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De Fazio v. Mayor and Council

March 13, 1951

CHARLES DE FAZIO, JR., PLAINTIFF-APPELLANT,
v.
THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, ETC., DEFENDANT-RESPONDENT



McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

The appendix in this case contains a stipulation from which the material factual events are collected. It was upon the same agreed statement of facts that this action was submitted to the Hudson County Court for determination without a jury. The final judgment of no cause for action is here impugned.

The City of Hoboken is governed in pursuance of the adoption of the commission form of government and the Civil Service Law. On May 23, 1947, Mr. Otmar J. Pellett occupied the office of assistant corporation attorney in the law department of the city established by ordinance on June 1, 1943. On May 13, 1947, new commissioners were elected, and after the organization of the group, the Director of the Department of Revenue

and Finance submitted to the commissioners the appointment of the appellant, Mr. Charles De Fazio, Jr., to a position denominated as assistant city attorney. On May 23, 1947, the appointment was by a resolution of the commissioners ratified and confirmed.

On June 3, 1947, the commissioners enacted an ordinance creating the position of assistant city attorney and vested the appointing authority in the Director of Revenue and Finance. At a regular meeting held on June 10, 1947, the commissioners received from the Director of Revenue and Finance a communication bearing date June 4, 1947, announcing his appointment of the appellant to the position of assistant city attorney at an annual salary of $6,250 payable semi-monthly.

To effectuate the program it was evidently deemed prudent to repeal the former ordinance of 1943 by which the position of assistant corporation attorney occupied by Mr. Pellett was originated. To that end an ordinance was adopted by the commissioners on June 3, 1947, to become effective June 14, 1947, repealing the former ordinance.

It is noticed that the commissioners determined that the former ordinance should be repealed "for reasons of economy as well as the resulting efficiency from a re-organization of the law officers of the City."

In the situation, the favorable consideration of the Civil Service Commission was required. Camden v. Civil Service Commission , 129 N.J.L. 354 (Sup. Ct. 1943), affirmed 130 N.J.L. 532 (E. & A. 1943). The action of the city commissioners and of the Director of Revenue and Finance was by the prompt appeal of Mr. Pellett appropriately brought to the attention of the Civil Service Commissioners, who rendered a decision on September 9, 1947, from which we extract this quotation: "All that has been done by the City in this case has been to change the designation of the individuals who are to perform the legal work of the city. A mere change in title or designation of the agency, individual or individuals who are going or who are to do the legal work of the City can have no effect upon the rights or status of employees in the classified

civil service. If economy is sought a reduction in forces will accomplish the ends sought."

The Civil Service Commission ordered "that the action of the Board of Commissioners, the Director of the Department of Revenue and Finance, or the City Attorney of the City of Hoboken, or of any of them, in removing or dismissing from or discontinuing the services of Otmar J. Pellett as Assistant Corporation Attorney or Assistant City Attorney, effective on or about May 23, 1947, be and the same is hereby set aside and the said Board of Commissioners, the Director of the Department of Revenue and Finance and the City Attorney or any or all of them be and they are hereby directed to restore the said Otmar J. Pellett to the pay and title given or undertaken to be given to Charles J. De Fazio, Jr., effective as of the date of his removal or discontinuance from such service."

The writ of certiorari by which the order of the Civil Service Commission was transported for review by the Supreme Court was dismissed. Hoboken v. Civil Service Commission , 137 N.J. Law 72 (Sup. Ct. 1948). The judgment of the Supreme Court was affirmed. 137 N.J. Law 728 (E. & A. 1948). In the opinion of the Court of Errors and Appeals may be found the following observation: "In fact, the purpose seems to have been solely to defeat the Civil Service Law and place in office a new incumbent." So, it may be said that the displacement of Mr. Pellett ...


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