheriff’s Officer; 7) Gabriel Galeano, represented by Craig S. Gumpel, Esq., requests that his title be laterally changed from County Correction Officer to Sheriff’s Officer with a retroactive appointment date of February 27, 2003; 8) James Acito, Joseph Barrise, and Nicholas Klein, represented by John Segreto, Esq., and Jason Ekkers, pro se, appeal the determination that they are not eligible to be placed on the Statewide Eligible List for Law Enforcement Officers (Rice Bill List) as Sheriff’s Officers if they choose not to return to their former County Correction Officer title and be laid off. These matters have been consolidated due to common issues presented.

By way of background, on December 12, 2007, the Passaic County Sheriff’s Office (Sheriff’s Office) submitted a layoff plan to the Department of Personnel (DOP), proposing the layoff of one Telephone System Installer Repairer, one Public Safety Telecommunicator, three Maintenance Repairers, and four County Correction Lieutenants, effective March 3, 2008. The Sheriff’s Office layoff plan detailed actions it took, pursuant to N.J.A.C. 4A:8-1.2, to lessen the possibility of layoffs, including implementing a hiring freeze and separating non-permanent employees. The Sheriff’s Office indicated that on December 12, 2007 it officially notified in writing PBA Local 197 and Local 286 and the Passaic County Professional Union (PCPU) of the pending action. In correspondence dated January 7, 2008, the Sheriff’s Office advised the DOP that the unions whose members are likely to be affected by the pending layoff had been consulted at length. Specifically, it stated that meetings were held on November 28, 2007, November 29, 2007, December 6, 2007 and December 13, 2007. The meeting on December 6, 2007 was open to all employees to answer questions and solicit suggests from union members and officials. Subsequently, in correspondence dated December 27, 2007, Local 197 posed seven questions to the DOP’s Division of Local Human Resource Management (LHRM) that it wanted addressed concerning the proposed layoffs. On January 22, 2008, the LHRM responded to these questions, advising that the Sheriff’ Office notifies the DOP of targeted positions and that the DOP issues letters of determination to ensure that the rights of affected employees are properly exercised. In response to a question concerning the “Modified Course for Sheriff’s Officers” (GAP) training, the LHRM explained that this program is administered by the Police Training Commission, but that employees affected by the layoff receive determination letters from the DOP to ensure that their civil service rights are properly exercised. Local 197 was also advised that the DOP would administer the layoff and that affected employees would be notified by the DOP of their final status prior to the effective date of the layoff. It was also emphasized that the Sheriff’s Office was required to provide the DOP with a confirmation of layoff memorandum to confirm every resulting personnel action. Local 197 also questioned why the DOP permitted the Sheriff’s Office to laterally transfer certain employees and why it permitted the hiring of temporary and interim employees. LHRM explained that the Sheriff’s Office petitioned the Board to permit the actions as a past practice and noted that the Board instructed the Sheriff’s Office that the practice of lateral transfers is not the exclusive means for the appointment of Sheriff’s Officer. See In the Matter of Lateral Title Change from County Correction Officer to Sheriff’s Officer (MSB, decided November 21, 2007) (Lateral Title Change); In the Matter of County Correction Sergeant (PC2668G), Passaic County (MSB, decided August 9, 2006) (County Correction Sergeant); In the Matter of Daniel Ramos and

Christian Waslik (MSB, decided December 21, 2005) (Waslik). Finally, LHRM advised Local 197 that the layoff plan indicated that the reason for the layoff action was for economy and efficiency and it provided a list of County Correction Officers and Sheriff’s Officers employees recorded by the DOP. On December 13, 2007 and January 15, 2008, the Sheriff’s Office submitted addendums to the December 12, 2007 layoff plan based on further budgetary reductions from the Passaic County Board of Chosen Freeholders. The final proposed changes included the layoff of 45 Sheriff’s Officers, 1 Counselor, Penal Institution, 13 Senior Police Records Clerks, 1 Senior Maintenance Repairer, 1 Senior Public Safety Telecommunicator, 4 Senior Clerk Typists, 1 Personnel Clerk, and 1 Senior Account Clerk. The DOP reviewed and approved the Sheriff’s Office layoff plan on January 18, 2008. In approving the layoff plan, LHRM advised the Sheriff’s Office that individual layoff notices must be personally served on the employees whose positions have been targeted for abolishment. Moreover, LHRM instructed the Sheriff’s Office that General Notices of the layoff must be conspicuously posted in all facilities of the affected organizational units and notice must be personally served on all employees whose positions may be affected by the layoff (emphasis added). The employees whose positions may be affected by the layoff are those employees who could be displaced as a result of an incumbent in a targeted position exercising lateral or demotional title rights. It would also include those employees who are displaced by an individual who is being returned to a former permanent title because the layoff action precluded the employee in the targeted position from completing a working test period and achieving permanency in the targeted position. Subsequently, the effective date of the layoff was changed to March 7, 2008 in order that the affected employees could receive the required 45 days’ notice of the layoff in accordance with N.J.S.A. 11A:8-1 and N.J.A.C. 4A:8-1.6(a). On January 22, 2008, staff members of the Sheriff’s Office personally served 44 Sheriff’s Officers notice that they would be laid off from their permanent or probationary position of Sheriff’s Officer at the close of the working day on March 7, 2008. The 44 Sheriff’s Officers who received the January 22, 2008 individual layoff notices were those whose titles were changed from County Correction Officer on November 21, 2007 as a result of the Board’s decision in Lateral Title Change. In other words, the last 44 Sheriff’s Officers whose appointments were recorded received layoff notices. Additionally, although the Sheriff’s Officers who were targeted for layoff received the required individual 45-day notice on January 22, 2008, there is nothing in the record evidencing that the Sheriff’s Office provided personal notice to all of the employees whose positions might be affected by the layoff at that time. In this case, the employees whose positions could be affected by

the layoff were the County Correction Officers who could be displaced by the targeted Sheriff’s Officers who had not completed their required 12-month working test period but had prior permanent service as a County Correction Officer. Thereafter, on February 25, 2008, LHRM issued title rights determination and separation letters to the impacted employees. The February 25, 2008 title rights determination letters were issued to the probationary Sheriff’s Officers and the County Correction Officers who could be displaced by the probationary Sheriff’s Officers. It is noted that 38 of the 44 Sheriff’s Officers who received layoff notices were returned to their former permanent title of County Correction Officer.1 At this juncture, it must be emphasized that these 38 employees were not eligible to exercise demotional title rights to County Correction Officer. Rather, since the employees in the targeted positions were appointed to the Sheriff’s Officer title effective November 21, 2007, none of them could have completed the required 12-month working test period by the effective date of the layoff and therefore none of them had achieved permanency. See N.J.A.C. 4A:4-5.2(a) and N.J.A.C. 4A:4-5.2(d)1. However, each of these 38 employees had varying amounts of permanent service in the County Correction Officer title and thereby was entitled to be returned to their former previously held permanent title within continuous permanent service. See N.J.A.C. 4A:8-2.2(f). This resulted in 36 County Correction Officers who had less seniority as County Correction Officers being displaced by the Sheriff’s Officers who had not completed their working test period but had more seniority as County Correction Officers.2 The 16 appellants represented by Local 197 are part of the group of County Correction Officers who were displaced by the probationary Sheriff’s Officers who were returned to their former permanent title.3

1 The remaining six Sheriff’s Officers were notified that they were being separated from employment because they could not be returned to their former permanent title of County Correction Officer. These employees, Christopher Patacco, Michael Fattal, Michael Nakashian, Anthony Potenzone, Zivojin Savkov, and Robert Torres, could not be returned to their former “permanent” title of County Correction Officer because they never completed the required Police Training Commission (PTC) training for County Correction Officer (PTC-CCO). 2 As part of its pre-layoff actions, the Sheriff’s Office advised that it had terminated 10 employees who were serving provisionally or in interim appointments as County Correction Officers on January 1, 2008. 3 The Sheriff’s Office advised LHRM in early March 2008 that it had rescinded the layoffs of Rocco Cammalleri, Christine Coleman, James Elliot, Carlos Galizia, Daniel Ishak, and Vincent Penna. The rescission of these layoffs was predicated on the fact that three of the impacted probationary Sheriff’s Officers opted not to return to the County Correction Officer title, one probationary Sheriff’s Officer intergovernmentally transferred, one County Correction Officer applied for retirement, and another was on leave and did not complete her working test period as a County Correction Officer. As such, the layoff of these six County

Prior to the March 7, 2008 date of the layoff, the Board considered a petition for administrative relief to lessen the impact of the layoff from the Sheriff’s Office, the Director, Classification and Compensation, DOP, and three probationary Sheriff’s Officers who would be impacted by the layoff action, Anthony Batelli, Melissa Corrado, and Christopher Patacco. See Sheriff’s Officers and County Correction Officers Relief, supra. Specifically, it was requested that the provisions of N.J.A.C. 4A:4-7.1A be relaxed in order to permit the Intergovernmental Transfers (IGT) of specific incumbents in the title of Sheriff’s Officer, Sheriff’s Office, to the title of Police Officer. It was also requested that the provisions of N.J.A.C. 4A:4-7.1A be relaxed in order to permit the IGT of incumbents in the title of Sheriff’s Officer or County Correction Officer, Sheriff’s Office’s Office, who had not completed their 12-month working test period. It was further requested that the working test period be relaxed for certain qualified staff in order for their names to be placed on the Rice Bill list as Sheriff’s Officers. Finally, Batelli, Corrado, and Patacco appealed the date of their lateral title change to Sheriff’s Officer and requested that their names be placed on the Rice Bill list. In Sheriff’s Officers and County Correction Officers Relief, supra, the Board granted the requests to permit the Sheriff’s Officers and County Correction Officers who had not completed their working test period to participate in the IGT program. It also granted the request to permit Sheriff’s Officers to IGT to Police Officer titles, and if necessary, to complete the required working test in the receiving jurisdiction. Further, the Board permitted the names of those Sheriff’s Officers, upon certification from the Sheriff’s Office of completion of a comparable working test period, based on graduation from the Basic Course for Police Officers and/or GAP training and assignment of Sheriff’s Officer duties, to be placed on the Rice Bill list as Sheriff’s Officers.

