On appeal from Superior Court, Appellate Division, whose opinion is reported in 10 N.J. Super. 140.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Burling, J.
This is an appeal from a judgment of the Appellate Division of the Superior Court reversing a determination of the Civil Service Commission, Department of Civil Service, State of New Jersey. The appeal is addressed to this court under a grant of certification heretofore made by us on petition therefor.
The appellants William J. Timney, James F. Maloney, Edward M. Malone, John J. Meehan, and Frank A. Verga, hereinafter referred to as the defendants, and one Joseph M. Lepis, were formerly employed as legal assistants in the Law Department of the City of Jersey City. Having been dismissed therefrom, these individuals filed separate petitions for reinstatement with the Department of Civil Service of the State of New Jersey. The Civil Service Commission, Department of Civil Service, after a hearing, determined that the dismissals were not effected in accordance with the procedures established by law, set aside the dismissals and ordered that all six be restored to their pay and position, effective as of the date of dismissal. From this action of the Civil Service Commission, the City of Jersey City appealed to the Appellate Division of the Superior Court. The judgment of that court ordered the reversal of the order of the Commission and set the same aside. Thereupon the defendants petitioned this court for certification (Joseph M. Lepis did not join therein) and we granted that petition. There are certain features of this case which prompt us preliminarily to set forth at greater detail the situation in which the parties hereto are involved, the history of this controversy and a narrative of the municipal action from which it stems.
The Civil Service Act, P.L. 1908, c. 156, was adopted by Jersey City on November 7, 1911. The commission form of government, under the Walsh Act, was adopted by Jersey City in May, 1913, and on June 20, 1913, the newly created
board of commissioners adopted a resolution purporting to create a law department, consisting of a corporation counsel, a corporation attorney, an assistant corporation attorney and "such other assistants as may be hereinafter named by this Board." This resolution provided for the qualifications, terms of office and salary of the corporation counsel, corporation attorney and assistant corporation attorney, but failed to make provision for qualifications, salaries or compensation for other assistants. At that time there were in effect two statutes concerning law departments in cities of the first class (in which class Jersey City then stood). The earlier of these acts was P.L. 1894, c. 258, and the later was P.L. 1911, c. 175. Both of these acts will be discussed at length hereinafter.
From time to time between the date of the resolution of the board of commissioners of June 20, 1913, and December 28, 1920, that board made appointments of "assistants to the corporation counsel" by resolution, apparently without prior appointment by the corporation counsel (as required by the 1911 act, supra). The appointing resolutions fixed no term of office; they provided for annual salaries payable semi-monthly.
On April 5, 1920, there became effective another act of the Legislature entitled "An Act to establish a law department in cities of the first class in this State." P.L. 1920, c. 65. This act will be discussed at length in a later portion of this opinion.
On or about December 28, 1920, the corporation counsel of Jersey City appointed an assistant corporation attorney; this appointment was confirmed by resolution of the board of commissioners on December 28, 1920. Similar action appointing an "Assistant to the Corporation Counsel" was taken in March, 1921. In May and July, 1921, the corporation counsel, purporting to act under the 1920 statute, supra, informed the board of commissioners that he had appointed two assistant corporation counsels and four temporary legal assistants. The board undertook to hold such action
erroneous and by resolution made the appointments itself, at designated salaries ranging (for the "temporary" legal assistants) from $2,500 to $4,500 per annum. From January, 1922, however, appointments in the Law Department of Jersey City were generally made by the corporation counsel and concurred in or ratified and confirmed by the board (although in some instances the board made the appointment). Action so taken by the board was by resolution, wherein it named the individual appointee and stated the salary.
In passing, it is noted that in 1928 the Legislature passed an act amending section 1 of P.L. 1920, c. 65, supra, to permit appointment of an indefinite number of assistant city or corporation counsels (rather than two only, as originally provided). P.L. 1928, c. 97. This amendatory act has no bearing upon the issues involved in this appeal.
