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Gallagher v. Mayor and Council of Town of Irvington

Decided: March 9, 1982.

JOSEPH P. GALLAGHER, PLAINTIFF,
v.
MAYOR AND COUNCIL OF THE TOWN OF IRVINGTON, DEFENDANT



Baime, J.s.c. (temporarily assigned).

Baime

This case presents novel questions pertaining to the construction of N.J.S.A. 40A:14-9.4. That statute confers a preference with respect to a resident who achieves "the same final average score" as a nonresident in a promotional examination for appointment to a position in a municipal fire department. More specifically, the statute provides that a resident must be appointed in the event his test score equals that of a nonresident. At issue is whether dual residency satisfies the statutory requisite. Also in dispute is whether a resident whose test score exceeds that of a nonresident is entitled to a preference under the statute.

Plaintiff instituted this action in lieu of prerogative writs seeking to vacate the appointment of Thomas McGotty as fire chief in the Town of Irvington. Due to McGotty's obvious interest in the outcome of these proceedings, his application for intervention was granted. See R. 4:33-1 and 2. Except with respect to questions regarding defendant-intervenor's residency, the facts are not in dispute and are essentially a matter of public record. Plaintiff has resided in Irvington for most of his life and has served in a variety of capacities in that municipality's fire department for about 24 years. In the latter part of 1980 plaintiff, McGotty and three other individuals were administered a Civil Service promotional examination for the position of fire chief. It is uncontroverted that plaintiff's test score

substantially surpassed that of all other eligible individuals. McGotty ranked third in the examination. On March 23, 1981 the mayor appointed McGotty to the position of fire chief. Shortly thereafter the governing body confirmed the appointment. This action followed.

The facts pertaining to defendant-intervenor's residence were hotly contested. The record reveals that he and his wife own a single-family home in Edison. Two of the McGottys' children also reside in the dwelling; a third lives at the college she is presently attending. The McGottys' federal income tax returns list their home address as Edison. Further, ownership registrations with respect to defendant-intervenor's two automobiles bear that address. The McGottys have joint checking and savings accounts listing Edison as their residence. In point of fact, the veterans' preference claim form which accompanied McGotty's application for the position of fire chief and which was submitted to the Department of Civil Service sets forth the Edison address as his residence. Several other documents, including fire department "declaration of residence" forms, personnel roster lists, payroll sheets and driver's licenses all bore the Edison address until shortly after defendant-intervenor's appointment. At that time these documents were altered at McGotty's request to reflect an Irvington address.

Although McGotty testified that he resided with his mother and sister on a part-time basis in a two-family house in Irvington, the evidence presented in that regard was extremely tenuous. It is undisputed that he does not pay rent or contribute to the financial upkeep of the house. He is not listed as the owner in the deed. To be sure, defendant-intervenor occasionally sleeps overnight at the Irvington address, maintains a minimal wardrobe there and is registered to vote from that residence. Nevertheless, there are no marital difficulties between him and his wife and it is abundantly clear that his family, social and religious relationships center about Edison. In sum, the relatively few indicia of residence in Irvington existing in this case pale within the context of the overwhelming evidence presented

that McGotty regards Edison as his home -- the place where his family lives.

I

Although the present statutory scheme is not without its ambiguities, the legislative history is somewhat illuminating. Our statutes have long conferred discretion upon the appointing authority to select one of the three individuals achieving the highest examination scores. N.J.S.A. 11:22-16. In essence, the statutory "rule of three" authorizes the employing authority to appoint "one of the three . . . certified [as] standing highest" among the candidates for the position. Id. The rule, "though effectuating a fundamental legislative concern in preserving merit standards in public employment, was not conceived of as an immutable or total bar to the application of other important criteria" in the governmental selection process. Terry v. Mercer Cty. Freeholder Bd. , 86 N.J. 141, 150 (1981). The discretion conferred has been limited in cases in which the Legislature has granted preferences.*fn1

Of course, questions pertaining to the applicability of preferences arise only following examination of prospective employees who qualify. Before being permitted to take the examination, applicants must satisfy various conditions. Perhaps the most controversial condition of many types of governmental employment pertains to residence. Prior to 1972 all office-holders were required to reside in the municipality in which they were employed. N.J.S.A. 40:11-1. The statutory scheme further provided that "[w]henever an officer of a municipality ...


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