Bischoff, Morgan and Furman. The opinion of the court was delivered by Bischoff, J.A.D.
This appeal from a final decision of the Civil Service Commission challenges the constitutionality of the absolute veterans' preference afforded by N.J.S.A. 11:27-4. The pertinent facts are as follows.
Ruth Ballou served from 1971 to 1974 as a provisional appointee in the position of Coordinator of Federal and Local Programs in the Division of Consumer Affairs. On October 1, 1974 she took a competitive examination for permanent appointment to that position and scored 99.999, the highest grade among the applicants taking the examination.
Thomas Kelly, a veteran, received a grade of 82.500. Ballou and Kelly were the two highest of the three persons certified to the position on October 1, 1974. By virtue of N.J.S.A. 11:27-4, which mandates the appointment of a veteran whenever he is among those certified, Kelly was appointed to the position on November 11, 1974.
Ballou, who had developed and directed the Consumer Affairs Local Assistance Program from its inception, wrote to the Acting Director of the Division of Consumer Affairs and objected to the appointment of Kelly, pointing to her substantially higher grade on the examination and her vast experience in the job. The Acting Director replied that, under existing law, he had no alternative but to appoint the veteran who had been certified. In order to insure the continued viability of the program that Ballou initiated, she was appointed "Confidential Agent" at the same salary she had received as a provisional appointee, and many of the
duties of the position were assigned to her rather than to Kelly.
Plaintiff's appeal to the Civil Service Commission was dismissed. She then appealed to this court, contending that the absolute preference afforded veterans pursuant to N.J.S.A. 11:27-4 was unconstitutional because it:
(1) is inconsistent with the grant of power contained in Art. VII, § I, par. 2 of the New Jersey Constitution and therefore invalid;
(2) violates due process in that it (a) deprives the appointing authority of discretion and (b) is arbitrary, capricious and unreasonable in that the means selected do not bear a rational relation to the legislative objective, and
(3) constitutes discrimination against women in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
We disposed of some of the issues not now pertinent and, while retaining jurisdiction, remanded the matter to the Civil Service Commission to conduct a plenary hearing with the focus to be on a "careful examination of the true nature of the statutory veterans' preference, the detailed facts and circumstances concerning the manner in which it has operated and the effect it has upon applications for Civil Service appointments and merit appointments to classified positions under the Civil Service program."
The hearing was held and the Civil Service Commission adopted the findings and recommendations of the hearing officer's report, the concluding paragraph of which reads:
Discrimination is defined as making a difference in treatment or favor on a basis other than individual merit. In the case of the veterans' preference, all non-veterans are discriminated against, per se. However, a moderate amount of such discrimination may be tolerated in favor of a valid and positive public policy, such as veterans benefits, so long as it does not cause an unduly adverse effect on the true merit system. The absolute preference system in New Jersey discriminates excessively in this regard. The absolute and inexhaustible preference system has had a distorting, depressing and adverse effect on Civil Service appointments and the merit system of appointments to classified positions under the Civil Service program.
The record is now before us for further consideration.
At the opening of the hearing both parties stipulated that the "Veterans' Preference Impact Study June, 1975" was an official document and it was admitted as a joint exhibit.
This study, conducted by the Division of Personnel Management and Employee Development, New Jersey Department of Civil Service, to consider the effect of the veterans' preference upon the open competitive examination process, compared the experience of veterans and nonveterans, with the veterans class being further divided for some purposes into a separate subclass of disabled veterans. The conclusions drawn in the study are:
1. While highly competitive on the basis of their examination scores, veterans still receive a large list placement advantage which increases their prospects for appointment.
2. The substantial veteran list placement advantage resulted in significant veteran appointment gains. These gains could have been even greater had the veterans accepted those appointments to which they were legally entitled under the absolute provisions of the present law.
3. The present system of veterans' preference restricts the free selection of qualified personnel for state service. The restrictive effect varies within the several EEOC job categories.
Additional studies admitted into evidence and the testimony of witnesses furnished further evidential support for the conclusions adopted by the Civil Service Commission, quoted above.
The veterans' preference under attack here finds its source in N.J.S.A. 11:27-4:
The Civil Service Commission shall certify to the appointing authority the names and addresses of the three candidates willing to accept employment standing highest upon the register for each position to be filled, and such appointing authority shall select one of the three so certified; provided, however , that whenever the name or names of a veteran or veterans shall be among those certified to the appointing authority the choice of the appointing authority shall be limited to the veteran or veterans whose name or names are included in such certification; whenever the names of two or more veterans shall be amongst those certified to the appointing authority, the appointing
authority shall appoint the veteran whose standing is the highest on the register for the position to be filled. [Emphasis in original]
When an open competitive examination is given for Civil Service classified positions, a list is prepared containing the names of all eligibles who passed the examination. The ...