The opinion of the court was delivered by: SAROKIN
The court here confronts issues no less difficult than those discussed in the court's recent opinion concerning the layoffs of firefighters. In this case, the legitimate interests of affirmative action and seniority clash in the arena of promotions. Though positions already held are not at issue as in the layoff context, the problem of who shall be promoted nonetheless involves recognized expectations to attain such positions. It therefore implicates the same fundamental concerns as were earlier addressed by the court.
East Orange is a signatory to the Consent Decree entered into between the parties to this action and signed by the court on May 30, 1980. That Decree provides, in pertinent part, that
The defendants are compelled by law and by entering into this Order acknowledging their obligation to and agree they shall, refrain from engaging in any act or practice which has the purpose or effect of unlawfully discriminating against any black or Hispanic employee of, or any black or Hispanic applicant for employment with their respective fire departments because of such individual's race, color, or national origin. Specifically, the defendants shall not discriminate in hiring, assignment, training, discipline, promotion or discharge because of race, color, or national origin.
Consent Decree para. 1. The Decree provides, in particular, with respect to promotions to ranks above the level of firefighter that the State of New Jersey "shall review the composition of the current selection process . . . to ensure job relatedness and with a goal of eliminating adverse impact on black and Hispanic applicants." Consent Decree para. 7(a). Certain testing procedures consistent with Title VII of the Civil Rights Act of 1964 were mandated, id., and reporting procedures imposed. Consent Decree para. 7(c). Paragraph 8 further provides that
Should plaintiff United States, at any stage of the process set forth in paragraph 7 above, or thereafter, determine that the promotional selection process will have the purpose or effect of discrimination against black or Hispanic applicants, plaintiff shall notify the applicable State and municipal defendants, and the affected parties shall meet within a reasonable period to discuss resolution of the matter. If the parties fail to resolve the matter, any affected party may move the Court for resolution.
The parties are before the court pursuant to this paragraph.
In East Orange, an eligibility list for promotion to the rank of Fire Captain was promulgated on October 18, 1979. This list, denominated PM 1476, was to expire on October 17, 1981. However, the lifetime of PM 1476 was extended by one year when, on March 24, 1981, the Mayor of East Orange announced "a freeze on all departments as to hiring, promotions and expenditures." The Mayor's Executive Order was held by the New Jersey Civil Service Commission to satisfy the requirements of N.J.S.A. 11:22-34.1 which provides for the one-year extension of eligibility lists when a municipality "has adopted an ordinance, resolution, rule or regulation temporarily barring promotions for economic reasons . . ." The Commission ruled that an executive order fell within the "ordinance, resolution, rule or regulation" language of the statute and that promotions and hiring in the East Orange Fire Department were, in fact, frozen notwithstanding certain emergency appointments. In any event, PM 1476 eventually resulted in the appointment of eight new fire captains. All eight were white; the best positioned black on the list was ranked twentieth.
On March 25, 1982 a new Fire Captain eligibility list was promulgated. This list, PM 0661C, includes thirty-five persons, of whom three -- numbers 26, 29 and 31 -- are black. After the Mayor of East Orange announced another freeze, on December 1, 1982, this list was extended and is now set to expire on March 24, 1985. It is this extension to which plaintiff United States now objects. Neither the City of East Orange nor the State of New Jersey have opposed the motion of the United States for supplemental relief in the form of an injunction against the extension of PM 0661C beyond October 18, 1984. The motion is, however, strongly contested by certain white firefighters who have moved to intervene in this matter.
Plaintiff's objection to the extension of PM 0661C is based upon facts to which the City of East Orange has stipulated. Thus, the composition of the East Orange firefighter force is 31.8% black; however, in the ranks above firefighter only one of forty-six officers is black. Stipulation paras. 1, 2. Plaintiff claims that, as opposed to the numbers of blacks that appeared on PM 1476 and PM 0661C, a new list would result in substantial black promotions; thus it states that thirty-three of East Orange's forty-two black firefighters will be eligible to take the examination, now scheduled for May 31, 1984, from which such list will be drawn.
If, however, PM 0661C is extended, East Orange estimates that as many as ten additional persons, all white, may be appointed prior to the expiration of the list.
Hence, plaintiff claims, an extension of PM 0661C will have "a substantial adverse effect on the eligibility for and likelihood of the promotion of black firefighters to the now virtually all white supervisory ranks of the East Orange Fire Department." Plaintiff's Memorandum at 5.
More controversial is the second prong of plaintiff's argument. Noting that the Mayor's Executive Order of December 1, 1982 did not apply to "those expenditures which are essential for the delivery of services to our citizens," which "emergency expenditures" required clearance by the Mayor's office, plaintiff contends that, in fact, no freeze existed. Promotions, it argues, have not been delayed, nor have there been markedly fewer promotions than in a normal two-year period -- there have been six, instead of the two-year average of eight. Therefore, the government concludes, "there would be no inequity to those on the list if the extension were terminated." Plaintiff's Memorandum at 4.
Intervenors dispute this. Claiming a disruption of the legitimate rights of senior employees, they argue that promotions did not occur in average quantities or as per normal promotional procedures because of what was, in fact, a freeze. In particular, they argue that not six, but four promotions occurred from March 25, 1982 to December 31, 1983: the other two were idiosyncratic, one from a prior list and the other due to a death in the line of duty. Citing layoffs, demotions, and the elimination of positions, intervenors contend that promotions during this time period were characterized by long delays. Thus, they conclude, it would be unfair to those listed on PM 0661C if this list were suddenly rendered inoperative; they have been waiting on the list for a long time, and would have been promoted but for the economic hardship faced by East Orange, and the ensuing hiring freeze. Minority firefighters, on the other hand, though forced to wait an additional period of time for the possibility of promotion, would be thus inconvenienced far less than their senior white counterparts.
Defendant East Orange has responded by memorandum and affidavit, arguing that no promotion has been postponed because of the freeze except for one that required the Board of Fire Commissioners to decide upon the proper number of deputy chiefs. East Orange adds that it considered intervenors' alternative version of the facts prior to submitting the stipulation entered into between it and the plaintiff United States. The government has also responded by noting that the delays, layoffs, etc. to which intervenors point as evidence of a freeze occurred prior to October 18, 1982, during the continuing term of PM 1476. Hence, any effect upon firefighters awaiting promotion on PM 0661C was, ...