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City of Jersey City v. Babula

Decided: July 13, 1959.


Goldmann, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.


[56 NJSuper Page 535] Between January 1 and May 4, 1957, 18 patrolmen employed by the City of Jersey City were

assigned by various directives of the municipal police department to serve as detectives, and their salaries were increased accordingly. On May 14, 1957 an election was held in Jersey City for members of the board of commissioners. On June 1 and July 1, 1957 pursuant to the order of a newly-elected commissioner the 18 detectives, all of the opposite political persuasion, were "reassigned" to their former patrolman's rank, with consequent reduction in pay. A detective earns from $517.50 to $917.50 more pay per year than a patrolman.

The 18 patrolmen (hereinafter "appellants") thereupon challenged their demotions by appealing to the Civil Service Commission. It should be noted that during the same time periods mentioned above 75 patrolmen had been assigned to serve as detectives and thereafter returned, but only 18 appealed. After a hearing, the Civil Service Commission determined that the position of "detective" is a rank in Jersey City; that the rank of detective is a higher rank than that of patrolman and, by reason of the differential in pay, is a promotion; that, in order for the appointment to be permanent, it must be made from a list of eligibles established pursuant to promotional examination; that, prior to the establishment of such a list, any appointments made to the position of detective are temporary only; that, no promotional examination having been given to the appellants, the rank was temporary and subject to reduction at any time, except as to those who received tenure by virtue of R.S. 40:174-148 (hereinafter the "George Act").

Both Jersey City and the appellants appeal from the Commission's determination. The city is aggrieved by that portion of the ruling which directs the holding of a promotional examination. It contends that the appellants were properly demoted, not because they had never taken an examination, but because they had been merely "detailed" to serve as detectives in the first place and therefore could have been reassigned for any reason by the commissioner acting within his discretion as Director of Public Safety.

A cross-appeal is taken by the demoted patrolmen. They object to that portion of the commission's ruling which held their appointments to the detective position to be temporary. They say promotional examinations were not required as a condition precedent to permanent appointment at the time they were appointed and that their appointments were validly made on a permanent basis. Neither the city nor the appellants appeal from the determination that there is a permanent rank of detective in the Jersey City police department. See N.J.S.A. 11:22-34; compare State ex rel. Reilly v. Civil Service Commission , 8 Wash. 2 d 498, 112 P. 2 d 987, 134 A.L.R. 1100 (Sup. Ct. 1941).

We deal first with the appellants' contention that they achieved permanent status from the outset of their respective appointments, with full rights of tenure attaching immediately. No authority is cited to support this contention. Instead, the appellants' chief argument is that the George Act (R.S. 40:174-148) is inapplicable. That statute provides:

"1. Whenever, in any police department of any city of the first class in this state, any member of such department shall have been appointed or designated as detective under or by authority of a resolution of the governing body of such city, and by and with the consent of the state civil service commission, and shall have performed the duties of such detective for a period of five years, he shall not hereafter be reduced in rank or restored to the performance of duties ordinarily performed by patrolmen in such department except upon charges and after hearing. Hereafter any such person shall hold the rank of detective in such department and be entitled to the emoluments thereof."

Appellants argue that this statute should not be construed as requiring five years' service before a permanent position can be achieved, but merely as protecting from demotion those who have already served five years as acting detectives. Appellants maintain that the statute was designed to correct a situation existing for years which found members of the police force functioning as detectives, but without a detective's pay, and that the George Act conferred

upon such acting detectives pay commensurate with duties performed, plus protection from discharge except upon charges brought and hearings held. From this, appellants come to the apparent conclusion that the statute does not apply to those who were appointed as detectives and did in fact receive detectives' pay during their appointment, and that as to such persons there is nothing preventing their appointments from being considered permanent.

We find no merit in this position. Irrespective of what evil the George Act was designed to meet -- indeed, even assuming its inapplicability, the fact remains there was nothing in the nature of appellants' appointments to indicate they thereby succeeded to permanent assignments as detectives. We note that the city has interpreted R.S. 40:174-148 as allowing the detail of a detective to be terminated at will by the appointing authority prior to the running of the five-year period. The personnel action forms, filed with the Department of Civil Service, reveal that the appellants had been merely "detailed" to serve as detectives. In one such form, the word "Promotion" was crossed out and the word "Detail" inserted in its place, as indicating the particular personnel action desired by the appointing authority. And the transitory nature of the assignment is further indicated by the notation on the form that additional compensation was provided by ordinance "when so detailed as a Detective." Thus neither the police department nor the Civil Service Department ever approved these details as permanent positions, and nothing has been submitted on this appeal to impel us to a contrary conclusion. We are satisfied, therefore, that appellants' rights, privileges and duties in ...

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