For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For affirmance -- None. The opinion of the Court was delivered by Proctor, J.
The issue in this case is whether nonprofessional and noninstructional employees of county community colleges in counties which have adopted Civil Service are subject to the Civil Service Law, N.J.S.A. 11:1-1 et seq.
On September 9, 1970, three years after receiving an opinion from the Attorney General that such employees were covered by Civil Service, the respondent Department of Civil Service issued a ruling to that effect. Following the Department's ruling, petitioners, 12 county colleges, situated in counties which have elected Civil Service for county government pursuant to N.J.S.A. 11:19-2, appealed the Department's ruling to the Appellate Division. We granted certification on our own motion prior to argument below. R. 2:12-2.
Some discussion into the background of the present dispute is necessary to an understanding of the issues involved. By N.J.S.A. 18A:64A-1 et seq., a county board of freeholders is authorized to petition the State Board of Higher Education for permission to establish a county college. Since July 1, 1963, the effective date of that legislation, 15 county colleges have been organized under this statute.*fn1 These colleges
offer educational programs extending not more than two years beyond high school which may include college credit transfer courses, terminal courses in the liberal arts and science, and technical training N.J.S.A. 18A:64A-1(a). Upon completion of the requirements, the student receives a diploma or degree from the college. N.J.S.A. 18A:64A-12(i).
The financial support of these colleges is also provided for by statute. Under N.J.S.A. 18A:64A-22 they receive State aid which cannot exceed one-half, or a maximum of $600 per equated full-time student, for their operating costs. Student tuition and county funds provide the balance of operating revenues in roughly equal shares, the former slightly exceeding the latter on an overall average.
Under the statutory scheme, the board of trustees which consists of the county superintendent of schools and eight persons appointed by the board of freeholders (N.J.S.A. 18A:64A-8) is given extensive power to manage and control the county college. The board of trustees has the power to appoint and fix the compensation and term of office of a president of the college who serves as an ex officio member of the board. N.J.S.A. 18A:64A-12(e). It also has the power to appoint upon nomination of the president members of the administrative and teaching staffs, and the power to fix their compensation and terms of employment.*fn2 N.J.S.A. 18A:64A-12(f). Finally, and critical to the present controversy, is the board's power to deal with nonprofessional and noninstructional employees. N.J.S.A. 18A:64A-12(g) provides:
g. To appoint or employ such other officers, agents and employees as may be required to carry out the provisions of this chapter and to fix and determine their qualifications, duties, compensation, terms of office and all other conditions and terms of employment and retention. (emphasis added)
In ruling that nonprofessional and noninstructional employees of county colleges are subject to Civil Service, the Department based its decision on the opinion of the Attorney General previously referred to. That opinion reasoned that nonprofessional and noninstructional employees came under Civil Service because annual appropriations of tax moneys from a county to its county college (N.J.S.A. 18A:64A-17 and 18), and annual support provided by the State to such colleges (N.J.S.A. 18A:64A-22) placed such employees in the paid service of the county. Consequently, these employees were subject to Civil Service if they were employed by colleges in counties which had adopted Civil Service.*fn3 For the reasons to follow, we hold that nonprofessional and noninstructional employees of county colleges are not subject to Civil Service.
N.J. Const., Art. VII, § 1, par. 2, provides in pertinent part:
Appointments and promotions in the civil service of the State, and of such political subdivisions as may be provided by law, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as ...