With respect to Batelli, Corrado, and Patacco, the Board emphasized that each of the employees had been permanently appointed from a County Correction Officer certification and that its decision in Lateral Title Change was an equitable remedy designed to correct the improper classification of numerous employees based on a longstanding practice that was not sanctioned by the Board. As such, while these employees argued that they began performing Sheriff’s Officer duties at earlier times, the Board could offer them no additional remedy. In compliance with Sheriff’s Officers and County Correction Officers Relief, by facsimile date stamped March 6, 2008, the Sheriff’s Office provided

Correction Officers, who were permanent and had the next greatest amount of seniority, was rescinded. Thus, only County Correction Officers who had not completed their working test period based on their graduation date from the PTC-CCO and those County Correction Officers who had not yet attended the PTC-CCO were ultimately separated from employment in this layoff action. As such, the appeals with respect to these employees are rendered moot.

LHRM with listings of those Sheriff’s Officers who completed their training either more or less than one year from the date of the layoff for Rice Bill placement purposes. This information indicated that appellants Acito, Barrise, Ekkers, and Klein4 completed their academy training on June 21, 2007 or August 30, 2007, and therefore, were not eligible to be placed on the Rice Bill as Sheriff’s Officers. (1) Local 197’s Petition for Stay of the Layoff of County Correction Officers In its petition for stay, Local 197 asserts that its members received notice of their right to appeal the layoff on or about February 28, 2008, nine days prior to the March 7, 2008 layoff date. Specifically, it argues that the County Correction Officers who received the February 28, 2008 notice were wrongfully targeted by the DOP because the Sheriff’s Officers who would be displacing them are in fact permanent employees who cannot bump an employee in a different title. In support of this contention, Local 197 refers to the Board’s decisions in Lateral Title Change and Sheriff’s Officers and County Correction Officers Relief. In this regard, it maintains that the rationale behind the Board’s remedy in Lateral Title Change was to ensure that the impacted officers in that matter would not displace the County Correction Officers hired to fill correctional positions. Further, Local 197 contends that the Board had to “re-address what it commenced and did not finish” in Lateral Title Change and ordered the working test period to be relaxed for those Sheriff’s Officers affected by that decision who were able to demonstrate actual or comparable completion of a working test period in Sheriff’s Officers and County Correction Officers Relief. Thus, if those officers are able to demonstrate completion of an actual or comparable working test period, Local 197 asserts that they should be considered permanent and unable to bump any County Correction Officer. Additionally, it states that its members will be laid off before knowing what their rights are and if they were properly displaced and that they will be unable to apply for an IGT due to the time constraints of the transfer program. Local 197 also argues that the Sheriff’s Office did not adhere to the relevant laws in implementing the layoff plan. It contends that the December 12, 2007 layoff plan presented to the DOP contained the required information as per N.J.A.C. 4A:8-1.4(a), but that two letters submitted with the layoff plan contained several material misrepresentations. Specifically, it questions the veracity of statements in a December 12, 2007 letter from the Sheriff’s Office, which indicated alternatives to the layoff were considered but 4 Mr. Klein subsequently submitted an application dated March 7, 2008 to be placed on the Rice Bill list that was signed by Undersheriff Edward Dombroski certifying that Mr. Klein met the requirements for appointment under N.J.S.A. 40A:14-180 as a Sheriff’s Officer.

deemed inappropriate, that other alternatives were controlled by the collective bargaining agreements, and that Local 197, Local 286 and PCAU were notified of the pending layoffs. Local 197 notes that in In the Matter of Perth Amboy Layoffs (Commissioner of Personnel, decided November 13, 2006), the Commissioner of Personnel noted that the level of consultation prior to a layoff does not require negotiation as commonly used in labor law, but does require more than a mere notification of impending layoffs. Rather, merit system law and rules contemplate a meaningful discussion will occur between the appointing authority and affected negotiations representatives with a view toward avoiding and lessening the impact of the layoff. In this case, Local 197 argues that Felix Garcia, President, first received notice of the layoff on December 12, 2007, the same day that the layoff plan was proposed to the DOP. In a second letter from the Sheriff’s Office to the DOP, indicating that meetings were held on November 28, 2007, November 29, 2007, December 6, 2007, and December 13, 2007 to discuss the layoff, Local 197 contends that although Garcia was present at all but the December 6, 2007 meeting, none of the meetings included discussions regarding alternatives to the impending layoffs. As such, Local 197 maintains that the Sheriff’s Office did not provide it with an opportunity to have meaningful discussions prior to the layoff to discuss alternatives that could have been agreed upon to lessen the impact of the layoff. Moreover, it asserts that the Sheriff’s Office provided the DOP with false information in its layoff plan and staying the layoff will ensure that all interested parties have a real opportunity to discuss alternatives and pre-layoff actions.

For the reasons stated above, Local 197 states that the provisions of N.J.A.C. 4A:2-1.2(c) have been satisfied in that there is a clear likelihood of success on the merits and the Board should order a stay of the layoff. It also contends that a real danger of immediate or irreparable harm exists if a stay is not granted in that County Correction Officers will lose their jobs. Further, it claims that the Sheriff’s Office will not be faced with any substantial injury because it had an opportunity to avoid this petition altogether by ensuring conformity with the required layoff process and that the public interest is best served by granting the request for stay. Accordingly, Local 197 requests that a stay be granted and the Board order the Sheriff’s Office to conduct the required pre-layoff consultations regarding possible alternatives to layoffs.

In response, the Sheriff’s Office presents that it was not responsible for

the determination of layoff and seniority rights and that these decisions were made by the DOP. Regarding its statutory conformity to the layoff process, the Sheriff’s Office states that the DOP approved the layoff plan based on all information it received. With respect to the allegation that there were no alternatives presented, the Sheriff’s Office argues that this is a misstatement

of what occurred. It states that some of the alternatives discussed were officers agreeing to take compensatory time in lieu of pay for working holidays, officers agreeing to take compensatory time in lieu of overtime for qualifications, and officers splitting the 4% raise in January to 2% in January and 2% in July. However, since the contract was not settled, these cost saving measures could not be counted or used to help offset the layoffs. Additionally, the Sheriff’s Office states that there were discussions about putting together an early retirement incentive for those eligible employees with 20 years of service, but less than 25 years, to receive full medical benefits. It explains that Local 197 insisted that this offer be in writing, to which the Sheriff’s Office refused, stating that it was only a possibility to explore, and did not want to make an official offer only to find out later that it could not be done. The Sheriff’s Office emphasizes that in addition to these ideas, it informed Local 197 that it was receptive to any ideas that would save money and reduce the impact on the affected employees. As such, the Sheriff’s Office contends that there is no clear likelihood of success on the merits and the petition for a stay should be denied.

In a supplemental submission, Local 197 states that its members

received less than one week’s notice of the actual layoff action in violation of N.J.A.C. 4A:8-1.6. In support of its position, it cites In the Matter of Robert W. Hartley (MSB, decided June 20, 2007), where the Board noted that the purpose of the 45-day notice is to notify both the employer and affected employees of the layoff, and to provide them with, what, in effect, is 45 days’ severance pay. As such, Local 197 requests that the impacted County Correction Officers be awarded 45 days of pay and benefits.

(2) Appeals of Matthew Celmer, Ruben Gilgorri, Jason Heese, Sebastian Indomenico, Jakari Lee, Vincent Leto, Enid Mitchell, Joseph Petriello, Tressy Smith, Claudio Tundo, Frank Warther, and Matthew Wojak of their layoffs as County Correction Officers, Sheriff’s Office In this matter, the appellants argue that they were appointed from civil service lists at various times and were “inappropriately bypassed for training at the Passaic County Training Academy.” As a consequence of having been “bypassed,” the appellants state that their working test periods were “needlessly, arbitrarily and capriciously delayed” which resulted in delaying their ability to attain permanent employment status following a working test period. The appellants present that they have worked without incident and were never informed of any deficiencies by their supervisors. Additionally, the appellants assert that they never received, by personal service, certified mail, or otherwise, prior written notification of a layoff from the Sheriff’s Office in violation of N.J.A.C. 4A:8-1.6(a). They further claim

