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Lavitz v. Civil Service Commission

Decided: October 6, 1958.


Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.


This is an appeal under R.R. 4:88-8 from the refusal of the Department of Civil Service to admit appellant Jacob Lavitz to an examination for the office of County Welfare Director of Middlesex County because he was not a resident of that county. The essential facts have been stipulated.

Lavitz is a resident of Union County and has been Supervisor of Casework for the Union County Welfare Board for more than 4 1/2 years. On November 1, 1957 the Department of Civil Service announced that an open competitive examination would be held for the position of Director of Welfare, Middlesex County, "open to citizens, 12 months resident in Middlesex County." The examination announcement included the following note: "The Director of Welfare also serves as Director of the Middlesex County Hospital for the Chronically Ill." Lavitz made formal application for the examination, his covering letter stating that the residence restriction was not warranted and requesting admission to the examination. The Department rejected the application because Lavitz was not a resident of Middlesex County.

The parties have also stipulated that each county welfare board fixes and pays compensation for all positions, including that of Director of Welfare, in accordance with the compensation plan it adopts. This plan must be approved by the Division of Welfare, Bureau of Assistance, in the State Department of Institutions and Agencies, in accordance with Ruling No. 11 of the Bureau of Assistance. This ruling was promulgated pursuant to N.J.S.A. 44:7-6, its purpose being to set standards justifying approval by the state authorities of the administrative expenses of county welfare boards. Such approval is necessary to qualify a county welfare board for the receipt of state contributions to its activities; the state contributions, in turn, are received by the State from the Federal Government and are subjected to federal auditing.

The single question to be determined is whether an applicant for the position of County Director of Welfare may

legally be required by the Department of Civil Service to be a resident of the county in and for which he will serve. Resolution of the problem involves a consideration of several provisions found in Revised Statutes, Title 44 (Poor) and Title 11 (Civil Service).


Preliminarily, we may observe that our welfare legislation evidences a general policy that welfare programs be locally oriented and administered. This is made manifest by a study of the wide range of welfare board programs and duties covered by Title 44, portions of Title 30, and other statutes, demonstrating that the county, and sometimes the municipality, is made the fundamental welfare unit both from the standpoint of administration and financial responsibility. See, for example, R.S. 44:1-1 et seq. and 44:4-1 et seq. , optional statutes relating to settlement and relief of the poor; R.S. 44:5-1 et seq. , medical care and hospitalization of the poor by municipalities and counties; R.S. 44:6-1 et seq. , free dental clinics; R.S. 44:7-1 to 35, old age assistance; N.J.S.A. 44:7-38 et seq. , permanent and total disability assistance. The county, through its welfare board, is required to perform substantial functions in connection with applications for the care or custody of children, N.J.S.A. 30:4 C -24; the settlement of claims due the welfare board as reimbursement of financial assistance furnished, N.J.S.A. 30:5-4.4; home life assistance for dependent children, N.J.S.A. 30:5-36 et seq.; the administration, under state supervision, of blind relief, N.J.S.A. 30:6-3 et seq. In Middlesex County, as noted in the Civil Service announcement, the director of welfare also serves as director of the Hospital for the Chronically Ill.

In some welfare programs the State participates little or perhaps not at all. Other programs bring together, under county administration and for use in county institutions or for county residents, substantial federal and state as well as county funds -- see, for example, N.J.S.A. 44:7-25

(old age assistance); N.J.S.A. 44:7-40 (permanent and total disability assistance). These latter programs are carried out under state supervision, N.J.S.A. 44:7-6.

Prior to 1931 only two or three counties, but not Middlesex, had adopted the optional provision of Title 44, chapters 1 and 4; R.S. 44:1-1 et seq. and 44:4-1 et seq. Although not involved in this case, the provisions of chapter 4 reveal a consistent legislative pattern and intent of centering county welfare programs in the county welfare board, to be administered through a director of welfare as a county officer. See R.S. 44:4-1 ("county welfare board" and "director of welfare" defined); 44:4-11, 20, 24, 26, 30-32, 33, 35, 36, and such sections as R.S. 44:4-40, 93, 102, 104, 107 and 120 (enumerating some of the specific duties of the county welfare board and the county director) -- all as amended.

The Middlesex County Welfare Board came into existence mandatorily, together with all other counties which had not adopted the provisions of chapters 1 or 4 of Title 44, by virtue of L. 1931, c. 219. This act preceded the Federal Social Security Law of 1936 and provided for old age relief on a county-oriented basis. The county welfare board, where it existed, was constituted the county bureau of old age relief, and in counties which had not adopted chapters 1 or 4 of Title 44, the county welfare board was made mandatory, together with the office of "Director of Old Age Relief." L. 1931, c. 219, §§ 4, 5.

The 1931 act was repealed by L. 1936, c. 29, § 1, and was superseded by L. 1936, c. 31 (R.S. 44:7-1 et seq.), which was also a mandatory old age assistance statute. This law was one of the several social welfare enactments adopted in 1936. L. 1951, c. 139 (N.J.S.A. 44:7-38 et seq.) later added mandatory duties to each county welfare board with respect to permanent and total disability assistance.

L. 1936, c. 31 (R.S. 44:7-1 to 35) was enacted to take advantage of those sections of the Federal Social Security Act which appear as 42 U.S.C.A. §§ 301 to 306. A brief review of ...

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