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Lavitz v. Civil Service Commission

Decided: March 16, 1967.

JACOB LAVITZ, APPELLANT,
v.
CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY, RESPONDENT



Conford, Foley and Leonard. The opinion of the court was delivered by Leonard, J.A.D.

Leonard

Appellant appeals from the action of the Civil Service Commission (Commission) in denying him a hearing.

As a result of an examination given by the Commission, appellant was notified on November 17, 1965 that he had been placed first on the eligible list for the position of Director of Welfare, Monmouth County (Director). Although his actual examination rating was lower than that of Robert C. Wells, another examinee, appellant was placed first because he was a disabled veteran and Wells was placed second. One William B. Watson was placed third.

Although the above list of three was promulgated on November 26, 1965, it was not certified to the Monmouth County Welfare Board (Board) until November 30. Wells was then serving as a temporary appointee in the position of

Director, and continues so to serve at the present time. On December 1, 1965 appellant notified the Board that he was interested in the permanent position. On December 14, 1965 Watson, whose name was third on the list, indicated he was not interested in the permanent position and his name was struck from the list. On January 19, 1966 appellant, pursuant to a previous request, appeared before the Board for the purpose of an interview.

On February 15, 1966 the Board at a regular meeting passed two resolutions. The first rejected the certification of the list of eligibles for the position of Director "because it is incomplete." The second continued Wells as Director "pending further action by the Department of Civil Service * * *." Appellant and the Commission were promptly notified of this action. Thereafter appellant indicated that he was interested in the temporary appointment. However, on March 11, 1966 the Commission "recorded" the continued temporary appointment of Wells pending examination.

On May 12, 1966 appellant filed a petition with the Commission alleging that the action of the Board and the approval thereof by the Commission "subverts the intent and purpose of the establishment of a Civil Service System * * *" and requested a hearing upon his rights to the permanent or temporary position of Director. Thereafter the Commission concluded that the Board "was legally justified" in acting as it did, and since "there were no factual matters involved," it found "no basis for a hearing."

Appellant first argues that upon certification of the list containing three eligible names he became entitled to appointment by virtue of his veteran's status. He further contends that the fact that thereafter the person who was third on the list (Watson) was removed therefrom because of lack of interest in the position is no basis for refusing to appoint appellant.

A disabled veteran who passes a competitive examination must be placed at the top of the employment list. N.J.S.A. 11:27-3. When the list is certified to the appointing

authority, it has no freedom of choice among the eligibles; it must appoint the veteran. N.J.S.A. 11:27-4; Vanderwart v. Department of Civil Service, 19 N.J. 341, 349 (1955). Under Civil Service Rule 44, when the appointing authority is vested in a board or commission, the appointment must be made at the meeting next following the receipt of the certification. Here that meeting took place on December 22, 1965. However, by that date Watson's name had been removed from the certified list and there remained only two persons thereon.

Until the Board chose to make a permanent appointment from the original list of three, appellant had nothing more than an inchoate right for preferential consideration by reason of his veteran's status. He had no vested right to the position, and the fact that he was a veteran could not create such a right. The only benefit inuring to one who successfully passes an examination and is placed on an eligible list is that so long as that list remains in force, no appointment can be made except from that list. Schroder v. Kiss, 74 N.J. Super. 229, 240 (App. Div. 1962). Here the board did not make the appointment immediately upon ...


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