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Malone v. Fender

Decided: March 30, 1978.

ROBERT MALONE, LOUIS POSTEL AND BARTHOLOMEW BEVINS, PLAINTIFFS-RESPONDENTS,
v.
JAMES L. FENDER, JOSEPH H. CAPASSO, ROBERT J. OLDKNOW, JOSEPH A. STUART, MICHAEL C. STOIA, THOMAS H. MAGEEAN, WILLIAM R. CONN, GEORGE J. FLANAGAN, EMIL J. NIGRO, RAYMOND J. HERMANN, WARREN B. WILSON, JOHN A. ROBERTS, WILLIAM G. SCHALK, WILLIAM DOUGAN, JAMES MALCOLM, JAMES HERON, GEORGE J. HARRIS, THEODORE J. DURANTE, FRANCIS X. LYNCH, FRANCIS J. MEYERS, JOHN L. PALMER, JOSEPH MCMILLAN AND DANIEL TAYLOR, INTERVENORS-APPELLANTS, V. CIVIL SERVICE COMMISSION, DEPARTMENT OF CIVIL SERVICE OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



Fritz, Botter and Ard. The opinion of the court was delivered by Ard, J.A.D.

Ard

This is an appeal from a final determination of the Civil Service Commission extending the eligibility list for the position of Fire Captain, Town of Kearny, New Jersey, for a period of one year, until October 30, 1977. The basic question to be resolved is whether N.J.S.A. 11:22-32, which establishes the term of eligibility for those certified for promotion in local service, allows the Commission, through the Chief Examiner and Secretary, to extend the period during which an employment list remains in force.

In 1974 a promotional examination was given by Civil Service for the position of Fire Captain, Town of Kearny, New Jersey. On October 31, 1974 the Department of Civil Service promulgated an eligibility list for the aforesaid position. The list was due to expire on October 30, 1976. Prior to the expiration of the list, Kearny firemen, Robert Malone, Louis Postel and Bartholomew Bevins, petitioned the Civil Service Commission for an extension of this list for a period of one year. The plaintiffs were all eligibles on the 1974 list who had not yet been appointed.

Thereafter, after considering documentations supplied by interested parties, the Civil Service Commission extended the duration of the 1974 list for a period of one year until October 30, 1977.

Appellants are Kearny firemen who object to the extension of the promotional list by the Civil Service Commission. They are also on this list; however, their position is such that they apparently feel their chances of promotion would be enhanced by a new test rather than remaining on the extended list.

On July 13, 1977 the town council of Kearny conditionally appointed two of the plaintiffs, Louis Postel and Bartholomew Bevins, to the position of Fire Captain with the understanding

that the appointments were conditioned upon the outcome of this appeal.

In advising plaintiffs of the granting of their request to extend the eligible list for Fire Captain, the Civil Service Commission, through its Chief Examiner and Secretary, advised them:

After examining the pertinent statutory authority dealing with the establishment of terms of eligibility of those certified for promotion, we conclude the Civil Service Commission had no authority to extend the list in question.

N.J.S.A. 11:22-32 establishes the period of eligibility of an applicant certified for promotion in local service, such as a Fire Captain in this case. It states:

Appointments shall be made to or employment given in all positions in the competitive class not filled by promotion, reinstatement, transfer or reduction under the provisions of this subtitle and the rules made in pursuance thereof, by appointment from among those certified to the appointing authority in accordance with the provisions of section 11:22-16 of this title. The 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. Appointments shall be made from the eligible list most nearly appropriate, and a new and separate list shall be created for a stated position only when no appropriate list exists from which appointment may be made.

The statute does not authorize the Commission to extend the period during which an employment list remains in force. This is unlike N.J.S.A. 11:9-10, ...


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