Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiffs City of Jersey City and Andrew G. Sapienza appeal from a series of orders of the Department of Civil Service (Department) culminating in the reclassification of a position held by Sapienza from hospital administrator to administrative clerk, certifying Mrs. Isabell Spence to that position in place of Sapienza, and denying plaintiffs a hearing on the issues involved.
Mrs. Spence qualified by Civil Service examination for the position of administrative secretary in the Jersey City Department of Revenue and Finance and was appointed to that position in 1952. She continued in the position until June 1957, at which time it was eliminated (allegedly for economy reasons) and she was demoted to administrative clerk. She thereupon appealed to the Department of Civil Service, claiming that her demotion was politically motivated. While the appeal was pending the city further demoted her to senior clerk stenographer, and shortly thereafter removed her from the classified service altogether. These actions were based on an opinion given by counsel for Jersey City that the ordinance purportedly creating the position of administrative secretary was legally ineffective for the purpose, so that Mrs. Spence had not held a legally existent position and consequently had no civil service status.
The Department upheld the city's elimination of the post of administrative secretary, but ordered Mrs. Spence restored to the position of administrative clerk. It refused to consider the legality of her original appointment, holding that the issue could only be raised by directly attacking the validity of the ordinance in the courts.
The Civil Service decision was rendered April 15, 1958. There was no further appeal by either side. However, Mrs. Spence was never reinstated as administrative clerk in the Revenue and Finance Department, for Jersey City purported to abolish that position also. Her appeal from this action was still pending when subsequent events rendered the issue moot, at least for the moment.
On July 14, 1958 Jersey City appointed Sapienza as a replacement for one Romanowski in a position it designated as hospital administrator. (The position of hospital administrator is considered by the Department to be "the highest occupational level in a hospital.") On the same day the city requested the Department to approve Sapienza's appointment as "Temporary -- Pending Civil Service Examination." The Department, however, determined that the position to which Jersey City sought to appoint Sapienza was not one involving the extensive responsibilities and broad discretion attendant upon the position of hospital administrator, but rather was "on a clerical-semi-professional administrative level." It concluded that the duties involved in Sapienza's position were actually those of administrative clerk, and accordingly reclassified the position labelled by the city as "hospital administrator" to "administrative clerk."
The action so taken was based on an intra-departmental memorandum which stated that Sapienza lacked the education and experience required to perform the duties of a hospital administrator, and that (in the writer's opinion) it was "inconceivable to me that the duties being performed by Mr. Sapienza could be those of a Hospital Administrator." The writer therefore concluded that the position was, as noted above, "on a clerical-semi-professional level." This conclusion obviously stemmed from his personal evaluation of the tasks Sapienza performed -- a determination which, in turn, was influenced to some extent by the writer's opinion of Sapienza's education and experience. We note in passing that Sapienza had attended the Rutgers University School of Business for three years.
After reclassifying the position the Department temporarily certified Sapienza as administrative clerk. The following day, however, it permanently certified Mrs. Spence to the latter position from the reemployment list for administrative secretary, thereby replacing Sapienza. As already noted, Mrs. Spence had not yet -- despite the Department's earlier order -- been restored to the position of administrative clerk in the Jersey City Revenue and Finance Department. Consequently, she was still on the reemployment list for administrative secretary (the position she had held for five years and which had been abolished for economy reasons), and thereby had a prior right to any vacancy in a similar position. N.J.S.A. 11:22-10.1 and 10.2. The Department of Civil Service determined that this reemployment list was suitable to fill an opening in the lower position of administrative clerk.
Jersey City protested this action in a letter to the Department. It argued that the duties of the position it had designated as "hospital administrator" were in no way similar to those of administrative clerk. The former position, it contended, was one of high responsibility and wide discretion, involving complete supervision over 2,800 hospital employees, whereas an administrative clerk exercised comparatively little discretion and authority. It also repeated its claim that Mrs. Spence had no civil service status, and thus no reemployment rights, because the position she purportedly had held was legally non-existent. Further, said the city, if she did have reemployment rights, they did not extend beyond the Revenue and Finance Department. Although, as we have remarked, Jersey City's original application envisioned a competitive examination before a hospital director was permanently appointed, it now maintained that the position was one of "head of a department," and should therefore be unclassified. The city requested a hearing on all issues.