that the Sheriff’s Office never posted layoff notices identifying specific individuals for layoff in the County Jail. Rather, they state that the only notice they ever received regarding their layoffs was from LHRM, on February 27, 2008, February 28, 2008 or February 29, 2008. Thus, the appellants claim that since they did not receive the required 45-day notice of the layoff, they were deprived of their due process rights pursuant to the Fourteenth Amendment to the United States Constitution, 42 U.S.C. 1983, the Constitution of the State of New Jersey, and the New Jersey Civil Rights Act. They also claim that the DOP and the Sheriff’s Office conspired to violate 42 U.S.C. 1983. Ms. Mitchell and Ms. Smith further claim that their rights were violated under the New Jersey Law Against Discrimination since they are female. Ms. Mitchell states that she attended the Passaic County Training Academy in September 2004 and August 2005, was inappropriately dismissed from employment for failing to complete the academy training, appealed that decision, and in a settlement agreement, was permitted to return to duty as a County Correction Officer, with all attendant seniority, and to complete her academy training in April 2008. Thus, her working test period never started. Ms. Smith states that she was sent to the Passaic County Training Academy in August 2005, but due to a knee injury, did not complete the academy. Ms. Smith claims that in early 2006, she spoke with the Sheriff, who indicated that he would send her to another academy in another county. Ultimately, Ms. Smith states that she attended the Camden County Training Academy from May to August 2007 and asserts that she was needlessly bypassed in her selection for her training. In a supplemental submission, Mr. Petriello reiterates that he did not receive the required 45-day notice. Additionally, he states that N.J.A.C. 4A:8-2.1 prohibits the displacement of an employee by an employee who has been working out-of-title. Mr. Petriello argues that the Sheriff’s Officers who displaced the County Correction Officers had been working out-of-title for several months and many of them completed their working test periods. Thus, he asserts that he was displaced by an employee who did not have a right to displace him. Mr. Petriello further claims that some of the Sheriff’s Officers who displaced County Correction Officers were never properly trained for the County Correction Officer title, as they only completed the Basic Course for Police Officers and never worked in a correctional facility. (3) Appeal of James Racanelli of his layoff as a County Correction Officer Mr. Racanelli requests a full review of the layoff. He states that he was appointed from a civil service list in December 2005, graduated from the

Police Academy in 1995 with a full PTC certification, did not attend a County Correction Officer Academy, and did not participate in the GAP program to get his certification as did other officers. Mr. Racanelli also questions why the Board did not relax the rules concerning participation in the IGT program sooner in order to assist the impacted officers in seeking alternate employment. In light of his training, Mr. Racanelli states that he would like to be considered for Police Officer positions. (4) Appeals of determinations that 12 Sheriff’s Officers did not complete their Working Test Period in the title of Sheriff’s Officer which resulted in their return to their former permanent title of County Correction Officer due to the layoff action

In this matter, the 12 impacted Sheriff’s Officers were advised by

memoranda dated January 23, 2008 that they were being “transferred” from either the Patrol Division or the Courthouse to the Jail effective March 7, 2008. The appellants present that the title rights determination letter of February 25, 2008 incorrectly indicated that they were serving in a “probationary position of Sheriff’s Officer.” Therefore, for the following reasons, the appellants state that they should not have been selected to transfer to the Jail. Pursuant to the decision in Lateral Title Change, these appellants argue that their titles were changed from County Correction Officer to Sheriff’s Officer because they had been performing out-of-title Sheriff’s Officer duties based on the longstanding past practice sanctioned by the Sheriff’s Office. At the time of that decision, these appellants state that they had already been performing Sheriff’s Officer duties for more than one year and had completed their respective working test periods. To hold otherwise, these appellants contend that they would be required to complete working test periods, in some cases, in excess of five years. They state that since the working test period is designed to permit an appointing authority to determine whether an employee can satisfactorily perform the duties of the title, they each completed their working test period well before the Board permitted their lateral title changes on November 21, 2007. For these same reasons, the appellants argue that the determination that they do not have special reemployment rights in the Sheriff’s Officer title is also incorrect.

The appellants further argue that pursuant to N.J.A.C. 4A:8-2.4(b)

that there are less senior Sheriff’s Officers who should be affected by the layoff. In support of this allegation, they provide listings of various officers purporting to indicate their hire dates, seniority ranks, and dates when the appellants commenced performance of Sheriff’s Officer duties.5 In short, they claim that appellants Barrise, Ezmat, and Grant have more seniority 5 The listing of those officers who purportedly have less seniority does not indicate when they commenced Sheriff’s Officer duties.

than 73% of all Sheriff’s Officers and appellant Diamond has more seniority than 55% of all Sheriff’s Officers, yet they were selected to be transferred. Moreover, the appellants note that the layoff plan does not include the elimination of any County Correction Officer positions, but the Sheriff’s Office’s Jail Department list contains the names of 31 interim, temporary or provisional appointees in the County Correction Officer title. In this regard, the appellants emphasize that in Lateral Title Change, the Board specifically indicated that the Sheriff’s Office should take steps to ensure that no temporary appointees serve more than six months and LHRM was to closely monitor interim and temporary appointments to the County Correction Officer title. The appellants argue that these 31 interim, temporary, or provisional appointees in the County Correction Officer title should be displaced before they are laid off. Additionally, the appellants claim that there are 15 employees serving in various non-law enforcement titles serving in a provisional or temporary capacity who should be eliminated before they are laid off.

The appellants finally assert that the Sheriff’s Office employs 27

unclassified Sheriff’s Investigators, and possibly an additional unidentified 7 Sheriff’s Investigators. The appellants also state that there are 160 employees serving in the title of Sheriff’s Officer. Given that N.J.S.A. 40A:9-117a limits the number of investigators in a Sheriff’s Department to 15% of the total number of Sheriff’s Officers employed, the appellants argue that the Sheriff’s Office violated the statute by employing more than the permissible number of Sheriff’s Investigators. Accordingly, the appellants state that the Sheriff’s Office should have eliminated at least a minimum of three Sheriff’s Investigators as part of its layoff plan. Therefore, the appellants argue that the Sheriff’s Office’s layoff plan was inappropriate and that they should not have been transferred from either the Patrol Division or Courthouse to the Jail.

Mr. Vergel states that he has been employed as a County Correction

Officer since 2002 and questions if the determination that he was displacing a non-permanent employee in the County Correction Officer title means that he does not have permanent status as a County Correction Officer.

The Sheriff’s Office did not provide a response to this appeal for the

Board to review.

(5) Appeals of Zivojin Savkov and Robert Torres concerning the date of their lateral title change from County Correction Officer to Sheriff’s Officer

Mr. Savkov states that he has worked for the Sheriff’s Office’s Department for six years, completed the Basic Course for Police Officers on January 28, 2005, and “was made permanent on December 23, 2005 off the Corrections list since there was no Sheriff’s Officer list in the department at that time.” However, he states that his records with the DOP reflecting a November 21, 2007 appointment to Sheriff’s Officer are incorrect. Further, he underscores that he never attended a County Correction Officer Academy or went through the GAP Academy. Mr. Savkov presents that he has continuously been working in the capacity of a Sheriff’s Officer since November 10, 2003 when he was appointed to the unclassified title of Sheriff’s Investigator. In support of his request for an earlier appointment date, Mr. Savkov provides copies of personnel transactions sheets from the Sheriff’s Office and his performance evaluations. Mr. Savkov also requests a stay of the layoff pending final resolution of this matter. Mr. Torres presents that he has been working in the capacity of a Sheriff’s Officer since December 22, 2003, not November 21, 2007, and that he should not have been impacted by the layoff. Mr. Torres provides voluminous documentation regarding his various assignments and his attendance sheet as a Sheriff’s Officer. He also provides a letter from Captain Joseph Brady, stating that Mr. Torres has worked in a Sheriff’s Officer capacity since August 2002. Mr. Torres states that he was permanently appointed from a “corrections list” in 2005 and completed the Basic Course for Police Officers that same year. However, after he completed the full academy, he was assigned to the Courthouse Division, not the Jail, and has been working out-of-title since January 2005. Additionally, he states that he contacted the former Division of Human Resource Management on numerous occasions complaining that he was working out-of-title and inquiring as to how he could get his title corrected, but the paperwork “was just sitting on someone’s desk.” Consequently, three years elapsed, nothing was done to correct his appointment date, and now he is faced with being laid off even though he followed all of the procedures required of him by the Sheriff’s Office. Additionally, Mr. Torres provides documentation in which he asserts that less senior Sheriff’s Officers were not targeted for displacement and he raises concerns regarding the retention of less senior unclassified Sheriff’s Investigators. Therefore, Mr. Torres requests that his permanent appointment date to Sheriff’s Officer be changed from November 21, 2007 to his “date of hire.” Mr. Torres also requests a stay of the layoff action. (6) Christopher Patacco’s petition for reconsideration of Sheriff’s Officers and County Correction Officers Relief which denied his request to change the date of his lateral title change from County Correction Officer to Sheriff’s Officer

Mr. Patacco presents that he has worked in the capacity of a Sheriff’s Officer since July 7, 2003 and that his record should be corrected to indicate his appointment as a Sheriff’s Officer based on his date of hire. In support of his position, Mr. Patacco provides voluminous documentation, including attendance records, transfer orders, and personnel action forms indicating that he was assigned the duties of a Sheriff’s Officer. Like Mr. Torres, Mr. Patacco states that he followed all of the procedures required by the Sheriff’s Office for him to serve as a Sheriff’s Officer, but the paperwork was never properly processed on the appropriate date. This has resulted in his being impacted by the layoff. In short, Mr. Patacco states that the duties he has always performed led him to believe that he was appointed a Sheriff’s Officer since he graduated from the Basic Course for Police Officers in April 2004 and that it is unfair that he be targeted as part of the layoff. Further, Mr. Patacco provides a seniority listing of officers in the department and claims that less senior officers were not impacted by the layoff, including incumbents in the unclassified Sheriff’s Investigator title. As such, Mr. Patacco requests reconsideration and that his permanent appointment date be based on his date of hire with the Sheriff’s Office. Moreover, Mr. Patacco requests a stay of the layoff. (7) Request of Gabriel Galeano that his title be laterally changed from County Correction Officer to Sheriff’s Officer with a retroactive appointment date of February 27, 2003

