“Job Banding” is Bigger than Bridgegate

The upcoming fight over the separation of powers between the NJ State Legislature and the Governor involving the Civil Service Commission’s approval of “job banding” could make Bridgegate look like a snowball fight.

The Democrats and Governor Christie are in a dispute over how New Jersey will promote its public employees. The controversy centers on a 1992 amendment to the New Jersey State Constitution that has never been tested.  The power of the State legislature and the future of 80,000 state workers depend on the outcome.

At issue is a system referred to as “job banding,” which allows state employees to advance from one job within their band to another without being required to take a civil service test, which is currently required. It also allows advancement without competing with other applicants for the position. Under Christie’s proposal for job banding, state employees would be required to take the civil service exam before they are initially hired, but it would allow managers the ability to freely move and promote workers within the same band. Christie’s administration claims job banding would make the state government more efficient.

The Democrats and public sector unions argue job banding will lead to nepotism, cronyism and corruption. And, while the Civil Service Commission gave final approval to the proposal on May 7, Democrats in the Legislature, who have blocked job banding twice before, claim they will file a lawsuit to block it again.

If a lawsuit is filed, the Democrats will rely on the constitutional amendment that previously permitted them to halt the Commission’s action, which was the only time the Legislature has used that power. The amendment, passed in 1992, allows the Legislature to overrule an administrative rule deemed inconsistent with the intent behind the law. Both the Assembly and Senate passed a resolution in January of this year stating that job banding violates the legislative intent of the Civil Service Act, and provided the administration the required 30 days to respond. If the administration doesn’t make changes within this time period, the legislators can pass a resolution killing the proposal. Approval of the resolution is not required by the governor.

Each chamber of the New Jersey Legislature approved a resolution invalidating job banding. However, two weeks before the Legislature’s approval of the resolution, the Civil Service Commission altered its original proposal so that job bands would not apply to local or county governments, only to state government positions.

The administration claims that the alterations to the banding proposal made the Legislature’s vote on it irrelevant. The Civil Service Commission claims that due to the timing issue, the Legislature failed to follow the required procedures.

The Democrats claim the current battle is caused by Christie ignoring the Legislature’s constitutional powers. For now, as the disagreement rages on, all parties are working to understand the state constitutional power that has never been used before this dispute.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

“Job Banding” is Bigger than Bridgegate