The Department denied the request because "there are no grounds for * * * appeal." This decision was apparently
based on another intra-departmental memorandum in which the writer informed the Director of Executive Services that Sapienza did not, nor did his predecessor Romanowski, "perform the duties normally assigned to a Hospital Administrator." The medical director, it was said, is the functional and titular head of the hospital, whereas his executive assistant operated "in a supervisory capacity in non-professional areas." The memorandum went on to state that from the writer's own knowledge the duties performed by the executive assistant are identical with those performed first by Romanowski and now by Sapienza. These are duties of the same kind as Mrs. Spence had performed as administrative secretary in the Revenue and Finance Department. Thus, since Sapienza performed only duties similar to those of an administrative clerk, the position to which he had temporarily been appointed was held to be substantially identical with that of administrative clerk.
The memorandum also pointed out that the Department had in 1951 denied a request to place the executive assistant in the unclassified service as a department head. Since Sapienza was performing the same duties he, too, should remain in the classified service. The city's restrictive interpretation of Mrs. Spence's statutory reemployment rights was also rejected.
We deal with plaintiffs' contention that the position of administrative secretary had no legal existence, that Mrs. Spence therefore acquired no civil service status by performing the duties of that position for five years, and thus she has no reemployment rights.
We shall first consider the intent and effect of the ordinance which purported to create the position of administrative secretary in the Jersey City Revenue and Finance Department; next, assuming the ordinance was not legally effective to create this position, was Mrs. Spence nonetheless a de facto holder of a position; and finally, whether as a de facto holder of a position she acquired the reemployment rights assured in N.J.S.A. 11:22-10.1 and 10.2.
In 1950 the disorganized state of Jersey City's personnel system became a cause of concern to the city commissioners. Ad hoc appointments, without a continued and systematized updating of the original civil service classifications, had over the years wrought chaos. The legal status of many employees was in doubt, lines of command were tangled, and the relationship between positions was unclear. To alleviate the situation the Department of Civil Service was requested to undertake a comprehensive reexamination and reclassification of the positions of Jersey City's 5,425 employees.
The Department, with the full cooperation of city officials, thereupon made a thorough study of the duties performed by each employee and the needs of each municipal department. In December 1950 it presented its City of Jersey City Reclassification Survey to the board of commissioners "in form appropriate for adoption * * *." The survey contained a description of each newly designated position, the number and names of the employees who would fill the positions (based, of course, on the duties already being performed by them), and the salary ranges of the positions. Isabell Churlin (now Isabell Churlin Spence) was designated for one of the two positions of administrative secretary.
On May 1, 1951 the Jersey City Board of Commissioners adopted Ordinance K-1322 which -- at least so it appeared -- adopted and put into effect the reclassification schedule. The ordinance recites the desire of the city to cooperate with the Civil Service Commission, establish a business-like personnel system, and remedy threats to the job security of many of its employees. The ordinance then declares:
"1. That the following classes of positions, duties of which are set forth as part of this Ordinance by reference to the 'City of Jersey City Reclassification Survey,' prepared by the New Jersey Civil Service Department, now on file in the office of the City Clerk of Jersey City, are hereby created; and
2. * * * [T]hat the salary ranges setting forth annual increments specified in the attached schedule are hereby adopted as
and for each and every class of position mentioned in said schedule, * * *."
The ordinance listed each position recommended by the reclassification survey, including those of administrative clerk and administrative secretary, and gave the salary range for each. It did not indicate the number of positions in each classification.
In December 1952 Mrs. Spence, who had served as a senior clerk-stenographer since 1949, was appointed administrative secretary after qualifying in a competitive examination for that position.