Mr. Galeano states that at all relevant times during his employment with the Sheriff’s Office, he understood that he held the title of Sheriff’s Officer. Specifically, he presents that he was appointed as an unclassified Sheriff’s Investigator in June 2002, attended PTC training, was appointed as a County Correction Officer on December 22, 2003, and completed County Correction Officer Academy training on July 7, 2004. In support of his request for a retroactive lateral title change, Mr. Galeano provides various CAMPS and County of Passaic Personnel forms which he asserts support his request for a February 27, 2003 appointment date to Sheriff’s Officer. (8) Appeals of James Acito, Joseph Barrise, Nicholas Klein, and Jason Ekkers, to be placed on the Rice Bill List as Sheriff’s Officers if they choose not to return to their former County Correction Officer title and be laid off In this matter, the appellants state that they were verbally advised by the DOP that they are not eligible to be placed on the Rice Bill list if they choose not to return to their former permanent title of County Correction Officer, and they believe that determination is incorrect. Specifically, the appellant states that they all completed their working test period or a

comparable probationary period in the title of Sheriff’s Officer when they completed one year of Sheriff’s Officer duties. In this regard, Mr. Acito and Mr. Klein state that they commenced Sheriff’s Officer duties in 2004, Mr. Barrise in 2005, and Mr. Ekkers in 2006. Thus, they assert that it is evident that the Sheriff’s Office determined “long ago” that they could satisfactorily perform the duties of the title and that is why he requested administrative relief from the Board to permit their lateral title changes from County Correction Officer to Sheriff’s Officer. The appellants contend that the date they graduated from the academy alone cannot, and should not, determine the commencement of their working test period or probationary period, and they argue that neither N.J.S.A. 40A:14-180 nor N.J.A.C. 4A:4-3.9 provide that completion of academy training is the trigger for a working test period. Mr. Klein provides a certification from the Undersheriff that he satisfies the criteria for placement on the Rice Bill list. The appellants in this matter also assert that the Sheriff’s Office, on March 5, 2008, reassigned unclassified Sheriff’s Investigators Elliot George, Giovanni Casillo, (No first name provided) Ryan, Michael Nakasian, Darren Woolridge, Stephan Lantgua, and Daniel Tareky to perform the duties of Sheriff’s Officers. The appellants argue that this is inappropriate and unlawful in the midst of a layoff where 45 Sheriff’s Officer positions are being eliminated. In this regard, the appellants note that N.J.S.A. 40A:9-117a specifically provides that appointments of Sheriff’s Investigators shall not result in the layoff of permanent Sheriff’s Officers. As such, these appellants petition the Board to stay the layoff action until all of these matters have been investigated. CONCLUSION

In Melani v. Passaic County Board of Freeholders (Docket No. PAS-L-

318-04) (Law Div. May 29, 2007), the plaintiff argued that Passaic County employed in excess of 180 provisional employees and never notified the DOP of these appointments. The court recognized this ongoing problem and ordered a number of corrective measures, including the correction of improper job classifications. Melani demonstrates the endemic problem of lack of compliance with the most routine reporting requirements of the Civil Service Act by both the Passaic County and the Passaic County Sheriff’s Office appointing authorities. Indeed, the root of all of these appeals can be traced to the Sheriff’s Office’s failure to provide accurate, timely, and at times, any information to the DOP regarding its employees. Although the Board has attempted to rectify these ongoing problems since it decided Waslik and its subsequent decisions since December 2005, many of these appellants’ concerns, misunderstandings, and situations could have been avoided had the Sheriff’s Office simply utilized appropriate employment

rosters and reported routine personnel transactions to the DOP. See In the Matter of Michael Sizow (MSB, decided August 28, 2001), aff’d on reconsideration (November 8, 2001) (Appellant’s title change from County Correction Officer to Sheriff’s Officer not submitted or approved by the DOP and it was proper for the Sheriff to rescind the reassignment and return him to County Correction Officer). N.J.A.C. 4A:4-1.10(a) provides that all appointments, promotions, and related personnel actions in the career, unclassified or senior executive service are subject to the review and approval of the DOP. It is settled that an appointment is not valid or final until it is approved by the DOP. See Thomas v. McGrath, 145 N.J. Super. 288 (App. Div. 1976) (Morgan, J.A.D. dissenting), rev’d based on dissent, 75 N.J. 372 (1978); Adams v. Goldner, 79 N.J. 78 (1979); In the Matter of Donald Gates (MSB, decided June 6, 2007); In the Matter of Reena Naik (MSB, decided February 28, 2007). The Board is now faced with the task of unraveling numerous asserted misclassifications and differing appointment dates that were effected based on faulty information provided by the Sheriff’s Office. Therefore, since Lateral Title Change, which was initiated at the request of the Sheriff’s Office, was intended to finalize all of the outstanding classification problems in the Sheriff’s Office, the Board must consider its determination in that matter as res judicata on the issue of Sheriff’s Officer and County Correction Officer classification and appointment dates.

As the Board noted in Lateral Title Change, N.J.A.C. 4A:4-7.6(a)

provides that a lateral title change is the movement of a permanent employee from his or her permanent title to an equivalent title within the same organizational unit. N.J.A.C. 4A:4-7.6(b) provides that if the nature of the work, education, and experience requirements of both titles are substantially similar, the employee shall retain his or her permanent status. N.J.A.C. 4A:4-7.6(c) states that if the nature of the work, education and experience requirements of both titles are dissimilar, then the employee shall be appointed pending examination, subject to satisfactory completion of a working test period. If the employee fails the examination or is released at the end of the working test period, he or she shall be restored to his or her permanent title.

The County Correction Officer and Sheriff’s Officer titles are both

entry level titles for their respective series. Thus, movement from one to the other is considered a lateral, rather than promotional or demotional action. However, the two title series are not substantially similar. In this regard, according to the job specification for County Correction Officer, incumbents are primarily assigned to a tour of duty in a correctional facility and guard inmates serving court imposed sentences for the commission of criminal offenses. Conversely, the job specification for Sheriff’s Officer indicates that incumbents primarily maintain order and security in the courtroom, serve

court processes, criminal identification, ballistics and investigations, and apprehend violators of the law. Additionally, appointees to Sheriff’s Officer are required to complete the Basic Course for Police Officers and appointees to County Correction Officer are required to complete the Basic Course for County Correction Officers. Therefore, since the nature of the work and the training requirements for the two titles are different, the titles are dissimilar. As such, a lateral movement from County Correction Officer to Sheriff’s Officer is governed by N.J.A.C. 4A:4-7.6(c), which requires completion of a current working test period upon permanent appointment. As noted earlier, the Sheriff’s Officers impacted by the layoff were provided prior held, not demotional, title rights to their former County Correction Officer titles. It must be underscored for layoff right determinations, seniority for police titles6 is the amount of continuous permanent service in an employee’s current permanent title and other titles that have (or would have) lateral or demotional rights to the current permanent title. See N.J.A.C. 4A:8-2.4(b). This is significantly different from how seniority is determined for non-police titles, where seniority is based on continuous permanent service in the jurisdiction, regardless of title. See N.J.A.C. 4A:8-2.4(a). In other words, since the Sheriff’s Officer and County Correction Officer title series are dissimilar, an incumbent in the Sheriff’s Officer title would not have demotional rights to a County Correction Officer title, even if the employee had more overall jurisdictional seniority than the least senior permanent County Correction Officer. The only reason the impacted Sheriff’s Officers were able to return to their former County Correction Officer titles in this case was because they had not completed their working test period as Sheriff’s Officers and they were returned to their prior held title, displacing less senior County Correction Officers. Had the Sheriff’s Officers impacted by the layoff achieved permanent status and if they were the least senior in the Sheriff’s Officer title, they would have been separated from employment altogether. Consequently, if Sheriff’s Officers are targeted in a subsequent layoff, it does not appear that any would have prior held title rights to their former County Correction Officer title as the remaining Sheriff’s Officers have presumably completed their working test periods and are permanent in the title. (1) Local 197’s Petition for Stay of the Layoff of County Correction Officers

N.J.A.C. 4A:2-1.2(c) provides the following factors for consideration in

evaluating petitions for interim relief: 6 This includes Sheriff’s Officers and County Correction Officers since N.J.S.A. 52:17B-66 et seq. requires entry level employees to complete a police training course. See N.J.A.C. 4A:8-2.4(b)1.

1. Clear likelihood of success on the merits by the petitioner; 2. Danger of immediate or irreparable harm; 3. Absence of substantial injury to other parties; and 4. The public interest. N.J.S.A. 11A:8-4 and N.J.A.C. 4A:8-2.6(a)1 provide that good faith

appeals may be filed based on a claim that the appointing authority laid off or demoted the employee in lieu of layoff for reasons other than economy, efficiency or other related reasons. When a municipality has abolished a position, there is a presumption of good faith and the burden is on the employee to show bad faith and that the action taken was not for purposes of economy. Greco v. Smith, 40 N.J. Super. 11 (App. Div. 1956); Schnipper v. North Bergen Township, 13 N.J. Super. 11 (App. Div. 1951). As the Appellate Division further observed, “That there are considerations other than economy in the abolition of an office or position is of no consequence, if, in fact, the office or position is unnecessary, and can be abolished without impairing departmental efficiency.” Schnipper, supra at 15. (emphasis added).

