Lynch, Ackerman and Larner.
By this action in lieu of prerogative writs plaintiffs challenge the right of defendant City of Paterson (city) to hire and assign to active duty in its Fire Department persons who have not qualified under the Civil Service Act but who were hired under Title II of the federal Comprehensive Employment and Training Act of 1973 (CETA), 29 U.S.C.A. § 801 et seq.*fn1 Plaintiffs also challenge a directive of the New Jersey Civil Service Commission (Commission) which authorizes such hiring by the city.
The trial judge dismissed the complaint on the ground that plaintiffs had not exhausted their administrative remedies under the Civil Service Act. Plaintiffs appeal.
The issue presented here is strictly one of law and, pursuant to N.J.S.A. 11:25-4, is cognizable by the Superior
Court in a proceeding in lieu of prerogative writs. Swede v. Clifton , 22 N.J. 303 (1956). Therefore, the trial judge was in error when he dismissed the complaint for failure to exhaust administrative remedies. We consider the matter on the merits. R. 2:10-5.
CETA creates a number of manpower training projects in the public employment area. The object of the act is to aid the chronically unemployed during the current economic crisis by supplying them with jobs, and at the same time training them in useful skills which can lead to permanent employment in the public or private sectors. 29 U.S.C.A. § 841. Title II of CETA provides federal funding for employment and training programs sponsored by localities with high unemployment rates.
During the year from June 1, 1974 to June 30, 1975 Paterson had an unemployment rate of 12%, and qualified as a "prime sponsor" within the meaning of CETA. 29 U.S.C.A. § 812. On October 5, 1974 five men hired with CETA funds and not on the Civil Service list, were assigned to duty with the Fire Department. This precipitated the instant suit.
On October 30, 1974 William Druz, Chief Examiner and Secretary of the New Jersey Civil Service Commission, in an affidavit filed in this case, stated that he had instructed municipalities that they could legally make appointments under CETA so long as the appointees were "identified" to the Department of Civil Service. After the dismissal of the complaint below, the Commission, on November 12, 1974, issued a statement of "interim policy" to the effect that jurisdictions operating under the Civil Service Act "may continue to make appointments under the CETA-II Program."
In essence, plaintiffs contend that since Paterson has adopted the Civil Service Act, it may not hire as firemen persons not on the Civil Service list, and therefore the hirings under CETA violate N.J. Const. (1947), Art. VII, § I, para. 2, and N.J.S.A. 11:21-3. They further contend that
the approval of such hiring is beyond the power of the Commission.
N.J.S.A. 11:21-3 provides that appointments to the "civil service" of a municipality which has adopted Civil Service shall be made only according to merit and fitness. And N.J.S.A. 11:22-3 provides that the classified service (which comprehends firemen) ...