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Imbriacco v. State Civil Service Commission

Decided: May 19, 1977.

FRANK IMBRIACCO, KENNETH NOCERA, GREGORY SCHNEIDER, LAWRENCE SMITH, MICHAEL VASILEVICH, FRANK RUSCIANO AND MARTY STANLEY, CLAIMANTS-APPELLANTS,
v.
STATE CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY; CITY OF ELIZABETH, RESPONDENTS-RESPONDENTS



Matthews, Seidman and Horn.

Per Curiam

[150 NJSuper Page 106] Appellants, seven members of the Fire Department of the City of Elizabeth, following their taking of a Civil Service fire captain examination in May 1973, were notified on July 13, 1973 of their final ratings and ranks on

the eligible list as a result of said test. The notice also stated that the eligibility list would continue until July 20, 1976.

On or about August 28, 1975 the business administrator of the city notified them that a hiring and promotion freeze had been imposed as of said date. The freeze continued and was in effect upon the expiration date of the eligibility list and thereafter.

On May 11, 1976, by reason of the freeze, appellants requested the Civil Service Commission to extend the viability of the eligibility list beyond July 20, 1976 for a time equal to the interval between August 28, 1975 and July 20, 1976.

The Director of Local Government Services of the Commission advised that

At the request of appellants for a departmental appeal from the foregoing ruling, a review pursuant to N.J.A.C. 4:1-8.15 followed. As a result thereof a final administrative determination of the Commission was rendered, upholding the ruling of the Director of Local Government Services that the Commission was without authority to extend the list's viability beyond three years. Appellants appeal this determination. R. 2:2-3(a).

Appellants argue that the denial of their application (a) caused an unjust result and the possibility of abuse of the Civil Service Act; (b) took from them a property right without due process of law. We find these arguments to be unpersuasive. Accordingly, we affirm for the following reasons as well as the reasoning of In re Application for an Extension of Newark Police Sergeant and Lieutenant List, etc. , 149 N.J. Super. 121 (App. Div. 1977).

N.J.S.A. 11:22-32 mandates that "[t]he term of eligibility of an applicant shall be fixed for each list by the commission at not less than one nor more than three years * * *."

However, appellants submit that N.J.S.A. 11:22-33 provides the authority for the Commission to extend the time that the eligibility list is effective. That statute provides:

When an eligible list has been established by the commission for any position or employment in the service of any county, municipality or school district, and a proceeding has been instituted in any court of record, with respect to the filling of any position or employment from such eligible list, such list shall not expire during the period in which such litigation is pending but shall be extended from the time of the entry of judgment, for a period of time equal to the period during which such proceeding or litigation was pending.

A fair reading of this section does not support appellants' view. It clearly applies only when "a proceeding has been instituted * * * with respect to the filling of any position or employment from such eligible list, * * *." Thus the statute contemplates the litigation as to the filling of a job -- not ...


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