Further, N.J.S.A. 11A:8-2(b), N.J.A.C. 4A:8-1.2(e) and N.J.A.C. 4A:8-

1.3(c) provide that appointing authorities shall consult with affected negotiations representative prior to offering alternatives to layoff or implementing pre-layoff measures. N.J.S.A. 11A:8-3 and N.J.A.C. 4A:8-1.2(b) and (c) provide that appointing authorities should lessen the possibility of layoffs by considering voluntary alternatives, such as granting leaves of absence without pay to permanent employees without loss of seniority, granting voluntary furloughs, allowing a voluntary reduction in work hours, or providing employees with optional demotional title changes. N.J.S.A. 11A:8-2 and N.J.A.C. 4A:8-1.3(a) provide that an appointing authority shall lessen the possibility, extent, or impact of layoffs by implementing pre-layoff actions, such as initiating temporary hiring and/or promotion freezes, separating non-permanent employees, returning provisional employees to their permanent titles, reassigning employees, or assisting potentially affected employees in securing transfers or other employment.

Local 197 initially asserts that its members were wrongfully displaced

by the Sheriff’s Officers whose titles were laterally changed on November 21, 2007 as a result of the Board’s decision in Lateral Title Change, arguing that these officers had in fact attained permanent status and were not eligible to be returned to their former permanent title of County Correction Officer. The Board disagrees. Initially, Local 197’s arguments concerning the rationale behind the Board’s decision in Lateral Title Change and the Board “re-address[ing] what it commenced and did not finish” in Sheriff’s Officers and County Correction Officers Relief are misplaced. The primary rationale

behind the Board’s decision in Lateral Title Change was not to ensure that the impacted officers in that matter would not displace the County Correction Officers hired to fill correctional positions. Rather, the Board was attempting to resolve an ongoing classification problem rooted in the Sheriff’s Office’s unorthodox appointment practices and its continued lack of cooperation in providing any meaningful information regarding the classification of its employees. For example, in its request to the Board to permit a “one-time approval of currently pending lateral transfers,” the Sheriff’s Office advised the Board that:

a full audit of affected employees is being done and a list is being compiled, with explanations, action dates, etc. This list will be submitted to your office for review and consideration with respect to this request for relief.

However, despite requests for this promised information, the only data ever submitted by the Sheriff’s Office was a listing of those officers whom it desired to have their titles changed from County Correction Officer to Sheriff’s Officer. The Sheriff’s Office never provided the Board with the dates it assigned these officers Sheriff’s Officer duties, when they completed the GAP training and/or the Basic Course for Police Officers, or any documentation which would allow LHRM to establish the assignment of Sheriff’s Officer duties. Again, it must be emphasized that the request to provide “one-time approval” in Lateral Title Change was initiated by the Passaic County Sheriff’s Office and the Bergen County Sheriff, not the DOP or the Board. It is well established that the foundation of position classification, as practiced in New Jersey, is the determination of duties and responsibilities being performed at a given point in time as verified by the DOP through an audit or other formal study. Thus, classification reviews are based on a current review of assigned duties and any remedy derived therefrom is prospective in nature since duties which may have been performed in the past generally cannot be reviewed or verified. Given the evolving nature of duties and assignments, it is simply not possible to accurately review the duties an employee may have performed six months ago or a year ago or several years ago. The DOP’s established classification review procedures in this regard have been affirmed following formal Board review and judicial challenges. See In the Matter of Community Service Aide/Senior Clerk (M6631A), Program Monitor (M6278O), and Code Enforcement Officer (M0041O), Docket No. A-3062-02T2 (App. Div. June 15, 2004) (Accepting DOP’s policy that classification reviews are limited to auditing current duties associated with a particular position because it cannot accurately verify duties performed by employees in the past). See also, In the Matter of

Engineering Technician and Construction and Maintenance Technician Title Series, Department of Transportation, Docket No. A-277-90T1 (App. Div. January 22, 1992); In the Matter of Theresa Cortina (Commissioner of Personnel, decided May 19, 1993). In this case, other than its request to permit the pending lateral title changes and a listing of the names of the impacted officers, the Sheriff’s Office did not provide one scintilla of documentation on which LHRM or the Board could establish when these officers completed their required PTC training, began performing the duties of a Sheriff’s Officer, or when these officers actually began their working test period. Absent this critical information, consistent with the above noted rationale, the employees identified by the Sheriff’s Office in Lateral Title Change were granted the equitable remedy of a lateral title change to Sheriff’s Officer with a permanent appointment date of November 21, 2007, the date the Board granted this remedy. Since the County Correction Officer and Sheriff’s Officer titles are dissimilar, and based on the absence of any contemporaneous documentation regarding the assumption of duties, date of completion of the required PTC training, or start and/or completion of a working test period, as required by N.J.A.C. 4A:4-7.6(c), the employees listed in Lateral Title Change were required to complete a current working test period based on the date of their permanent appointment. As such, absent this verification of duties and/or formal study by LHRM, the performance of Sheriff’s Officer duties prior to November 21, 2007 would be essentially similar, at best, to a provisional appointment. In this regard, it must be underscored that N.J.A.C. 4A:4-5.2(a) specifies that the working test period shall not include any time served by an employee under provisional, temporary, interim or emergency appointment and that the working test period shall begin on the date of regular appointment. Therefore, the Board fully intended the employees granted lateral title changes in Lateral Title Change to be permanently appointed effective November 21, 2007 and subjected to a current working test period. Local 197 attempts to construe the Board’s decision in Sheriff’s Officers and County Correction Officers Relief as finishing what the Board started in Lateral Title Change regarding the working test period, in order to provide the impacted Sheriff’s Officers with an opportunity to demonstrate that they actually completed a working test period, and therefore, would be entitled to an earlier permanent appointment date. This was not the case. When the Board considered the Sheriff’s Office’s request in Lateral Title Change, it was not aware that a layoff action was contemplated that could potentially impact the employees to whom it provided administrative relief. However, when presented with the multiple requests, dated February 15, 2008, in Sheriff’s Officers and County Correction Officers Relief, the Sheriff’s Office and

Director of Classification and Compensation specifically indicated that the Sheriff’s Office would be undergoing a reduction in force and they requested that the Board provide the employees impacted by the layoff with enhanced alternatives to lessen the impact of the layoff. In fact, when the Board received the requests, the 45-day notices had already been served on the impacted Sheriff’s Officers on January 22, 2008. Thus, Sheriff’s Officers and County Correction Officers Relief was not intended, as suggested by Local 197, to provide a mechanism to those officers whose titles were laterally changed in November 21, 2007 to challenge their classification or the date of their appointment. Rather, it was simply an administrative remedy intended to lessen the impact of the layoff. While it seems incongruous for the Board on the one hand to sanction the fact that the impacted Sheriff’s Officers did not complete their working test period based on the November 21, 2007 lateral title change date, but then to permit them to provide documentation of completion of a comparable working test period for Rice Bill placement and IGT eligibility purposes, it must be underscored that at the time of the Sheriff’s Officers lateral title change, the Board and LHRM had no basis on which to establish different permanent appointment dates. The fact that budgetary crises resulted in the targeting of the newly appointed Sheriff’s Officers less than two months after they were appointed should not result in them being treated any differently under merit system law and rule. Indeed, for the Board to go back and revisit the appointment dates of any of the impacted officers, given the history of the Sheriff’s Office’s appointment practices, when any of those Sheriff’s Officers could have petitioned the DOP for a review of their classifications prior to November 21, 2007, could result in a never ending chain of claims and no finality on this matter. For example, in In the Matter of Kathleen Diringer (Commissioner of Personnel, decided April 22, 1994), the appellant argued that her position was misclassified in that she performed duties of a higher level title and that a classification study should have been performed prior to the layoff. The Commissioner noted that classification reviews are based on a current review of assigned duties and any remedy derived is prospective in nature since duties which may have been performed in the past cannot be reviewed or verified. In Diringer, the appellant did not raise the issue of her classification until after her layoff and the Commissioner determined that her claim of misclassification was not cognizable under classification review procedures. Similarly, in this case, neither Local 197 nor the impacted Sheriff’s Officers raised the issue of their classification until after they received the 45-day layoff notices and/or the February 26, 2008 title rights letters. Nonetheless, DOP records confirm that all of the Sheriff’s Officers whose titles were laterally changed only responded to certifications issued by

