Conford, Freund and Labrecque. The opinion of the court was delivered by Labrecque, J.s.c. (temporarily assigned).
This is an appeal from a summary judgment entered in the Superior Court, Law Division, dismissing the complaint and denying a cross-motion for summary judgment.
Plaintiffs, duly appointed and regularly employed court attendants in the County of Bergen, on behalf of themselves and all such court attendants similarly situated, instituted the present class action in lieu of prerogative writs to test the right of defendant sheriff to assign them and other court attendants, to duty as jail keepers in the Bergen County jail. Defendant asserts, in substance, that the positions of both court attendants and jail keepers are related and that he, as the appointing and supervising authority, has the right to transfer court attendants to the county jail to act as jail keepers when he determines such course necessary. It was conceded that he has at times, in what he deemed cases of emergency, assigned plaintiffs and other court attendants, when their services were not required in any of the courts, to perform duties in the
county jail for temporary periods of not more than ten days to two weeks when regularly employed personnel of the jail were not available for such duties. These assignments generally took place during vacation periods and this practice continued up to the time of the motion for summary judgment.
Plaintiffs moved for summary judgment on the ground that there was no material issue of fact which required determination. Defendant filed a countermotion for dismissal of the complaint on the ground of lack of jurisdiction by reason of the failure of plaintiffs to exhaust their administrative remedies. R.R. 4:88-14. The Law Division denied plaintiffs' motion for summary judgment but granted that of defendant for dismissal. In so doing it held, in substance, that plaintiffs' grievance was the fact that they were being assigned to perform duties other than those properly pertaining to the position which they legally held, in violation of R.S. 11:22-12; that for such violation of the statute a right of appeal to the Civil Service Commission existed, and that, in the absence of an appeal to that tribunal, plaintiffs had no standing to maintain their present action, citing Adams v. Atlantic City , 26 N.J. Misc. 259, 59 A. 2 d 825 (Sup. Ct. 1948); Carls v. Civil Service Commission of N.J. , 17 N.J. 215 (1955), and Ward v. Keenan , 3 N.J. 298 (1949).
The questions presented, therefore, are:
(1) Were plaintiffs required to exhaust their administrative remedies under the Civil Service Act before resorting to the courts?
(2) May a county sheriff assign court attendants appointed pursuant to N.J.S. 2A:11-32 and under Civil Service to perform jail-keeping duties in the county jail?
Both court attendants and jail keepers (since designated as county correction officers) in the County of Bergen are classified civil service employees. The Department of Civil Service has approved separate specifications for each position.
Defendant's claimed right to transfer court attendants
to duty in the county jail is buttressed upon Civil Service Rule 53 which provides for interdepartmental transfers of state and local government employees. The rule further provides that "Any employee who is unwilling to accept a transfer * * * shall have reasonable opportunity to be heard in his own behalf." He contends that an appeal from his action in making the assignments is controlled by R.S. 11:25-1 and must be made to the Civil Service Commission. He urges that ...