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Fitzpatrick v. Civil Service Commission

Decided: June 29, 1966.

THOMAS FITZPATRICK, EDWARD HLUB AND JOHN BOSZE, PLAINTIFFS-APPELLANTS,
v.
CIVIL SERVICE COMMISSION, DEFENDANT-RESPONDENT, AND STANLEY SZYBA, ANDREW PROSS, ANDREW CALVANER, JOHN KAHORA, JOSEPH MUSCO, FRANCIS LARKIN, STEPHEN KUNAK, CLARENCE SHERIDAN AND RALPH WHITE, INTERVENING CODEFENDANTS-RESPONDENTS



Goldmann, Foley and Collester.

Per Curiam

Plaintiffs, three police officers of the Borough of Carteret, appeal from a decision of the Civil Service Commission which upheld the borough's action in promoting ten police officers without calling for a competitive examination. The ten men involved intervened in the proceedings as codefendants.

The material facts are as follows. On December 20, 1956 the outgoing governing body of the borough adopted an ordinance increasing the size of its police force and a resolution promoting 14 police officers to fill the vacancies created. On January 17, 1957 the incoming administration adopted

an ordinance and a resolution which undid the action taken the month before, and effectively demoted the officers to the positions they formerly occupied. The resolution stated that "it is not deemed in the best interest of the Borough of Carteret to continue the promotions of said various personnel of the Police Department to such ranks and grades."

In January 1960 the borough adopted the provisions of the Civil Service Act, and during the summer of 1963 it sought the advice of the Civil Service Department concerning the status of the ten intervenors. (Four of the 14 officers demoted in 1957 were no longer in the department.) The borough was advised that such officers were entitled to reemployment rights, i.e., preferential status, for promotions under R.S. 40:11-10 et seq. As a result the governing body, on January 20, 1964, adopted a resolution promoting the ten men without calling for a competitive examination. Plaintiffs appealed to the Civil Service Commission. Defendants contended that the police officers had been demoted in rank in 1957 for reasons of economy and that their statutory reemployment rights entitled them to be restored to their higher ranks without a competitive examination.

The Civil Service Commission held that since the demotions were not the result of disciplinary action taken against the police officers, and the only stated reason therefor was the best interest of the borough, there was a presumption that the borough acted for reasons of economy which resulted in an annual saving of salaries totaling $4,200. It held that plaintiffs failed to sustain the burden of proof to show that economy was not the compelling reason for the demotions. It concluded that the intervenors acquired reemployment rights under Title 40 (R.S. 40:11-10 and 11) and that such rights were carried over under Title 11 when Civil Service was adopted. It upheld the promotion of the intervenors, to the ranks formerly held by them, without a competitive examination.

Plaintiffs appeal, contending that (1) the proofs do not support the finding that the 1957 demotions were made

for reasons of economy, and (2) reemployment rights acquired under Title 40 are not carried over under Title 11.

Plaintiffs concede that demotions of police officers under Title 40 could be made only on one of two grounds -- economy (R.S. 40:11-10 and 11), or for cause (N.J.S.A. 40:47-6) -- and that the intervenors were not demoted for cause.

R.S. 40:11-10 provides that when the governing body of a municipality shall, for reasons of economy, decrease the grade or rank of members of the police department it shall demote such officers to the next rank below. R.S. 40:11-11 provides that if any officer shall be demoted to a lower rank or grade, such officer shall be carried on a special list, and when promotions are made to a higher rank or grade the persons demoted on the ground of economy shall be the first to be restored to the rank from which they were demoted.

Plaintiffs' claim that the demotions were not made for reasons of economy is based primarily on the fact that the 1957 resolution did not expressly so state, and because the borough that year granted general ...


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