On appeal from a final decision of the Civil Service Commission.
Antell, Shebell and Matthews. The opinion of the court was delivered by Matthews, J.A.D. (retired temporarily assigned on recall).
[205 NJSuper Page 32] This is an appeal from the order of the Department of Civil Service which affirmed the determination of the director that the Pemberton Township Municipal Utilities Authority was subject to the civil service laws.
The issues to be resolved in this case involve primarily questions of law. The factual record is scant. The facts recited in this section are taken from the Pemberton Township Municipal Utilities Authority's brief and the respondent's decision.
On July 11, 1969 the Township of Pemberton by ordinance established the Authority pursuant to N.J.S.A. 40:14B-1 et seq., the municipal and county utilities authorities law. Prior to that action, in 1959 Pemberton Township adopted the State's civil service statutes in a referendum procedure provided for in N.J.S.A. 11:20-1 et seq. Construction of sewerage collection and treatment facilities began in 1973 and in 1975 these facilities became operative. The facility was designed to be regional to service Pemberton Township, Pemberton Borough and adjacent municipalities. The Authority has during its existence provided only sewerage treatment and collection services.
The initial determination made by the Director of County and Municipal Government Services that the civil service statutes applied to Authority employees not excepted under N.J.S.A. 40:14B-18 relied on the fact that Pemberton Township voluntarily subjected itself to those statutes and subsequently established the Authority. The determination cited as dispositive the Civil Service Commission's decision In the Matter of Southeast Morris County Municipal Utilities Authority (1980) (" Southeast "), which in turn relied upon the reasoning of the Appellate Division in an unpublished opinion in Lindenwold Borough Municipal Utilities Authority v. Civil Service Commission, No. A-2008-71, (App.Div. Jan. 16, 1973) (" Lindenwold "). The Southeast and Lindenwold decisions are fully set forth in the appellant's appendix.
The Commission's decision emphasized two points. First, the Commission stressed that the Authority was "established by and servicing a Civil Service jurisdiction, [and therefore] is subject to the provisions of Title 11, Civil Service." The Commission stated "the critical question is not whether a utilities
authority is an agency of a township that is under Civil Service law, but instead whether the Legislature intended Title 11, Civil Service to be applicable to a utilities authority." The Commission concluded that N.J.S.A. 40:14B-18's exemption from Title 11 of certain positions indicated the Legislature's intent to include under civil service law coverage other authority employees not specifically exempted. Second, the Commission noted that the Authority, as a creature of the State, could not challenge statutory classifications made by the Legislature.
The Authority argues that application of the civil service statutes to some of its employees cannot be justified by a theory that the Authority has an agency relationship with Pemberton Township. The Authority asserts that the statutory scheme providing for its establishment indicates that it is designed to be an "independent entity." The agency theory was not significantly relied on by the Commission in its decision. This court, however, relied exclusively on that theory in its unpublished 1973 Lindenwold decision. The Commission relies on the recent opinion of this court in Matter of Sussex County Mun. Utilities Authority, 198 N.J. Super. 214 (App.Div.1985), certif. den. 101 N.J. 267 (1985), for the proposition that the agency issue need not be reached where legislative intent is clear from a reading of the enabling statute.
Two cases discuss the agency theory in the context of whether certain governmental entities are subject to the civil service statutes. In State v. Parking Authority of the City of Trenton, 29 N.J. Super. 335, 336 (App.Div.1954) the court considered the question whether employees of the Trenton Parking Authority were subject to civil service statutes. This court reviewed the structure and powers of the Parking Authority. 29 N.J. Super. at 336-338, noted that a statutory provision describing the Authority as an agency was not controlling and concluded:
The Parking Authority Law, supra, authorizes the authority to conduct its own fiscal affairs and produce its own revenue. The authority cannot depend upon moneys raised by ...