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Ward v. City of Camden

Decided: March 19, 1965.

URQUHART WARD AND NEW JERSEY CIVIL SERVICE COMMISSION, PETITIONER-RESPONDENTS,
v.
THE CITY OF CAMDEN, RESPONDENT-APPELLANT



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

Kilkenny

This is an appeal by the City of Camden from a final decision of the New Jersey Civil Service Commission, reinstating Urquhart Ward in his position as senior plumbing inspector of the city, with full back pay, and holding "illegal" section 12.9 of the Camden Administrative Code, which requires each appointive officer and employee of the city to retire "upon attaining seventy years of age."

Ward was appointed senior plumbing inspector in May 1948 and continued in that position until his services were terminated by written notice effective July 25, 1963, given pursuant to section 12.9 of the Administrative Code. Ward's dismissal was based solely on the fact of his age and the code provision. The city makes no claim that Ward has any physical or mental disability that would interfere with the performance of his duties. So far as the record shows, the services rendered by Ward as senior plumbing inspector have always been satisfactory.

Camden is subject to the provisions of the Civil Service Act, N.J.S.A. 11:1-1 et seq., and Ward had tenure rights thereunder. His appointment was not for a fixed term. The city contends it is operating under the Faulkner Act, N.J.S.A. 40:69A-1 et seq., and by virtue of N.J.S.A. 40:69A-29 has the authority to require retirement of its employees at age 70, regardless of any tenure rights enjoyed by them under the Civil Service Act. Stated otherwise, the city argues that the Civil Service Act does not pre-empt the field of removal of employees by municipalities, and that the jurisdiction of the Civil Service Commission is restricted to cases of removal "for

cause." The city concedes that age is not per se a valid cause for removal of a civil service employee under the Civil Service Act. The city maintains further that mandatory retirement of a public employee at age 70 is not unreasonable, arbitrary or capricious.

Ward was not subject to any contributory pension fund law under which his retirement might have been effected. However, at the discretion of the city, he could have been retired and granted a noncontributory pension under N.J.S.A. 43:8B-1 et seq. Ward was eligible under that statute because he was "at least 65 years of age," N.J.S.A. 43:8B-4, and had "at least 15 years of employment continuously" with the city, N.J.S.A. 43:8B-5. The city chose not to retire Ward under this act and had no intention of giving him any pension thereunder. This was confirmed by the city at oral argument.

We are not here concerned with the wisdom of mandatory retirement at age 70. Much can be said in favor of and in opposition to such a policy. See 279 Annals of the American Academy of Political and Social Science 72 (1952). The single issue which requires our attention is whether our Legislature has delegated to the city the power to impose a mandatory age retirement upon its senior plumbing inspector who has enjoyed tenure protection under the Civil Service Act. The city admits that no such authority exists under that law. Superannuation is not per se a valid cause for the removal of an employee under the Civil Service Act. The city also concedes that Ward's retirement was not effected under any retirement pension plan statute.

The sole claim of statutory authority asserted by the city for establishing the policy of mandatory retirement at age 70 is N.J.S.A. 40:69A-29(a). This section of the Faulkner Act gives to municipalities operating under its provisions full power to

"organize and regulate its internal affairs, and to establish alter, and abolish offices, positions and employments and to define the functions, powers and duties thereof and fix their term, tenure and compensation; * * *."

True, this section does give a municipality full power to fix the "tenure" of its employees, but the same statute expressly makes that power "subject to the provisions of this act or other general laws." As defined in N.J.S.A. 40:69A-28, a "general law" is any law or provision of law "which is by its terms applicable or available to all municipalities." The Civil Service Act is such a general law. Therefore, the power of a municipality, operating under the Faulkner Act, to fix the "tenure" of its employees is subject to the tenure rights of employees under the Civil Service Act.

The city argues that "if there exists a direct and expressed conflict between the Civil Service Act and the Faulkner Act, the latter will control." In support of that proposition, it cites City of Newark v. Department of Civil Service, 68 N.J. Super. 416 (App. Div. 1961), and Raphalides v. Civil Service, 80 N.J. Super. 407 (App. Div. 1963). In these cases we considered whether N.J.S.A. 40:69A-166, a section of the Faulkner Act, was in conflict with the Civil Service Act. That section provided that any person convicted of a crime involving moral turpitude would be ineligible to hold a municipal office or position in a municipality governed by the Faulkner Act, and that conviction of such an offense while in office would cause a forfeiture of such office. We held that this definite provision in the Faulkner Act, covering particular subject matter, would prevail over a general tenure provision in the Civil Service Act. N.J.S.A. 40:69A-166 was not so much in conflict with Title 11, " Civil Service," as it was supplementary thereof, in that it added ...


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