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Malone v. Fender

Decided: May 22, 1979.

ROBERT MALONE, LOUIS POSTEL AND BARTHOLOMEW BEVINS, APPELLANTS,
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, RESPONDENTS, V. CIVIL SERVICE COMMISSION, DEPARTMENT OF CIVIL SERVICE OF THE STATE OF NEW JERSEY, APPELLANT



On certification to the Superior Court, Appellate Division, whose opinions are reported at 158 N.J. Super. 190 (1978) and 160 N.J. Super. 221 (1978).

For reversal -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Handler, J.

Handler

[80 NJ Page 132] The issue on this appeal is whether the Civil Service Commission has the power to extend for a third year a local government employment eligibility list originally promulgated for two years. More specifically, the questions presented are whether N.J.S.A. 11:22-32, which provides for the duration of such eligibility lists, contemplates an extension beyond the term of the list as originally fixed and, if so, whether the Commission has validily extended the term

here in light of the evidence presented and after the list had already expired.

In August 1974 the Department of Civil Service held a promotional examination for the position of Fire Captain in the Town of Kearny. The Department subsequently issued an employment eligibility list effective October 31, 1974, which ranked the 32 candidates who had successfully completed the examination. The list was to be in effect for two years, expiring on October 30, 1976.

In November 1974 the Town appointed the top four candidates from the list to Fire Captain positions. Thereafter, in August 1976, the Town asked the Civil Service Department to conduct another examination. An exam was held in February 1977, and a new list was promulgated on June 23, 1977, with an expiration date of June 22, 1979.

On October 5, 1976, before the scheduling of the second examination and shortly before the 1974 eligibility list was due to expire, petitioners, Kearny firemen who were ranked fifth through seventh on the 1974 list but had not been promoted to Fire Captain, requested from the Civil Service Commission an extension of the list for an additional year. Their request was repeated in a letter dated October 21, 1976 sent to the Director of Local Government Services of the Civil Service Department. That letter refers to a contemporaneous conversation between petitioners' counsel and the Director to the effect that pending action by the Commission, "the individuals on the list will not be jeopardized as a result of its technical expiration on October 30, 1976." The matter was placed on the Commission's agenda for its next regular meeting on November 10, 1976, at which time the Commission postponed a decision in order to permit all interested parties to comment on petitioners' request. After considering documentary evidence, the Commission voted, on March 15, 1977, to extend the expiration date of the eligibility list for one year, to October 30, 1977. The decision of the Commission was communicated to the parties in a letter dated April 11, 1977, which related that the Commission

had considered all material presented and that it had voted to extend the list in accordance with the Commission's rules and regulations. The letter did not further elucidate reasons for the decision. Respondents, Kearny firemen also on the list but at a lower ranking than petitioners (with the exception of one individual not on the list), appealed from the Commission's determination.

The Appellate Division denied a motion to stay the decision of the Commission pending the appeal "without prejudice to its renewal in the event of an appointment from the extended eligibility list which will expire on October 30, 1977". On July 13, 1977 the town council of Kearny conditionally appointed two of the petitioners, Louis Postel and Bartholomew Bevins, to the position of Fire Captain pending the outcome of this litigation. On March 30, 1978 the Appellate Division reversed the decision of the Civil Service Commission, holding the Commission without power to extend the list, and voided the appointments made after October 30, 1976, the original expiration date of the eligibility list. 158 N.J. Super. 190 (1978). In a supplementary opinion the Appellate Division held its determination to be prospective only. 160 N.J. Super. 221 (1978). This Court granted certification. 77 N.J. 501 (1978).

I

N.J.S.A. 11:22-32 empowers the Civil Service Commission to set the period of eligibility for appointment of applicants certified, as here, for promotion in local government service. The Commission under this statute may set the term of eligibility at not less than one nor more than three years. In this case, the Commission initially set the eligibility period at two years. It thereafter extended this list to the maximum statutory term of three years. The statute is itself silent on the matter of extensions, providing in full:

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 ...


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