In this class action brought on behalf of approximately 476 nonresident employees of the City of Newark plaintiffs ask declaratory and injunctive relief relative to a local ordinance requiring that all officers and employees of the defendant city be bona fide residents therein. The action is grounded in claims of unconstitutionality under the Equal Protection Clause of the 14th Amendment to the United States Constitution and in equitable considerations arising from the city's long-standing policy of indifferent enforcement.
The ordinance is R.O. 2:14-1. It provides:
All officers and employees of the city now in the employ of or hereafter to be employed by the city are hereby required as a condition of their continued employment to have their place of abode in the city and to be bona fide residents therein except as otherwise provided by the charter. A bona fide resident, for the purpose of this section, is a person having a permanent domicile within the city and one which has not been adopted with the intention of again taking up or claiming a previous residence acquired outside of the city limits.
The director of any department or the mayor or city clerk is hereby authorized in his discretion, for good cause shown, to permit any officer or employee of the city in his respective department or office to remain in the employ of the city without complying with the provisions hereof, where:
(a) The health of any officer or employee necessitated residence outside of the city limits;
(b) The nature of the employment is such as to require residence outside of the city limits;
(c) Special circumstances exist justifying residence outside of the city limits.
Failure of any officer or employee to comply with this section shall be cause for his removal or discharge from the city service.
Included among the questions assigned for constitutional treatment is whether the ordinance can be "uniformly applied"
where policemen, firemen and other municipal officials are exempted from its application under N.J.S.A. 40A:14-122.1 and 9.1, and N.J.S.A. 40A:9-1. This is the issue specifically reserved for future consideration in Abrahams v. Civil Service Comm'n , 65 N.J. 61, 64, fn. 1 (1974), and particularly the concurring opinion of Clifford, J. at 76. The chief features of the Abrahams case were its holdings that (1) the ordinance did not form an unconstitutional restraint upon the right to travel; (2) the "special circumstances" exception contained in the ordinance was void for want of adequate standards, and (3) plaintiff employee had not sufficiently demonstrated the city's discriminatorily selective enforcement of the ordinance against her.
In urging their right to relief, in addition to the question left open by Abrahams , plaintiffs also rely upon (1) the city's refusal to apply the ordinance to employees of its municipal agencies; (2) its refusal to apply it to the officials mentioned in N.J.S.A. 40A:9-1; (3) its widespread use of independent contractors whose employees are not subject to the residency requirement, and (4) its long and continuing history of hiring and retaining nonresident employees in violation of its own ordinance.
Although some variation in the pertinent statistics will be found, depending upon the sources and interpretation of information utilized, for practical purposes they are correct, subject only to minor adjustments.
Excluding employees of the autonomous agencies such as the Parking and Housing Authorities, Library, Museum and Board of Education, the City of Newark is served by 10,677 employees, of whom 1,884 are nonresidents. Of the latter number 1,408, or 75%, are exempted from the residency requirement by reason of the police and firemen's statutory exemption and under the city's interpretation of N.J.S.A. 40A:9-1. Out of a total complement of 1935 police department employees 673, of whom 99% are exempt, are nonresident. Out of 1,125 fire department employees 703, of whom 99% are exempt, are also nonresidents. Out of a
total of 27 Law Department employees 13 are nonresidents, and of these 92% are exempt under the city's reading of N.J.S.A. 40A:9-1.
At the other end of the scale, in the Recreation Department, out of 248 employees 14 are nonresidents, none of whom is exempt from the residency requirement. The same proportion is true of the departments administered under the grant programs, in which 4,844 persons are employed. The Health and Welfare Department has 479 employees, 115 of whom are nonresidents, and less than 1% of these are exempt.
Of the total nonresident employees, including those hired by the present and past administrations, 355 personnel files were studied. There were evidently an additional 106 in existence, but at the time of the examination they were "unavailable." Of those studied 209, approximately 59%, contained unmistakable written evidence of the employee's nonresidence either at the time of hiring or as the result of a change of address after hiring. Although the remaining files showed no such evidence, it should be remembered that the fact of missing documents was recurrently encountered during the case.
The total number of exempt police and fire personnel number 2,683, representing approximately 25% of all city employees. Against the following numbers of employees of the specified agencies the city also withholds enforcement measures:
Board of Education 10,587
That the present and past city administrations have at all times been fully aware that the ordinance was being regularly violated has been established with certainty. Since taking office in 1970, 67% of the 64 nonresident appointments
which the present administration alone has made involved nonexempt appointees who were nonresident at the time of appointment. This was shown by Civil Service forms and other papers placed in the file at the time of hiring. 11% later became nonresidents. This, too, was shown by papers in their files. Although the remaining 22% of these files contain no written evidence of ...