We now come to the appointments of the defendants who have appealed. Defendant Timney was appointed legal assistant by the corporation counsel at a salary of $4,100 effective February 1, 1936; this appointment was "approved and confirmed" by resolution of the board of commissioners on February 4, 1936. Defendant Maloney was similarly appointed at a salary of $4,000, subject to payroll deductions then in effect, from July 1, 1937, and his appointment approved and confirmed by resolution of the board on July 6, 1937. Defendant Malone, who appears to have resigned as "Utilityman" in the law department, was appointed by the corporation counsel as assistant corporation counsel at an annual salary of $4,000, effective December 1, 1938; the board, by resolution on December 6, 1938, "approved and confirmed" his appointment as "Legal Assistant in the Law Department" from December 1, 1938, at an annual salary of $4,000, subject to payroll deductions then in effect. Defendant Meehan was appointed legal assistant by the acting corporation counsel at $4,000 per annum effective November 15, 1940; "approved and confirmed" by resolution of the board of November 19, 1940. He resigned the position on
July 19, 1943, but was again appointed as legal assistant, by the corporation counsel, at a salary of $5,000 per annum effective December 19, 1944, "approved" by resolution of the board on December 19, 1944. Defendant Verga was appointed by the corporation counsel as legal assistant at an annual salary of $4,000 effective December 1, 1946; "approved and confirmed" by resolution of the board on or about December 2, 1946. Various salary increases for the majority of the defendants appear to have been authorized from time to time by the board after August, 1944, by resolution following recommendations by the corporation counsel or department heads. There appears to have been no ordinance adopted by Jersey City creating any offices or positions in the law department, or fixing salaries or terms of office of officers and employees therein up to and including the date of the dismissal of the defendants.
Defendant Timney, while still a legal assistant, had been assigned to the Department of Public Safety; he was later assigned under the Department of Public Safety to the First Criminal Court of Jersey City. Thereafter, under P.L. 1948, c. 264, as amended by P.L. 1948, c. 394, Jersey City adopted an ordinance establishing a municipal court, effective January 1, 1949. By resolution on December 27 or 28, 1948, by virtue of section 23 of P.L. 1948, c. 264 (authorizing the governing body of a municipality by resolution to designate any officer or employee of the municipality to serve as clerk of the municipal court) the board of commissioners designated Timney, recited as being "now employed as Legal Assistant to the Corporation Counsel of Jersey City" to "serve as Clerk of the Municipal Court of Jersey City, Part I," and to "serve as Chief Clerk of all the parts of the Municipal Court of Jersey City" with a salary of $7,500 per annum effective January 1, 1949. By resolution of the board of August 16, 1949, this designation was "discontinued and terminated," salary increases previously granted him were rescinded and he was "returned to the position of legal assistant" at a salary of $4,100 per annum.
On or about August 16, 1949, the corporation counsel dismissed the defendants from their positions as legal assistants in the law department of Jersey City, effective August 20, 1949. The board of commissioners, by separate resolutions, on September 6, 1949, "ratified and confirmed" each dismissal. It was to set aside these dismissals that the defendants instituted proceedings for review in the Department of Civil Service of this State. The proceedings resulted in an order in their favor, reversed on the city's appeal by a judgment of the Appellate Division, which latter judgment has been certified to us following the grant of defendants' petition therefor, as hereinbefore recited.
There are five questions involved on this appeal: (a) whether an ordinance was necessary to create and to fix the salary of the position of legal assistant in the law department of a city of the first class in this State; (b) whether in the case of defendant Timney a salary ordinance was necessary in view of P.L. 1936, c. 6; (c) whether defendant Timney is entitled to restoration to his additional post of clerk of the municipal court, Part I, and chief clerk of all parts of the municipal court; (d) whether defendants Meehan and Verga, honorably discharged war veterans, could be removed from their positions as legal assistants except for good cause shown after a fair and impartial hearing; and (e) whether the dismissals should be set aside as having been effected for political reasons. We shall consider these questions in what we deem to be the order of their importance.
IS AN ORDINANCE NECESSARY TO CREATE AND TO FIX THE SALARY OF THE POSITION OF LEGAL ASSISTANT IN A CITY OF ...