the DOP for appointment to and accepted a permanent appointment to County Correction Officer. Had any of these former County Correction Officers been concerned that that they were performing out-of-title Sheriff’s Officer duties for a substantial period of time, they could have filed a formal classification appeal with the DOP. See N.J.A.C. 4A:3-3.9. There is no record that any of the employees impacted in Lateral Title Change ever appealed their classification and to do so after the layoff would be untimely. Therefore, the return of the targeted, probationary Sheriff’s Officers to their former titles of County Correction Officer was proper. Moreover, all of the displaced employees had less seniority as County Correction Officers and they were properly laid off. Regarding the contention that the Sheriff’s Office did not engage in a meaningful discussion with the affected negotiations representatives with a view toward avoiding and lessening the impact of the layoff, as stipulated in Perth Amboy Layoff, supra, the Board initially notes that Local 197 has not specifically rebutted the submission provided by the Sheriff’s Office regarding the alternatives it discussed, such as taking compensatory time and splitting the 4% raise slated for January or provided what suggestions it would have offered to lessen the impact of the layoff. In Perth Amboy Layoffs, the unions in that matter asserted that they requested specific information from the appointing authority, which was not provided, that it needed in order to engage in a meaningful discussion to lessen the possibility of the layoffs. They also raised substantial public safety concerns as a potential consequence of the layoff. In this case, Local 197 does not indicate that it requested any information regarding the budgetary crisis, even after it learned that the layoff plan was submitted to the DOP on December 12, 2007, that was amended on December 13, 2007 and January 7, 2008, or expressed public safety concerns. Rather, it merely makes a broad allegation that meaningful discussions did not occur prior to the layoff and it offers no alternatives. Moreover, Local 197 reached out to LHRM on December 27, 2007 regarding the implementation of the layoff process. Additionally, the Sheriff’s Office requested administrative relief, to include those County Correction Officers displaced by the layoff, so that they could participate in the IGT Program prior to completion of their working test periods. Finally, the six County Correction Officers who completed their working test periods and were permanent had their layoffs rescinded based on the alternatives to the layoff requested by the Sheriff’s Office and granted by the Board in Sheriff’s Officers and County Correction Officers Relief. As such, the Board finds that the Sheriff’s Office substantially complied with the required pre-layoff consultations to lessen the extent and impact of the proposed layoff. With respect to the argument that the Sheriff’s Office did not adhere to the relevant laws and rules in implementing the layoff plan, the Board agrees

with Local 197 that its members did not get the benefit of a full 45-day notice of the layoff. In this regard, N.J.S.A. 11A:8-1 and N.J.A.C. 4A:8-1.6(a) provide that an employee shall receive 45 days’ written notice of the layoff action. The purpose of the 45-day notice is to allow sufficient time for the DOP to determine appropriate layoff entitlements and to notify both the employer and the affected employees, to afford the affected employees the opportunity to seek new employment and to provide them with what, is in effect, is 45 days’ severance pay. See Amodio v. Civil Service Commission, 81 N.J. Super. 22 (App. Div. 1963); In the Matter of Joseph Bonner, City of Bayonne (Commissioner of Personnel, decided December 15, 1989). Specifically, the record demonstrates that the probationary Sheriff’s Officers were provided with individual notices of layoff on January 22, 2008. However, although advised by LHRM on January 18, 2008 to also provide a general 45-day notice to those employees likely to be impacted by the layoff, in this case, the County Correction Officers who could be displaced by the probationary Sheriff’s Officers, there is no evidence in the record indicating that the Sheriff’s Office provided these County Correction Officers with the required notice. As stated by Local 197, the only evidence in the record indicating that its members were apprised of the consequences of the layoff was the February 25, 2008 title rights determinations issued by LHRM that its members received on or about February 28, 2008. Therefore, the displaced County Correction Officers were not provided this notice and are entitled to 37 days of pay (the number of days between January 22, 2008 when they should have been advised that they were likely to be impacted by the layoff and when Local 197 indicated that its members received the title rights notices on February 28, 2008). Turning to the factors cited in its petition for a stay of the layoff, Local 197 has not presented one scintilla of evidence in support of its allegations that the probationary Sheriff’s Officers who were returned to their permanent title of County Correction Officer were in fact permanently appointed as Sheriff’s Officers and completed their required working test period. As such, it is not likely that Local 197 would succeed on the merits of a good faith or title rights determination appeal. Rather, as detailed above, those employees were properly returned to their permanent title of County Correction Officer as they were the least senior Sheriff’s Officers who were appointed and they did not complete their working test period. The Board’s decision in Lateral Title Change did not contemplate an earlier lateral title change date because the Sheriff’s Office did not provide any documentation in support of an earlier appointment date. Additionally, the Board’s decision in Sheriff’s Officer and County Correction Officer Relief was not intended to provide those Sheriff’s Officers with an opportunity to challenge the date of their lateral title changes but was an equitable administrative remedy, under the auspices of N.J.S.A. 11A:8-2 and N.J.A.C. 4A:8-1.3(a), to lessen the

impact of the layoff by providing a means for the affected employees to secure transfers or other employment through the IGT program or placement on the Rice Bill list. Regarding Local 197’s argument that there is a real danger of immediate or repairable harm if the stay is not granted because the impacted County Correction Officers will lose their jobs, while the Board is cognizant of these individuals’ financial situations, the harm that they will suffer while awaiting a determination on this matter is financial in nature, and as such, could be remedied by the granting of back pay should they prevail in a good faith layoff appeal. Additionally, the Board granted the displaced County Correction Officers pay to remedy a procedural flaw regarding their notice of the pending layoff. Further, the public interest favors efficient government operations, since it is the taxpayer who ultimately bears the financial burden of public employees’ salary and benefits. It is in the public’s best interest to streamline public services and promote more efficient operations. Accordingly, Local 197 has not demonstrated a sufficient basis for interim relief of the instant layoff. (2) Appeals of Matthew Celmer, Ruben Gilgorri, Jason Heese, Sebastian Indomenico, Jakari Lee, Vincent Leto, Enid Mitchell, Joseph Petriello, Tressy Smith, Claudio Tundo, Frank Warther, and Matthew Wojak, of their layoffs as County Correction Officers, Sheriff’s Office According to DOP records, all of the appellants except Ms. Mitchell, Ms. Smith, and Mr. Tundo were appointed as County Correction Officers on December 22, 2005. Ms. Mitchell was appointed on December 22, 2003, Ms. Smith was appointed on August 30, 2004, and Mr. Tundo was appointed on January 10, 2005. There is no record that any of these appellants were inappropriately bypassed in their initial appointments from their respective DOP eligibility lists. However, the appellants maintain that the Sheriff’s Office inappropriately bypassed them in the scheduling of their academy training that resulted in them being unable to achieve permanent status because they were unable to complete their working test periods. N.J.S.A. 52:17B-68.1(b) specifies:

A person shall be given a probationary appointment as a corrections officer or as a juvenile detention officer for a period of one year so that the person seeking permanent appointment may satisfactorily complete a basic training course for corrections officers or for juvenile detention officers conducted at a school approved by the Police Training Commission. The

probationary time may exceed one year for those persons enrolled within the one-year period in a basic training course scheduled to end after the expiration of the one-year period. A person shall participate in a basic training course only if that person holds a probationary appointment and that person shall be entitled to a leave of absence with pay to attend a basic training course.

In other words, the selection and scheduling of probationary County Correction Officers is under the purview of the appointing authority, in this case, the Sheriff’s Office. The DOP has no authority to compel the Sheriff’s Office to select and schedule probationary County Correction Officers for the required PTC training based on their appointments from a civil service list. Completion of the required training during the probationary period is governed by N.J.S.A. 52:17B-68.1(b) and enforced by the Police Training Commission. It is only upon notification of completion of the required County Correction Officer Academy training that the working test period for merit system purposes can begin. In the case of these appellants, regardless of the reasons, they did not complete their working test periods by the effective date of the layoff. Additionally, the appellants have not provided any evidence of bad faith or discrimination in the Sheriff’s Office’s scheduling of employees to attend the County Correction Officer training academy. Therefore, they were not permanent at the time of the layoff and were properly displaced. With respect to their claims regarding the 45-day notice of layoff, as stated earlier, the displaced County Correction Officers were not provided this notice. However, these appellants specify varying days on which they received their title rights determinations from LHRM. Therefore, these officers, as well as those identified in Local 197’s claim, should receive the number of days of back pay in accordance with Attachment A. There is no other remedy that the Board can offer these appellants. See Bonner, supra. In response to Mr. Petriello’s claim that he was displaced by County Correction Officers working out-of-title who had achieved permanency as Sheriff’s Officers, for reasons stated more fully below, the record does not demonstrate that those employees completed their working test periods and they were properly returned to their former titles. (3) Appeal of James Racanelli of his layoff as a County Correction Officer According to DOP records, Mr. Racanelli was permanently appointed as a County Correction Officer on December 22, 2005. His personnel record also reflects that the Sheriff’s Office attempted to appoint him to the

unclassified Sheriff’s Investigator title on December 22, 2003, but this appointment was disapproved by the DOP because, at that time, his appointment would have exceeded the 15% total number permitted by N.J.S.A. 40A:9-117(a). His personnel record also indicates that he was a Security Guard from April 29, 2002 to when he resigned from that position on December 19, 2003. Therefore, there is no record of him serving with the Sheriff’s Office from December 19, 2003 to when he was appointed as a County Correction Officer on December 22, 2005. It is noted that Mr. Racanelli requested that LHRM perform a desk audit of his duties on August 10, 2007, claiming that he had worked as a Sheriff’s Investigator since December 22, 2003. However, by letter dated December 18, 2007, LHRM advised him that it would take no further action on the matter because he was reassigned the duties of a County Correction Officer. Although Mr. Racanelli asserts that he performed the duties of a Sheriff’s Officer since December 2003, the DOP specifically disapproved his appointment to the Sheriff’s Investigator title. Moreover, there is no record of his employment in any capacity with the Sheriff’s Office from December 19, 2003, when he resigned as a Security Guard, to when he was appointed as a County Correction Officer on December 22, 2005. As such, the Board can only speculate that the Sheriff’s Office employed Mr. Racanelli in the capacity of an unclassified Sheriff’s Investigator during this time frame in contravention of the DOP’s disapproval of that appointment. Further, the Sheriff’s Office did not list Mr. Racanelli as one of the officers in Lateral Title Change to have his appointment changed to Sheriff’s Officer. Consequently, since Mr. Racanelli did not possess the required County Correction Officer Academy training and he was one of the least senior County Correction Officers, he was properly displaced. In response to his question regarding the Board’s decision in Sheriff’s Officers and County Correction Officer Relief, the Board provided the requested remedy at its first meeting following the Sheriff’s Office’s request. Regarding his assertion that other officers are working in the Jail who have not received the appropriate training, Mr. Racanelli has not supported this allegation. (4) Appeals of determinations that 12 Sheriff’s Officers did not complete their Working Test Period in the title of Sheriff’s Officer which resulted in their return to their former permanent title of County Correction Officer due to the layoff action This group of appellants initially argue that they had been performing Sheriff’s Officer duties for more than one year when their titles were laterally changed from County Correction Officer, completed their working test

