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Ogden v. Department of Civil Service

Decided: December 7, 1962.

JOHN B. OGDEN, NEW JERSEY CIVIL SERVICE ASSOCIATION AND PASSAIC COUNCIL NUMBER THREE, NEW JERSEY CIVIL SERVICE ASSOCIATION, PLAINTIFFS-APPELLANTS,
v.
DEPARTMENT OF CIVIL SERVICE OF THE STATE OF NEW JERSEY AND PASSAIC VALLEY WATER COMMISSION, DEFENDANTS-RESPONDENTS



Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

John B. Ogden, New Jersey Civil Service Association and Passaic Council Number Three, New Jersey Civil Service Association, appeal from the final decision of the Department of Civil Service, reclassifying the position of General Superintendent and Chief Engineer of the Passaic Valley Water Commission from the classified into the unclassified division. Mr. Ogden is the Assistant General Superintendent.

The Passaic Valley Water Commission was organized pursuant to R.S. 40:62-109 to 40:62-150 by the cities of Clifton, Passaic and Paterson. It has been in existence at least since 1933. It supplies water not only in the three cities which organized it, but also in a number of nearby municipalities. The Commission owns a 37 3/4% interest in the North Jersey Water Supply District which operates the Wanaque Reservoir. To meet increasing needs its works and distribution system have been expanding. It is presently developing a reservoir at Pancake Hollow. The North Jersey

Water Supply District is considering whether to bring water from the Round Valley Project to be picked up at Round Valley or from the Raritan River.

The Passaic Valley Water Commission is a board of four commissioners, of whom two are appointed by the city of Paterson and one each by the cities of Clifton and Passaic. The commissioners are not required to have technical training in water distribution and the present commissioners have none. No commissioner is an engineer. They do not serve full time as water commissioners and each has another responsible private position. While the Commission is the governing body, its role is essentially dependent upon expert guidance and advice, particularly that of the General Superintendent and Chief Engineer, both in matters of administration and engineering. The Water Commission has 284 employees, and in the organization chart the General Superintendent and Chief Engineer is the head of the Operating Division, which includes all but five of the employees.

For many years, the employees of this Water Commission were not subject to Civil Service. Then, L. 1949, c. 289 (N.J.S.A. 40:62-150.1 and 150.2) was adopted. It provided that the Water Commission "shall, upon written petition * * * signed by a majority of the employees of said water commission employed by it on the effective date of this act, certify to the Civil Service Commission the names of all those employees," and upon such certification "the Civil Service Commission shall classify, without examination, the employees so certified in the classified service and such employees shall thereafter be subject to all the provisions" of the Civil Service Law with respect to tenure, classification and compensation. Such a petition was filed by the employees and the Water Commission so certified to the Civil Service Commission on July 23, 1949. From that date the employees of this Water Commission have received the benefits of and been subject to the provisions of the Civil Service Law.

Richard E. Bonyun had been employed as General Superintendent and Chief Engineer of the Water Commission since

November 1, 1944, and he continued therein until his retirement effective January 1, 1962. Thus, he had tenure following the acceptance of Civil Service and the position had been placed in the classified service by the Civil Service Commission. The employees were classified under approximately 80 Civil Service titles.

Mr. Bonyun indicated to the Water Commission in the early part of 1961 that he intended to retire. In May 1961 he became quite ill, was hospitalized and underwent an operation. He gave notice that he would retire on January 1, 1962. The Water Commission regarded this job as important, complex in nature, unique, and one which could not be filled by examination. It began to look around for a successor. The Commissioners interviewed eight or more engineers recommended to them by the executive director of the American Water Works Association. They felt that the qualifications needed for their General Superintendent and Chief Engineer were possessed by Mr. Charles Bourgin, who had been recommended by the American Water Works Association and who was performing a somewhat comparable job for the East Orange Water Commission.

On July 21, 1961 the Water Commission addressed a communication to the Civil Service Commission requesting that the position of General Superintendent and Chief Engineer be placed in the unclassified service because the present incumbent was retiring, his replacement was needed immediately, and the position was the top executive and policy settling authority of the Water Commission and could not be filled by examination. The Civil Service Commission considered this request at its October 3, 1961 meeting and ...


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