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In re Leary

Decided: July 20, 1982.

IN THE MATTER OF CHARLES A. LEARY


On certification to the Superior Court, Appellate Division, whose opinion is reported at 180 N.J. Super. 557 (1981).

For reversal and remandment -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. For affirmance -- None. The opinion of the Court was delivered by O'Hern, J.

O'hern

[91 NJ Page 152] The sole issue in this case is whether municipal residency, for purposes of receiving preference in initial police officer hiring,

should be determined at the closing date for the Civil Service examination or the actual appointment date.

The Civil Service Commission and the Appellate Division held that the relevant date was the closing date for the examination. We hold that it is the date of appointment.

N.J.S.A. 40A:14-123.1a permits municipalities to grant preference to residents in initial appointments of police officers. The City of Elizabeth announced an examination for the position of police officer in the city with a June 23, 1977 closing date for the filing of applications. The examination was limited to Elizabeth residents because the city believed that it had a sufficient pool of candidates within its boundaries. Charles Leary was then a city resident and was admitted to the examination. Two years later, in July 1979, the city was advised by the Civil Service Commission that Leary's name was on the certification of eligibles for appointment to the position of police officer. The city claimed that Leary was not a resident and requested that his name be removed from the certification on the grounds that he failed to meet the residency requirement. Leary appealed to the Department of Civil Service for review of the city's decision to remove his name from the eligible list. The Director of the Division of Local Government Services denied the city's request, stating that "[a] candidate is considered to have satisfied the residency requirement if he was a resident as of the closing date and may not have his or her name removed due to a subsequent move from the jurisdiction." The Commission upheld the Director on appeal. The city appealed the Commission's decision to the Appellate Division, where it did not challenge the Commission's finding of fact that Leary was a resident of Elizabeth as of the closing date for filing of applications. The city's only contention was that to meet the residency requirement of the statute a candidate must be a resident of the city as of the date of appointment and not merely as of the closing date for the filing of applications.

The Appellate Division affirmed the determination of the Commission. It concluded that "[t]he Legislature intended that

the class be fixed as of the date of the making of the classification, thus, rendering a subsequent change of residence inconsequential vis-a-vis the right to remain in the class." It reasoned that the statute was ambiguous, that there was no material difference with respect to the interest of the municipality either at the date of classification or the date of appointment, and that the Commission's interpretation of the statute was entitled to deference. We granted the city's petition for certification. 89 N.J. 387 (1981).

I.

The interests of local government in preferring residents for public employment have been repeatedly sustained by courts against constitutional challenge. In Kennedy v. City of Newark, 29 N.J. 178 (1959), Chief Justice Weintraub upheld the Newark city ordinance requiring residence of all of its officers and employees as a condition for continued employment, stating "[g]overnment may well conclude that residence will supply a stake or incentive for better performance in office or employment. . . ." 29 N.J. at 184. See McCarthy v. Philadelphia Civil Service Comm., 424 U.S. 645, 96 S. Ct. 1154, 47 L. Ed. 2d 366 (1976) (upholding Philadelphia ordinance requiring city employees to be city residents); Detroit Police Officers Ass'n v. Detroit, 385 Mich. 519, 190 N.W. 2d 97 (1971), appeal dismissed for lack of substantial federal question, 405 U.S. 950, 92 S. Ct. 1173, 31 L. Ed. 2d 227 (1972) (upholding residency requirement for police officers); Abrahams v. Civil Service Comm., 65 N.J. 61 (1974) (upholding residency requirement for Newark city employees). See also United Bldg. & Constr. Trades Council v. Camden, 88 N.J. 317 (1982) (upholding Camden ordinance setting goals for employment of residents in public works projects).

Until 1972 the Legislature had required, subject only to limited exceptions, that police officers reside in the municipality where they sought employment for two years preceding their appointments and continue to live in the municipality during their ...


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