Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.
The Town of Irvington appeals from the determination and order of the Civil Service Commission setting aside the action of the municipality in removing respondent Huhn from his position as Confidential Secretary and Clerk to the Director, Department of Public Works, and restoring him to his duties effective September 1, 1962, with back pay. The Commission held that the municipality had failed to comply with N.J.S.A. 11:26D-1 because (1) the letter notifying Huhn of the abolition of his position and his separation from service was sent by ordinary mail instead of having been served personally or by certified mail; (2) the notice was not served on the Civil Service Commission personally or by certified mail at least 45 days before the abolition became effective; and (3) the notice did not state the reasons for the abolition and separation from service.
Irvington was governed by a commission form of government prior to July 1, 1962. Huhn was appointed Confidential Secretary and Clerk to the then Director of the Department of Parks and Public Property on July 6, 1942, as evidenced by the letter of appointment from the Director to the Civil Service Commission. On July 18, 1942 the Commission approved the appointment in the exempt division of the classified service. See R.S. 11:22-26, since repealed by L. 1948, c. 121, § 11. However, Huhn's position continued in the exempt division of the classified service by virtue of N.J.S.A. 11:22-4.
Although the municipality challenged the validity of Huhn's appointment at the hearing before the Commission, it has expressly abandoned that contention here, both in its brief and on oral argument. It could hardly do otherwise. Like the Commission, we find that Huhn held his position by virtue of Ordinance No. 1634, adopted by the local governing body on August 28, 1945, as amended from time to time. Any question as to the validity of his appointment or tenure under Civil Service is adequately answered by the validating provisions of L. 1951, c. 279, § 1 (N.J.S.A. 11:21-4.1).
It is elementary that a position created by ordinance can only be abolished by ordinance. Padavano v. North Bergen Twp. , 13 N.J. Super. 6, 10 (App. Div. 1951). Counsel for Irvington points to no ordinance abolishing Huhn's position, except for the so-called Administrative Code of the Town of Irvington, adopted in July 1962 and mentioned below.
On May 21, 1958 Huhn was transferred under his same title, Confidential Secretary and Clerk to the Director, to the Department of Public Works. The transfer was approved by the Department of Civil Service on June 24 following.
On July 1, 1962 Irvington changed its form of government from the commission form to the so-called Mayor-Council Plan "D" under the Faulkner Act, N.J.S.A. 40:69A-1 et seq. On July 16, 1962 Huhn received a notification letter from Mayor Lovell, dated June 12, 1962 (it is agreed that this was a mis-type and the date was July 12, 1962) and post-marked July 15, advising him that his position as Confidential Secretary and Clerk to the Director "has been abolished" and his services would be concluded as of September 1, 1962. Thereafter, Huhn's present counsel wrote the mayor on July 31 calling attention to the fact that no reason for abolishing the position had been given, that the Civil Service Commission had not been advised of the abolition of the position and the termination of Huhn's services, that the letter of notification was legally ineffective to remove Huhn, and that Huhn, being classified in the exempt class of the Civil Service, was entitled to a hearing before the Commission. A copy of the letter was sent to the Commission.
The Commission did not receive a copy of Mayor Lovell's July 12 letter to Huhn until August 1, 1962. On August 15 the Department of Civil Service wrote Mayor Lovell, copy to Huhn, informing him that the "lay-off" of Huhn had been recorded and his name placed on the exempt reemployment list for the position of Confidential Secretary and Clerk to the Director, effective September 1, 1962.
It is undisputed that the July 12, 1962 letter which the mayor sent Huhn did not comply with the controlling statute, N.J.S.A. 11:26D-1, in the three respects noted in the Commission's determination. It remains to be determined what effect may properly be given to these irregularities.
We recently considered N.J.S.A. 11:26D-1 in Amodio v. Civil Service Commission , 81 N.J. Super. 22 (1963). The issue there was whether under the statute the 45-day notice period commenced as of the date of mailing or as of the date of receipt of notice. We held that the period started running from the date written notice was sent by certified mail. However, we went on to say that the lay-off there involved would not be considered invalid even if the employee received only 43 days' notice, where he had been given 45 days' pay and suffered no prejudice from the loss of an additional two days' notice. The statute, we said, must be given a practical and reasonable construction.
The rationale of Amodio is equally applicable to this appeal. Huhn admits he actually received the notice 45 days before the date set for the termination of his services. Having received actual notice, he cannot argue that he was prejudiced because the letter was not sent by certified mail. Cf. Griggs v. Princeton Borough , 33 N.J. 207, 225 (1960); Stahl v. Paterson Board of Finance , 62 N.J. Super. 562, 588 (Law Div. 1960). Huhn had sufficient ...