Goldmann, Foley and Barrett. The opinion of the court was delivered by Goldmann, S.j.a.d.
This is an appeal from a decision of the Civil Service Commission placing the position of Superintendent of Public Properties of Scotch Plains, New Jersey, held by appellant Milton, in the classified service of the Civil Service, thereby making it subject to competitive examination. Appellant contends the position is that of department head and should be in the unclassified service, pursuant to N.J.S.A. 11:22-2(d).
On September 1, 1959 the Township of Scotch Plains adopted an ordinance creating a Department of Public Properties "under the ultimate control of the Township Committee, but immediately subject to the orders of the Chairman of the Department of Public Properties." The "executive and responsible officer" of the department was to be the Supervisor of Public Properties, appointed by the township committee for a term of one year. The Supervisor was declared "subject always to the orders of the Department of Public Properties Chairman and to the ultimate control of the Township Committee," and was to have full charge and management of the department and its officers and employees, including the power to "hire, fire, discipline and promote" such employees. Among other powers, the Supervisor, again "subject always to the orders
of the Department of Public Properties Chairman and to the ultimate control of the Township Committee," was to have direct charge and management of the maintenance and repair of all streets, sewers, drainage, shade trees, municipal buildings, parks and bridges, and was to coordinate the work of his department with certain other named township departments. Milton was appointed to the newly created position, and continues in that position to this day.
On August 21, 1959 the Director of Classifications, Municipal Services, in the Department of Civil Service, advised the township that appellant's position would be classified under the title of Public Works Superintendent in the competitive division, classified service. The township formally objected to the classification and requested a conference or hearing. Following the Civil Service Commission's approval of the classification in January 1960 the township requested a formal hearing and advised the Civil Service Department of its contention that the position was, under N.J.S.A. 11:22-2(d), that of a department head and therefore belonged in the unclassified service. A conference with various members of the Department's administrative staff followed, eventuating in a letter on March 24, 1961 notifying the township that the administrative decision of the Department was that appellant's position belonged in the classified service; that the matter would be presented to the Civil Service Commission at its next meeting on April 13, but that there would be no appearance by the township authorities at that time. The Commission approved the administrative action taken. As a result, the township on April 20 notified appellant of the Commission's decision and advised that it had no alternative but to follow it.
This appeal followed, challenging both the action of the Civil Service Commission and that taken by the township. By order dated June 26, 1961 we restrained the Commission from certifying to the township the candidate or candidates successful in the examination until we had heard and determined the merits of the appeal.
When the Civil Service Commission, on April 13, 1961, approved the administrative action taken by the Department's staff, it did so on the basis of the report of the Chief Executive and Secretary reading, in part, as follows:
"* * * (1) It was our view that the proposed Supervisor of Public Properties or Public Works Superintendent was not a department head because of the provision in section 1(A), (B) and (E) of the ordinance adopted September 1, 1959 that the department 'shall be under the ultimate control of the township committee, but immediately subject to the orders of the Chairman of the Department of Public Properties;' (2) It is practicable to determine merit and fitness for this position by competitive examination; (3) in the township form of government we have always considered, for lack of any other provisions in the statute, the township committee membership to be the heads of the various departments which, in effect, places any positions under them out of the unclassified and in the classified[,] and similar positions in other jurisdictions are uniformly placed in the competitive division; and (4) the more responsible position of Chief of Police is also uniformly placed in the competitive division. * * *" (Brackets supplied)
The first of the quoted reasons clearly demonstrates that the Commission relied upon the language of the 1959 ordinance creating the Department of Public Properties and the position of Supervisor of Public Properties, as it then read.
Following the Commission determination, the township committee in May 1961 adopted an ordinance amending the ordinance of August 18, 1959 so that it now reads in pertinent part as follows (the brackets indicate, for convenient ...