For reversal and remandment -- Chief Justice Hughes, Justice Mountain, Pashman and Schreiber and Judge Conford. For affirmance -- Justices Sullivan and Clifford. The opinion of the Court was delivered by Schreiber, J. Justice Sullivan and Justice Clifford dissent.
Joseph Cunningham and Wallace J. Schonwald each held the Civil Service classified position of Director of Design (sometimes hereinafter referred to as DOD) in the Department of Transportation (DOT). Both were demoted to the status of Regional Highway Engineer when the position was eliminated in a reorganization of the Department in June 1971. They unsuccessfully contested the elimination of their jobs on the ground of bad faith. The challenge, which they carried through the Department of Civil Service and the Appellate Division of the Superior Court, terminated with a denial of their petition for certification to this Court. 67 N.J. 87 (1975).
When DOT renamed the position of Director of Administration as Director of Employee and Management Services (sometimes hereinafter referred to as DEMS) and placed it in the classified service, Cunningham and Schonwald asserted in a letter to the Commissioner of Transportation that they were entitled to a preemptive right to that position because its duties were comparable to those of the then non-existent DOD. Their claims were grounded on two statutory provisions, N.J.S.A. 11:15-9 and 10.
N.J.S.A. 11:15-9 provides that
When an employee of the State holding an office or position in the classified service * * * whose position or office has been * * * abolished, such employee shall, whenever possible, be demoted to some lesser office or position, in the same department * * *; and his name shall be placed upon a special re-employment list, which list shall take precedence over all other civil service lists.
N.J.S.A. 11:15-10 states that
Such person shall be entitled to reinstatement at any time thereafter in the same or any comparable office or position of the same nature as that from which he was separated as soon as the opportunity
arises. When an office or position of a character the same or comparable to that previously held by such person is to be filled, his name shall be certified from the special re-employment list for appointment. [Emphasis supplied].
The Commissioner of Transportation forwarded the Cunningham-Schonwald demand to the Civil Service Commission. William Druz, the Chief Examiner and Secretary of the Commission, after examining and comparing the specifications of DOD and DEMS, rejected their claim. He responded:
The application of management duties, the responsibilities, and the qualifications of the two concerned titles are substantially dissimilar.
Counsel for Cunningham and Schonwald wrote to the Commissioner and requested that "consideration be given to an early hearing on the present appeal." Mr. Druz replied that as Chief Examiner and Secretary he had the authority to determine "what titles are comparable and hence, whether a special reemployment list is considered appropriate for other positions", and that the Commissioner had formally approved his decision, which "must remain as the final administrative decision of this department."
An appeal was taken to the Appellate Division, which affirmed the action of the Civil Service Commission on the ground that the record supported the decision. The Appellate Division also concluded that Cunningham and Schonwald were not entitled to a hearing because the Chief Examiner and Secretary of the Civil Service Commission, by only comparing the specifications for the two positions, was "not performing a quasi-judicial function but an administrative function, ministerial in nature."
We granted certification. 67 N.J. 87 (1975).
The primary issues projected are: (1) whether the appellants are entitled to a hearing and, if so, the nature of that hearing; (2) whether the decision of the administrative agency contains ...