Antell, J.s.c. (temporarily assigned).
[114 NJSuper Page 578] The narrow question presented by this class action in lieu of prerogative writs and for declaratory relief is whether the appointing authority of a municipal government may, without a commensurate increase in compensation, enlarge the work week of a selected group of municipal employees who are members of the classified civil service. The class for whose benefit this action is brought number approximately 500 to 600 employees who have served the City of Newark in various capacities at 30 hours a week for lengths of time ranging up to 23 years. That the 30-hour work week has always been a basic condition of employment appears from personnel forms on file with the city since the inception of the employments. This group is evidently a minority among city employees in
this respect, since the work week prevailing for others is 35 hours.
By notice letter dated January 19, 1971, received by all the affected employees, defendant Kenneth A. Gibson, mayor of the City of Newark, directed that commencing February 1, 1971 they would be required to work an additional five hours a week. Noting that the city is faced with a deteriorated financial situation, the letter expressed the administration's view that "in this critical time a 30 hour week is a luxury we can no longer afford." The document is silent as to whether plaintiffs may expect any added salary or other benefits to compensate them for the forfeiture of this "luxury," and defendants' counsel frankly acknowledges that such an expectation would not be warranted.
Defendant city is and has been at all times material hereto subject to the provisions of the New Jersey Civil Service Law as from time to time amended over the years.
N.J.S.A. 11:22-6, 11.1 and 38 provide for tenure in office, and they safeguard plaintiffs from removals and reductions except in the manner provided by law. Plaintiffs maintain that the aggregate effect of these enactments is to disallow an increase in working hours without added pay since this is a "reduction" in disregard of tenure and in violation of statutory provisions regulating the manner by which this may be accomplished. Defendants deny that their action is a "reduction" within the meaning of section 38, supra , of the Civil Service Act. They argue that extending the work week is properly within their competence with or without good cause; that this was done in reasonable, nondiscriminatory fashion, and that action of this kind addressed to the working conditions of so large a group of employees, may be relieved against only by negotiation and not in the manner here employed. Defendants further urge that the relief sought should be denied by reason of plaintiffs' failure to exhaust administrative remedies.
Defendants specifically disaffirm their reliance upon any claim of economic emergency in justification of the measure
taken, and no evidence of the city's financial straits was offered. Cf. Henninger v. Bergen County , 130 N.J.L. 191 (Sup. Ct. 1943).
Notwithstanding plaintiffs' failure to pursue administrative remedies within the Civil Service establishment, the court will accept the controversy. The question is of public interest, involving as it does so numerous a class of public employees. The only question presented is one of law; there are no factual disputes, nor is there any necessity for the application of agency expertise, policy, discretion or judgment. To require exhaustion of administrative remedies would result only in useless delay which would be detrimental to the public interest. E.g., Waldor v. Untermann , 10 N.J. Super. 188, 191-192 (App. Div. 1950); Loboda v. Clark Tp. , 74 N.J. Super. 159, 166 (Law Div. 1962), aff'd 40 N.J. 424 (1963); Roadway Express, Inc. v. Kingsley , 37 N.J. 136, 141 (1962). The rule requiring exhaustion of administrative remedies is neither jurisdictional nor absolute. Matawan v. Monmouth County Tax Bd. , 51 N.J. 291, 296 (1968). Also favoring judicial intervention at this stage were the considerations which led the court to grant plaintiffs ad interim relief, a remedy which could probably not have been provided by the administrative agency. R. 4:69-3.
Whether the city's five-hour extension of the work week is a "reduction" without compliance with N.J.S.A. 11:22-38 must be judged in light of underlying policy considerations intended to be promoted by the Civil Service Law. Statutes should be so construed as to suppress the mischief and advance the remedy. Newark v. Fischer , 8 N.J. 191, 200 (1951).
The Civil Service Act is a tenure of office law. Devlin v. Cooper , 124 N.J.L. 155, 158 (Sup. Ct. 1940), aff'd 125 N.J.L. 414 (E. & A. 1940). It is the purpose of civil service legislation to put positions in the classified service beyond political control and the exercise of partisanship and personal favoritism. Its underlying ...