Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
Capibianco appeals from a determination of the Civil Service Commission holding that (1) he never acquired permanent status after his assignment to duty in a temporary capacity as Chief of Police of the Asbury Park Police Department, and (2) since a vacancy existed in that position, the Civil Service Department properly took action to fill the position permanently by holding a competitive promotional examination and certifying a list of eligibles for appointment.
Capibianco joined the Asbury Park police force in 1930. The city adopted civil service in 1940. In 1945 Capibianco took competitive examinations for promotion to the positions of captain, deputy chief and chief of police. Having passed the examinations, he was placed on the list of eligibles for the respective positions and thereafter was permanently appointed to the position of captain. On September 10, 1955 he was appointed deputy chief by the City Manager of Asbury Park, who was the appointing authority under R.S. 40:82-4(d), 40:82-5. Swede v. Clifton , 22 N.J. 303, 308 (1956), affirming 39 N.J. Super. 366 (App. Div. 1956). The 1945 list of eligibles had by that time expired (R.S. 11:9-10; Civil Service Rule 39), so that Capibianco could not be appointed permanently to the position of deputy chief without taking a new competitive examination or without the Civil Service Commission approving such promotion under Civil Service Rule 24. That rule provides, in part, that "When there are not more than three persons eligible to take the promotion test or not more than three of those who are eligible file application to take such test and the preference rights of veterans will not be affected the president [of the Commission] may, in his discretion, authorize such promotion without competitive test." Since the Civil Service Department had no list of eligibles available for certification to the position of deputy chief, and Capibianco was the only police captain serving at that time, the Civil Service Department treated the attempted promotion
of Capibianco to deputy chief as a request for promotion under Rule 24. The Civil Service Commission thereupon approved the promotion, the permanent appointment to be effective as of November 17, 1955. The letter of approval sent to the city manager stated that the period from the effective date he had requested, September 10, 1955, to that fixed by the Commission, November 17, 1955, "shall be under temporary status."
This history of Capibianco's appointment as deputy chief is relevant by way of comparison with his present claim to appointment as chief of police and the procedures later followed in this regard.
Appellant has held the position of deputy chief since November 17, 1955. The Civil Service Commission records reflect no change from this permanent appointment.
On July 30, 1957 the city manager appointed Capibianco "Acting Chief" of the Asbury Park Police Department, "due to the temporary absence of Chief Fred Lembke." Chief Lembke, who had been on sick leave since July 30, 1957, permanently retired on January 1, 1958. Shortly thereafter, on January 14, 1958, the Mayor and Council of Asbury Park, by a 3-2 vote, recommended that the city manager permanently appoint Capibianco chief of police. He did not act on the recommendation.
The governing body thereafter approved an increase in Capibianco's salary. On June 25, 1958 the city manager wrote appellant as follows:
"Kindly be advised that the Mayor and Council have approved an increase to Chief's salary to be paid to you, although you are Acting Chief. This will be retroactive to the date of your appointment to Acting Chief , July 30, 1957." (Italics ours)
The salary change was "recorded" by the Civil Service Department, but Capibianco continued on its records as "Deputy Chief."
On or about November 15, 1958 the city manager requested the Civil Service Commission to hold an examination
for chief of police among eligible applicants in order to establish a list from which he could make a permanent appointment. The Commission scheduled such an examination for January 9, 1959, open to police officers with the ranks of deputy chief and captain. There were two deputy chiefs eligible to take the examination (plaintiff being one) and three captains. The deputy chiefs declined to take the examination, which was held as scheduled. The three captains took the test, a list of eligibles was thereafter certified, and on March 11, 1959 the city manager appointed one of them chief of police.
In the meantime, and after the examination had been announced, Capibianco's attorney wrote the Commission, protesting the scheduling and holding of the examination as a violation of N.J.S.A. 11:22-38 and characterizing the city manager's request that an examination be held as, in effect, "a demotion or reduction in rank," and therefore contrary to law. In this and a subsequent letter the attorney called for an investigation by the Civil Service Department before any examination was scheduled. The Commission considered the protest at its meeting of December 16, 1958. The result was a request that Capibianco's attorney submit ...