periods, and in effect, achieved permanent status as a Sheriff’s Officer. 7 As such, they state that they should not have been “transferred” from either the Patrol Division or the Courthouse to the Jail. Each of the 12 appellants in this matter were identified by the Sheriff’s Office in its request for administrative relief in Lateral Title Change to have their titles changed from County Correction Officer to Sheriff’s Officer. However, as detailed earlier, the Sheriff’s Office did not provide any information during that proceeding on which the Board or LHRM could substantiate earlier effective dates for specific employees. Additionally, each of these appellants was issued certifications indicating that their names had been certified from a County Correction Officer list. As such, all of them were presumably aware of the fact that they had been appointed County Correction Officers when they assumed the duties of a Sheriff’s Officer, and none of them ever petitioned the DOP or LHRM for a formal classification review of their duties to establish their proper classifications. Consequently, they were all properly deemed to have their titles laterally changed to Sheriff’s Officer with an effective date of November 21, 2007, subject to completion of a current working test period. While this may seem unfair in that, in effect, these appellants served a probationary period for, in some cases, in excess of five years, the Sheriff’s Office took no actions at an earlier point in time to properly document to the DOP what duties these employees were performing. In the same vein, since none of these appellants established permanency by virtue of completion of a one-year working test period from the date of their lateral appointments, they are not entitled to be placed on the special reemployment list for Sheriff’s Officer. The appellants also contend that there are less senior Sheriff’s Officers who should be impacted by the layoff. In support of this allegation, they provide the following information concerning their appointments (from most recent asserted start date of Sheriff’s Officer’s duties):

NAME ASSERTED DATE OF HIRE8 ASSERTED START DATE OF SHERIFF’S OFFICER DUTIES

ACADEMY COMPLETION DATE9

Corrado March 7, 2002 February 14, 2006 November 2, 2006 Fattal November 24, 2003 May 16, 2005 January 27, 2005

7 It is noted that Ms. Corrado, Mr. Fattal, and Mr. Potenzone received intergovernmental transfers to various local jurisdictions as a result of the Board’s remedy in Sheriff’s Officers and County Correction Officers Relief. As such, these appeals are rendered moot. However, for informational purposes, the Board will also review their appointment histories. 8 The dates provided by the appellant are not necessarily the same dates recorded by the DOP as their initial dates of hire. 9 The information concerning the dates of completion of GAP training and/or the PTC Basic Course for Police Officers was provided by the Sheriff’s Office in compliance with the Board’s order in Sheriff’s Officer and County Correction Officer Relief.

Barrise October 7, 1991 March 17, 2005 August 30, 2007 Ezmat May 26, 1996 March 17, 2005 November 2, 2006 Diamond March 11, 1996 December 27, 2004 November 2, 2006 Acito May 17, 2002 September 18, 2004 June 21, 2007 Klein February 11, 2002 June 28, 2004 June 21, 2007 Potenzone March 24, 2003 March 1, 2003 January 27, 2005 Savkov December 9, 2002 Not Provided January 27, 2005 Torres August 19, 2002 August 19, 2002 January 27, 2005 The appellants in this matter assert that the following Sheriff’s Officers have less seniority:

NAME DATE OF HIRE DATE APPOINTED SHERIFF’S OFFICER10

K. Smith August 15, 2005 August 16, 2005 M. Catania August 15, 2005 August 15, 2005 W. McCrary December 22, 2003 December 21, 2003 M. Shinn July 7, 2003 July 21, 2003 D. Dolan March 17, 2003 May 23, 2003 G. Rosenthal November 8, 2002 November 18, 2002 A. Rodriguez September 30, 2002 February 10, 2006 J. Hornstra August 19, 2002 March 27, 2003 J. Weston May 6, 2002 August 31, 2005 C. Mawinrey May 6, 2002 January 13, 2006 A. Abate May 6, 2002 January 11, 2006 L. Cameron March 25, 2002 November 21, 2007 C. Padula March 11, 2002 March 11, 2002 J. Sayan March 7, 2002 November 21, 2007 A. Gagliostro February 25, 2002 September 12, 2005 P. Selleroli February 11, 2002 March 27, 2003 J. Iannacone February 11, 2002 March 27, 2003 R. Gourley February 11, 2002 September 12, 2005

N.J.S.A. 11A:4-15(a) specifies that a working test period following a regular appointment for entry level law enforcement officers shall be 12 months. N.J.A.C. 4A:4-5.2(a) provides that the working test period shall not include any time served by an employee under provisional, temporary, interim or emergency appointment and shall begin on the date of regular appointment. Moreover, N.J.A.C. 4A:4-5.2(d)1 requires that persons appointed to entry level law enforcement titles shall serve a 12-month working test period and they shall not begin their working test period until notification is received by the appointing authority from the Police Training Commission of successful completion of the police training course. Therefore, notwithstanding the appellants’ assertions that they commenced the performance of Sheriff’s Officer duties at earlier times, in accordance with the above cited rules, the earliest possible dates that they could be considered to have been permanently appointed would be the dates when they completed their PTC training. In this light, appellants Savkov and Torres, as well as Mr. Fattal and Mr. Potenzone, who completed their PTC training on January 27, 2005, are the only appellants who could arguably have more seniority than any of the individuals (other than possibly Mr. Shinn) that they claim

10 The appellants did not provide an asserted start date of Sheriff’s Officer duties. This date reflects the date of appointment as Sheriff’s Officer recorded in DOP records.

have less seniority. It must emphasized that the officers whom the appellants claim have less seniority were either permanently appointed from a Sheriff’s Officer list and certification, intergovernmentally transferred with the agreement to retain their seniority from the sending jurisdiction, or had their titles laterally changed at earlier dates. Further, two individuals the appellants list, Lisa Cameron and Jose Sayan, had their titles changed as a result of Lateral Title Change and were also returned to their former title of County Correction Officer. With respect to appellants Savkov and Torres and Mr. Fattal and Mr. Potenzone, although they completed their PTC training in January 2005, the Sheriff’s Office never requested that their titles be laterally changed at that time. Moreover, each of these individuals’ names was certified from a County Correction Officer list. For example, Mr. Torres’ name was certified from the County Correction Officer (S9999D) list on October 5, 2004 (OL041834). He responded as interested to the County Correction Officer position, and the Sheriff’s Office returned this County Correction Officer certification indicating his appointment on January 31, 2005. It is noted that the Sheriff’s Office returned this certification on September 6, 2005. However, DOP records also indicate that the Sheriff’s Office requested that the names of 20 other County Correction Officers titles be laterally changed to Sheriff’s Officer with an effective date of September 12, 2005 during this time frame. Mr. Fattal, Mr. Potenzone, and Mr. Savkov’s names were certified from the County Correction Officer (S9999F) list on September 22, 2005, they all responded as interested in the County Correction Officer position, and the Sheriff’s Office returned this County Correction Officer certification indicating their appointments on December 22, 2005. The Sheriff’s Office returned this certification on March 13, 2006 and it was disposed by the DOP on December 22, 2006. Significantly, this certification was returned by the Sheriff’s Office after the Board’s December 21, 2005 decision in Waslik prohibiting lateral transfers as the exclusive means of effecting Sheriff’s Officer appointments. Additionally, a certification was issued for Sheriff’s Officer on January 13, 2006, which contained the name of Mr. Fattal (OL060109) but he was not reachable for appointment. Therefore, had the intention been to appoint these appellants as Sheriff’s Officers, the Sheriff’s Office could have done so either through a lateral title change in September 2005 or on the Sheriff’s Officer certification that was issued as a result of Waslik. This was not the case. Moreover, there is no record of any of these appellants ever challenging their classification as County Correction Officers during this time frame. As such, the record does not substantiate earlier appointment dates for these officers and they have not established that the named officers have less title seniority.