Although Jersey City has since 1951 acted upon the assumption that Ordinance K-1322 created the positions listed, in the number indicated in the reclassification schedule, it now maintains that the enactment did not create any position, but merely set out classifications that would apply to such positions as might subsequently be created by ordinance. It finds support for this argument in the failure of the ordinance to list the number of positions in each classification -- a defect which, it maintains, in itself renders the ordinance nugatory insofar as creating any positions in the city service is concerned. From the premise that Mrs. Spence has held a legally non-existent position, plaintiffs reason that her civil service status, and thus her reemployment rights, are likewise non-existent.
It must be kept in mind that Mrs. Spence does not seek reinstatement to the position of administrative secretary in the Revenue and Finance Department. What she seeks is appointment to a completely different position, one designated by the city as hospital administrator, and redesignated by the Department of Civil Service as administrative clerk. This position has a conceded legal existence. It was apparently created by an ordinance enacted subsequent to the 1951 ordinance mentioned above. The only significance in this case of the position of administrative secretary in the Revenue and Finance Department is that Mrs. Spence's reemployment
rights, and thus her right to the position she now claims, rest on her having been appointed to and served in that position for five years.
The view taken by plaintiffs is manifestly unfair, not only with regard to Mrs. Spence but also as it might affect any number of other Jersey City employees. This consideration, reinforced by our conclusion that plaintiffs' argument is basically without merit, impels us to bypass the procedural question of plaintiffs' right to raise the question of the legal efficacy of the ordinance in an appeal from the decision of an administrative agency (compare Swede v. City of Clifton , 39 N.J. Super. 366, 373-374 (App. Div. 1956), affirmed 22 N.J. 303 (1956) with Handlon v. Town of Belleville , 4 N.J. 99 (1950); Grunewald v. Weehawken Twp. Committee , 18 N.J. Super. 401 (App. Div. 1952); Weaver v. North Bergen Twp. , 10 N.J. Super. 96 (App. Div. 1950), reversed on other grounds, 6 N.J. 475 (1951)), and to dispose of the issue on its merits.
We have no doubt that Jersey City intended to create the positions listed in the ordinance in question, and indeed believed that it had legally and effectively done so. The introductory paragraphs clearly show that the ordinance was not designed merely as a framework of classification for positions subsequently to be established, but was to be the means of putting into effect the Civil Service Department's recommendations by actually creating the positions. Particularly significant is the seventh of these paragraphs:
"WHEREAS, the Board of Commissioners of the City of Jersey City feels that the legal creation of positions held by employees of the City of Jersey City will provide the security necessary for proper working relations between the [Commissioners] * * * and the employees of the City of Jersey City, resulting in a more efficient administration of the City's affairs and the providing of better services for the community at large; * * *." (Italics ours)
Plainly, the ordinance was intended to provide a solid legal foundation for positions whose validity was doubtful -- a problem which had partially motivated the reclassification
study -- and the words we have italicized gave notice of that fact to all interested parties.
There are specific provisions in the enacting paragraphs to the effect that the ordinance should not act to decrease the pay of any employee or to increase beyond the normal increment the pay of anyone then receiving less than the minimum level. Further, the ordinance was not to affect any employee who had already received an increment in 1951. All this indicates that as concerns the creation of positions, the ordinance was to have a present rather than a future effect. Considered in the light of these provisions it is clear that the words, "the following classes of positions * * * are hereby created," in paragraph 1 of the body of the ordinance, quoted above, purported to effect a present creation of positions -- an integration into the new classification of all those jobs which had developed haphazardly in the past.
What, then, of the failure to specify the number of new positions created in each classification? In Mullin v. Ringle , 27 N.J. 250 (1958), our Supreme Court dealt with a somewhat similar attack on this same ordinance. There it was held that the necessarily cumbersome and expensive procedure which would have been required to reproduce the 201-page description of the duties of the various positions justified the ordinance's incorporation by reference of the schedule of duties contained in the reclassification survey. This rationale would not, of course, justify the failure to include in the ordinance an indication of the number of positions created in each classification. Further, the ordinance under consideration does not in terms refer to the schedule as an indication of the number of positions created.
