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Flynn v. Megaro

Decided: November 10, 1970.

MICHAEL J. FLYNN, JOHN B. MULVANEY, FRANCIS J. GILROY, ERNEST ZOPPI, EMMA R. GILROY, LOUIS STROMP AND WILLIAM GIST, PETITIONERS-APPELLANTS,
v.
LEWIS D. MEGARO, MOVANT-INTERVENOR, V. CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



Goldmann, Leonard and Mountain. The opinion of the court was delivered by Goldmann, P.J.A.D.

Goldmann

[112 NJSuper Page 149] Initially, plaintiffs appealed to this court from the denial of the relief they requested of

the Civil Service Commission by a petition dated May 10, 1968, that the Commission refrain from promulgating an eligible list of court clerks based on examination C1530 and that the county clerk replace temporary court clerks with those on the C88OX list, which lists are explained hereafter. The Commission's determination to use list C880X to make immediate appointments and fill current vacancies has resulted in a changed situation which requires a somewhat extended explanation.

On August 7, 1967 the Civil Service Commission announced an examination for the position of Essex County court clerk (knowledge of typing), No. C880X. Petitioners took the examination and a certified list of eligibles was subsequently released, the list to expire January 19, 1970. The county clerk had specifically requested that a knowledge of typing be one of the qualifications for the examination.

On January 11, 1968 the Commission announced that there would be an examination for Essex County court clerk, No. 1530, without the typing requirement that the county clerk, as appointing authority, had requested but which the Commission refused to adopt.

On February 23, 1968 petitioners instituted a proceeding in lieu of prerogative writs in the Law Division (Docket L-20929-67P.W.) alleging violation of N.J.S.A. 11:22-32, which reads, in pertinent part:

The complaint sought to enjoin examination C1530 and to replace all temporary clerks with qualified persons from the C880X "knowledge of typing" list. On learning that the C1530 examination was to be held on April 19, 1968, petitioners by motion sought to have the Law Division enjoin the holding of the examination pending the suit. Defendant Civil Service Commission filed a cross-motion to

dismiss the complaint, which motion was granted for failure to exhaust administrative remedies and for lack of subject matter jurisdiction.

The C1530 examination was held as scheduled. Then followed the May 10, 1968 petition referred to in our opening paragraph, requesting the Commission to appoint from the C880X list and that an eligible list based on the April 19 examination not be certified. Despite petitioners' requests for an early hearing, the Commission on June 13, 1968 notified those who had participated in the April 19 examination that an eligible list based thereon had been certified -- an action which petitioners deemed to be a denial of the relief they had requested and which resulted in their filing a notice of appeal with this court. They also immediately moved to have us enjoin the Commission from proceeding with appointments to the position of court clerk from the C1530 list, pending disposition of the appeal. They also moved for permission to present evidence before the Commission. We granted both motions.

On July 11, 1968 the Chief Examiner and Secretary of the Commission informed petitioners' attorney that the Commission, after careful consideration of all the pertinent facts, had concluded that the C880X list was the most appropriate in the circumstances and that the Department of Civil Service was prepared to declare it so and to certify from the list. However, no certifications could be made until the pending appeal was determined or withdrawn. Shortly after this Lewis D. Megaro, who had successfully taken the C1530 examination, filed a motion to intervene and seeking an ad interim stay and leave to present additional evidence. We granted the motion.

Civil Service Commissioner Ballan held hearings pursuant to our orders and on March 4, 1970 handed down his determination, electing to make findings of fact and conclusions of law in order to avoid further delays, and this despite some disagreement on the part of counsel ...


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