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Makowitz v. State

Decided: December 22, 1980.

WILLIAM C. MAKOWITZ AND EDMOND BURCHARDT, PLAINTIFFS-APPELLANTS,
v.
STATE OF NEW JERSEY, DEPARTMENT OF CIVIL SERVICE, DEFENDANT-RESPONDENT, AND TOWNSHIP OF PARSIPPANY-TROY HILLS, INTERVENOR-RESPONDENT



On appeal from the Department of Civil Service.

Fritz, Polow and Joelson.

Per Curiam

Petitioners, as members of the Parsippany-Troy Hills police department, were declared ineligible for a promotional examination for police sergeant in that township. They urge that the Department of Civil Service incorrectly ruled that their prior service with the Newark Police Department could not be tacked on for the eligibility prerequisite of five years of continuous service. Since they had not yet completed five years in Parsippany-Troy Hills prior to eligibility cut-off date, Civil Service ruled that the requirement of "continuous" service for this examination had not been satisfied.

The same issue had been raised collaterally by one of the petitioners herein in Kloss v. Parsippany-Troy Hills , 170 N.J. Super. 153, 161-162 (App.Div.1979), wherein we recognized petitioners' entitlement to seniority credit for services rendered in other jurisdictions for certain purposes. However, since the problem now before us had not been briefed at that time, we ordered a remand for an initial determination of this issue. The remand was rendered moot by the administrative decision involved in the instant appeal.

Petitioners rely on the following portions of N.J.S.A. 40A:9-5:

Whenever heretofore or hereafter a transfer has been or shall be effected by appointment, assignment or promotion of a municipal employee to [another municipal or county position] . . ., in counties of the first or second class, the period of such prior service in said county or municipal employment, for any

purpose whatsoever shall be computed as if the whole period of employment of such employee had been in the service of the department, or in the position, to which the said employee had been transferred.

This statute was recently declared unconstitutional, there appearing no rational basis to discriminate between employees in counties of the first and second classes and those in other counties. Kenney v. East Brunswick , 172 N.J. Super. 45, 52-53 (App.Div.1980). However, Kenney by its terms has no retrospective effect. Id. at 53. Since the administrative decision herein predated Kenney , we resolve this appeal without regard to the constitutionality of N.J.S.A. 40A:9-5. See Grieco v. Newark Employees' Retirem. Sys. , 173 N.J. Super. 474, 476 (App.Div.1980).

To the extent that N.J.S.A. 40A:9-5 conflicts with the Civil Service Act, the latter controls. Parelli v. Civil Service Dep't , 138 N.J. Super. 364, 365-366 (App.Div.1976), aff'd o.b. 72 N.J. 480 (1977). Petitioners contend that there is no conflict. Respondents, however, contend that several provisions of the Civil Service Act, as interpreted by Civil Service, implicitly mandate that promotional eligibility be based on continuous service in the jurisdiction in which the appointment is to be made.

While our conclusion is of limited significance in view of the unconstitutionality of the statute, we reject respondents' argument that a voluntary transfer accomplished by way of resignation in one jurisdiction and new appointment in another is not within the protective scope of N.J.S.A. 40A:9-5. Kloss v. Parsippany-Troy Hills, supra , 170 N.J. Super. at 156; Widmer v. Mahway , 151 N.J. Super. 79, 83 (App.Div.1977); Pfeffer v. Delran , 159 N.J. Super. 497, 504 (Law Div.1978); Caldwell v. Rochelle Park , 135 N.J. Super. 66, 78-80 (Law Div.1975). While the credit accorded by N.J.S.A. 40A:9-5 may not be applicable for promotional purposes from one job title to an unrelated job title, that issue is not before us. Here, the credits must be deemed available to petitioners unless prohibited by the Civil Service Act. See Kloss v. Parsippany-Troy Hills, supra , 170 N.J. Super. at 161-162.

Two provisions of the Civil Service Act are ...


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