In Hale v. Town of Kearny , 99 N.J.L. 334 (Sup. Ct. 1924), the failure of an ordinance to indicate the number of positions it purported to create was held to be a defect fatal to the lawful creation of any such position. And see Nolan v. Witkowski , 56 N.J. Super. 480 (App. Div. 1959), just decided. Thus it may be that the ordinance is open to attack. But does it follow from this, as plaintiffs contend,
that Mrs. Spence, who for years performed the duties of a "position" purportedly created by this ordinance, has acquired no civil service reemployment rights? We are clear that it does not.
The problem involved in this case is different from that which arises when a party claims a right to occupy a position which was not legally created. See, e.g., Handlon v. Town of Belleville, Hale v. Town of Kearny , above. As we have observed, plaintiffs do not challenge the legal existence of the position to which the Department of Civil Service has certified Mrs. Spence -- that which the city designated as hospital administrator and the Department has reclassified as administrative clerk. Their argument on the basis of the Handlon case, that there is no res over which the Department has jurisdiction, is misplaced; the res is the position which has been occupied by Sapienza and to which the Department has certified Mrs. Spence. The conceded legal existence of this position is what distinguishes the present case from Handlon , where the position to which the employee sought to be restored was held to have no legal existence.
Further, as concerns the creation of the position of administrative secretary in the Revenue and Finance Department, the legality of which plaintiffs do challenge, we are not called upon to pass on someone's right to hold and receive the emoluments of that position since Mrs. Spence's claim to such a right has been determined against her. The position has been legally abolished; as said, the only benefit she now seeks from that position is the reemployment rights created by statute.
The paying out of public funds to one purportedly rendering service to the municipality is a matter that has led our courts to adopt a strict view of the requirement that an ordinance express with certainty the obligations to be undertaken by the taxpayers. Davaillon v. City of Elizabeth , 121 N.J.L. 380 (Sup. Ct. 1938); Hale v. Town of Kearny , above. However, two distinct policies are confused by plaintiffs' argument, which proceeds from the premise that the
ordinance is subject to attack for failure to comply with the requirements of full notice to the taxpayers, to a conclusion that one who in good faith holds a position presumably created by such an ordinance obtains no civil service reemployment rights.
The policies underlying the Civil Service Act are well known. They seek to establish an enlightened and efficient personnel system in government, assuring the taxpayers of the services of a body of employees advancing on the basis of merit and seniority, and immune from political vicissitudes. See State v. Clark , 15 N.J. 334, 341 (1954); Kaplan, The Law of Civil Service, pp. 1-29 (1958). It is these policies, too, which undoubtedly led the Legislature to decree that one whose job is eliminated for any reason should be placed on a reemployment list, with priority to fill any subsequent vacancy arising in a similar job. N.J.S.A. 11:22-10.1 and 10.2. Although the basis for such a priority right is, of course, the employee's having held a civil service position, the legislative policy as well as one's sense of fair play would be ill-served by depriving one of that right because the ordinance purporting to create the former position was defective in some respect.
Where an employee like Mrs. Spence -- who had been an employee of the municipality prior to the creation of the position here in question -- qualified for the putative position by competitive examination, served in it, and gained valuable experience, sensible personnel practice and justice to the individual demand that she have a prior right to any similar position where her training can be of value to the city. We can see no reason in policy why a municipality's failure to conform to a requirement aimed at taxpayer enlightenment should, in the area of civil service rights, where policy considerations are completely different, have such an unreasonable and drastic effect as plaintiffs contend for.
To determine whether this harsh result must inexorably follow as a matter of law from a conclusion that the 1951 ordinance was legally ineffective to create the position of
administrative secretary, we turn to a consideration of the ancient doctrine of de facto officers. If Mrs. Spence is entitled to claim reemployment rights regardless of the legal effect of the ordinance in question, there is no reason for us to ...