In response to the appellants’ allegations that there are 31 interim, temporary or provisional appointees serving in the County Correction Officer title, as part of its pre-layoff actions, the Sheriff’s Office terminated 11 provisional and/or interim County Correction Officers on January 18, 2008. Additionally, DOP records reflect that eight employees are now serving in interim appointments as County Correction Officers and there are no provisional appointees serving in the title. Regarding the assertion that there are provisional or temporary non-law enforcement employees currently serving and these individuals should be eliminated before any action was taken with respect to the appellants, as indicated earlier, the Sheriff’s Office targeted numerous non-law enforcement employees as part of its layoff plan. Similarly, the Sheriff’s Office terminated nine unclassified Sheriff’s Investigators as part of its pre-layoff actions. Therefore, there is no basis for the Board to take action regarding these matters. In response to Mr. Vergel, since he did not complete the working test period as a Sheriff’s Officer, he was returned to his permanent title of County Correction Officer. This would not be considered a “non-permanent” appointment. (5) Appeals of Zivojin Savkov and Robert Torres concerning the date of their lateral title change from County Correction Officer to Sheriff’s Officer With respect to the requests of Mr. Torres and Mr. Savkov, for the reasons stated in (2), the Board can find no basis on which to grant them an earlier appointment date to Sheriff’s Officer. The situation faced by these appellants is unusual and creates a unique dilemma. Both appellants maintain that they never completed the required training for County Correction Officer, never worked in the Jail, but that they completed the Basic Course for Police Officers and consistently performed the duties of a Sheriff’s Officer. Thus, even though their records reflect that they were permanently appointed as County Correction Officers, they effectively could have never achieved permanent status in that title because they did not complete the required training and could not have been subjected to a working test period. See N.J.S.A. 52:17B-68.1. On the other hand, they were never formally appointed as Sheriff’s Officers until November 21, 2007, and, for the reasons stated earlier, cannot be considered permanent in that title either. In other words, although employed by the Sheriff’s Office for approximately five years, Mr. Torres and Mr. Savkov never achieved permanent status in any competitive career service title. This situation is clearly unfortunate, as Mr. Torres and Mr. Savkov simply followed the employment process and career path that were presented to them by the Sheriff’s Office. However, the Board is constrained by the potential domino

effect on the layoff chain and their failure to challenge their classifications at an earlier date to provide them with an equitable remedy of an earlier appointment date that would, in effect, shield them from being displaced as Sheriff’s Officers. The Board’s decision in Sheriff’s Officers and County Correction Officers Relief was designed to provide individuals in this unfortunate situation the only remedy the Board could reasonably offer. (6) Christopher Patacco’s petition for reconsideration of Sheriff’s Officers and County Correction Officers Relief which denied his request to change the date of his lateral title change from County Correction Officer to Sheriff’s Officer N.J.A.C. 4A:2-1.6 provides that a petition for reconsideration must show the following:

1. That new evidence or additional information was not presented at the original proceeding which would change the outcome and the reasons that such evidence was not presented at the original proceeding; or

2. That a clear material error has occurred.

Like Mr. Torres and Mr. Savkov, Mr. Patacco has provided voluminous documentation indicating that he performed the duties of a Sheriff’s Officer since July 2003 and that he completed the Basic Course for Police Officer in April 2004. According to DOP certification records, Mr. Patacco’s name was certified from a County Correction Officer list on October 15, 2004 (OL041834), he responded to that certification as being interested in the County Correction Officer title, and the Sheriff’s Office indicated to the DOP that it appointed him to the County Correction Officer title on January 10, 2005. Between January 10, 2005 and September 12, 2005, the Sheriff’s Office requested the lateral title changes of 23 County Correction Officers to Sheriff’s Officer. Therefore, had the intention been to appoint Mr. Patacco as a Sheriff’s Officer, the Sheriff’s Office could have done so through a lateral title change up through September 2005. This was not the case. Moreover, there is no record of Mr. Patacco ever challenging his classification as a County Correction Officer during this time frame. As such, the record does not substantiate an earlier appointment date. Similar to Mr. Torres and Mr. Savkov, Mr. Patacco had been employed by the Sheriff’s Office for approximately five years, but never achieved permanent status in any competitive career service title since he could not have completed a working test period as a County Correction Officer or a Sheriff’s Officer. As indicated earlier, the Board is constrained by the

potential domino effect on the layoff chain and his failure to challenge his classification at an earlier date to provide him with an equitable remedy of an earlier appointment date that would, in effect, also shield him from being displaced as a Sheriff’s Officer. The Board’s decision in Sheriff’s Officers and County Correction Officers Relief was designed to provide individuals in this unfortunate situation the only remedy the Board could reasonably offer. Regarding the Sheriff’s Office’s utilization of the unclassified Sheriff’s Investigator title, N.J.S.A. 40A:9-117a permits the Sheriff to appoint a number of persons, not to exceed 15% of the total number of Sheriff’s Officers employed by the Sheriff, to the unclassified position of Sheriff’s Investigator. The implementation of this provision shall not result in the layoff of permanent Sheriff’s Officers. After the elimination of the 44 Sheriff’s Officer positions, DOP records indicate that the Sheriff’s Office employs 162 Sheriff’s Officers and 19 Sheriff’s Investigators. Based on its current compliment of Sheriff’s Officers, under N.J.S.A. 40A:9-117a, the Sheriff’s Office would be permitted to appoint a maximum of 24 Sheriff’s Investigators. Moreover, these appointments are discretionary and have not resulted in the displacement of any permanent Sheriff’s Officers. As such, there does not appear to be a violation of the Sheriff’s utilization of this title. (7) Request of Gabriel Galeano that his title be laterally changed from County Correction Officer to Sheriff’s Officer with a retroactive appointment date of February 27, 2003 DOP certification records demonstrate that Mr. Galeano’s name was certified from a County Correction Officer list, he responded to that certification as being interested in the County Correction Officer title, and the Sheriff’s Office indicated to the DOP that it appointed him to the County Correction officer title on December 22, 2003 from certification OL030725. Between December 22, 2003 and September 12, 2005, the Sheriff’s Office requested the lateral title changes of numerous County Correction Officers to Sheriff’s Officer. Additionally, the Sheriff’s Office specifically indicated those employees whom they desired to have their titles changed from County Correction Officer to Sheriff’s Officer in Lateral Title Change that was decided on November 21, 2007. Mr. Galeano’s name was not submitted by the Sheriff’s Office as one of the impacted employees. Therefore, had the intention been to appoint Mr. Galeano as a Sheriff’s Officer, the Sheriff’s Office could have done so either through a lateral title change up through September 2005 or it could have requested it as part of the relief it requested as part of Lateral Title Change. This was not the case. Moreover, there is no record of Mr. Galeano ever challenging his classification as a County Correction Officer during this time frame. As such, the record does not substantiate an earlier appointment date.

(8) Appeals of James Acito, Joseph Barrise, Nicholas Klein, and Jason Ekkers, to be placed on the Rice Bill List as Sheriff’s Officers if they choose not to return to their former County Correction Officer title and be laid off

In Sheriff’s Officers and County Correction Officers Relief, the Board stated that the Rice Bill contemplates completion of a comparable, documented working test period for non-Civil Service jurisdictions. Therefore, the employees of the Sheriff’s Office, a Civil Service jurisdiction, should not be treated any less favorably. As such, in this particular case, for Rice Bill list placement purposes only, the Board ordered the Sheriff’s Office to provide a list of Sheriff’s Officers who have completed a comparable 12-month working test period (based on the date of completion of GAP training and actual assignment of patrol duties). Such employees were to be placed on the Rice Bill list. Officers who have not completed an actual or comparable 12-month working test period as described above were not eligible for placement on the Rice Bill list. The Board limited the remedy to Rice Bill list placement only and did not create any rights for those employees to be placed on a special reemployment list for Sheriff’s Officer in Passaic County.

In compliance with the Board’s order, the Sheriff’s Office provided

listings of the officers who completed academy training more than a year before the date of the layoff and those who completed academy training less than a year before the date of the layoff. In its submissions, the Sheriff’s Office indicated that Mr. Acito, Mr. Barrise, Mr. Klein, and Mr. Ekkers completed their academy training less than one year before the date of the layoff and, consequently, did not complete the 12-month working test period. As noted earlier, N.J.A.C. 4A:4-5.2(d)1 requires that persons appointed to entry level law enforcement titles shall serve a 12-month working test period and they shall not begin their working test period until notification is received by the appointing authority from the Police Training Commission of successful completion of the police training course. N.J.S.A. 52:17B-68 requires that in order to accept a permanent appointment as a police officer11, such persons must first successfully complete a police training course. Therefore, the earliest possible date a Sheriff’s Officer could start the working test period is the date of graduation from the Basic Course for Police Officers. While it is possible, on equitable grounds, that those officers completing the training more than year before the layoff could complete a comparable 12-month working test period, it would be impossible for those completing the training less than one year before the layoff to complete the 12-month working test period. Moreover, since N.J.S.A. 52:17B-68 is statutory, the Board cannot relax its provisions in order to aggregate the 12- 11 N.J.S.A. 52:17B-17 defines “police officer” to include Sheriff’s Officers.

month period to include asserted provisional or temporary service as a Sheriff’s Officer, prior to completion of the required PTC. As such, the Board can offer the appellants no remedy in this situation. However, the Board was able to relax the provisions of the IGT rules in order to provide these employees with enhanced opportunities for placement in other positions through that program.

In response to the asserted reassignment of unclassified Sheriff’s

Investigators George, Casillo, Ryan, Nakasian, Woolrich, Lantgua, and Tarekyto to Sheriff’s Officer duties, it is initially noted that DOP records do not reflect the appointments of a George, Casillo, Ryan, or Nakashian in that title. Although DOP records do indicate that Woolrich, Lantgua, and Tareky serve in the Sheriff’s Investigator title, as noted earlier, it does not appear that the Sheriff’s Office is employing more Sheriff’s Investigator’s than the statute permits.

Finally, the Board must underscore that other than good faith appeals

of the layoff, which would be referred to the Office of Administrative Law for a hearing, it will not accept any additional petitions on this matter, for any reason, by the appellants. At this juncture, the parties have had ample opportunity to present any and all challenges at the administrative level regarding the matter of their classifications and appointment dates and any further review should be done in a judicial forum.

ORDER Therefore, it is ordered that the Passaic County Sheriff’s Office pay the displaced County Correction Officers who were not provided the required 45-day notice the number of days pay specified in Attachment A. However, the remainder of these appeals and the request for reconsideration be denied.

This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.