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City of Jersey City v. Department of Civil Service

Decided: November 14, 1950.


Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.


The City of Jersey City appeals from an order of the Department of Civil Service, State of New Jersey (hereafter referred to as "the Department"), directing that the respondents, William J. Timney, James F. Maloney, Edward M. Malone, John J. Meehan, Joseph M. Lepis and Frank A. Verga, be restored to their pay and positions as legal assistants, effective as of August 20, 1949, on the ground that they had been illegally and summarily dismissed without any charges being preferred against them and without a hearing. William J. Timney filed a cross-appeal asserting that the Department erroneously failed to direct his reinstatement to the position of municipal court clerk.

On the certification of the city to the Department, the plaintiffs were recorded as holding the title of legal assistant, [10 NJSuper Page 144] which, under R.S. 11:22-26 was in the exempt division of the classified civil service. Timney was appointed January 2, 1935, as acting clerk of the First Criminal Court of Jersey City; on February 1, 1936, as legal assistant in the law department; on January 1, 1949, as clerk of the Municipal Court, Part I, and chief clerk of all parts, which appointments were certified to the Department as permanent. James F. Maloney, Edward M. Malone, Joseph M. Lepis, John J. Meehan and Frank A. Verga were appointed legal assistants on July 1, 1937, December 1, 1938, November 16, 1942, November 19, 1934, and December 1, 1946, respectively, and their appointments were duly certified to the Department. During the ensuing years, the budget ordinances of Jersey City contained items in the appropriation reading "Assistants to Corporation Counsel" and "Court Clerks and other Employees" and appropriated sums of money therefor from which the respondents' salaries were paid. Timney was notified on August 16, 1949, that his services in the Municipal Court were no longer required and he was directed to report to John B. Graf, Corporation Counsel, for assignment. On August 16, 1949, he was advised by the corporation counsel that after August 20th his services as legal assistant would be required no longer and he would be dismissed from his position as of that date. The other legal assistants were similarly notified by the corporation counsel by letters dated August 16, 1949, that their services would be terminated on August 20th. While not affecting the issue here, the commission adopted an ordinance on October 18, 1949, creating a law department, under the authority of which several legal assistants were appointed to perform duties similar to those theretofore performed by the respondents. Under the authority of the law known as the Walsh Act, the City of Jersey City adopted the commission form of government in 1913, and has been since governed thereby. At the election in May, 1949, an entirely new board of commissioners was elected and thereafter assumed office. It was the action of the new regime that brought about the dismissal of the respondents and the

adoption of an ordinance creating the aforementioned law department. The respondents appealed from their dismissal to the Department. Following a hearing, the Department directed that the respondents be restored to their positions and pay as legal assistants, holding, inter alia:

"The records of the Civil Service Department show that appellants were recorded as holding the title of Legal Assistant. At the time their appointments were recorded, the position of Legal Assistant was in the exempt division of the classified civil service pursuant to R.S. 11:22-26. They are protected by R.S. 11:21-6 and cannot be dismissed, except by the procedures set forth in the law."

The City of Jersey City contends that the Department was in error in restoring respondents to their positions, on the ground that they had never been lawfully appointed, either originally or at any time thereafter; that their appointments were a nullity, having been made by resolution, and that they were only de facto employees and never did nor could they acquire the status of de jure employees. The Department refused to pass upon the validity of their appointments, holding that it had no such jurisdiction.

In the briefs of the respective parties, considerable discussion is devoted to the applicability of P.L. 1894, c. 258, p. 385, and P.L. 1911, c. 175, p. 261, R.S. 40:171-115 et seq. However, we deem it unnecessary to discuss these acts for the reason that, at the argument, respondents conceded that they were not applicable to the issue here and the appellant, City of Jersey City, contended that the 1911 act was repealed in toto by P.L. 1920, c. 65, p. 117, R.S. 40:171-112 et seq. We are in accord with the view that the 1894 and 1911 acts have no applicability to this issue. The act of 1920 (P.L. 1920, c. 65, p. 117), which we think is controlling, provides as follows:

"1. In each city of the first class in this State there shall be established a law department, which shall consist of a city or corporation counsel, appointed by the governing body of such city, a private secretary, appointed by the city or corporation counsel, and two assistant city or corporation counsels, and as many legal assistants, clerks and other employees as the city or corporation counsel, with the consent

of the governing body, shall appoint. Such assistant city or corporation counsels and private secretary shall be removable at the pleasure of the city or corporation counsel, but the legal assistants, clerks and other employees shall be deemed to be within purview of an act entitled 'An act regulating the employment, tenure and discharge of certain officers and employees of this State, and of the various counties and municipalities thereof, and providing for a Civil Service Commission, and defining its powers and duties,' approved April tenth, one thousand nine hundred and eight, and the acts supplementary thereto and amendatory thereof, and shall not be removed except as in said act provided.

"2. The city or corporation counsel shall be chief law officer of the city, and attorney or solicitor of record in all court proceedings wherein the city or any of its officers, boards, bodies or commissions, by reason of any suits growing out of their official position, shall be a party. He shall advise all city officers and bodies of any matters relating to city government, when requested to do so, and shall supervise the preparation of all contracts deeds and other documents and all statutes, ordinances and resolutions referred to the law department for preparation. The other members of the law department shall perform such duties therein as may from time to time be assigned to them by the city or corporation counsel."

On July 25, 1921, the then corporation counsel notified the board of commissioners in writing that he had appointed the first and second assistant corporation counsel and four legal assistants, "subject to your approval and in accordance with c. 65, P.L. 1920." By resolution of the commission, the appointments and salaries were confirmed. The subsequent appointments of the legal assistants whose positions are involved in this litigation, were similarly made by ...

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