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Brown v. State

Decided: June 12, 1992.

DOUG BROWN, APPELLANT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF PERSONNEL AND CITY OF ATLANTIC CITY, RESPONDENTS



On appeal from the New Jersey Department of Personnel.

King, Brochin and Carchman. The opinion of the court was delivered by Carchman, J.s.c. (temporarily assigned).

Carchman

The opinion of the court was delivered by

CARCHMAN, J.S.C. (temporarily assigned).

Appellant, Douglas Brown (Brown), a veteran of the 1982 Lebanon peacekeeping mission, appeals from a final determination of Commissioner of the Department of Personnel (DOP) denying him a veteran's preference on the competitive list for the position of firefighter. The issue presented on this appeal is whether the recent amendments, L. 1991 c. 390 § 1, ("amendments"), to the veteran's preference statute, N.J.S.A. 11A:5-1(b), formerly N.J.S.A. 11:27-1(b), which includes in the definition of "veteran" persons who participated in the Lebanon Peacekeeping Mission, Grenada Peacekeeping Mission, Panama Peacekeeping Mission and Operation "Desert Shield/Desert Storm," should be applied retroactively. We conclude that the

amendment should be applied prospectively and affirm the decision of the Commissioner.

I.

In June, 1988 Brown had submitted documentation demonstrating his service in the United States Navy and his participation in the Lebanon Peacekeeping Mission. At the time of Brown's application, only veterans of World War I, World War II, the Korean conflict and the Vietnam conflict, as well as specified military engagements prior to World War I, were eligible for veteran's preference in accordance with the definition and terms of N.J.S.A. 11A:5-1(b). DOP had notified Brown on June 15, 1988 of his "non-veteran" status.

DOP announced an open-competitive examination for firefighter for Atlantic City with a closing date of February 28, 1991. Brown applied for the examination. The examination was conducted on June 22, 1991, and Brown was advised of the results in January, 1992. He ranked "116 non-veteran." If granted veteran status, Brown's rank would be elevated to tenth and virtually insure his appointment.

On January 16, 1992, Governor Florio signed L. 1991 c. 390 into law. This legislation, effective that same date, amended N.J.S.A. 11A:5-1(b) by adding to the definition of "veteran" those persons who served in the military during the Lebanon Peacekeeping Mission, the Grenada Peacekeeping Mission, the Panama Peacekeeping Mission and Operation "Desert Shield/Desert Storm" Mission. The amendments delineate the time periods of the military operations so that participation in the Lebanon Peacekeeping Mission refers to service on that mission during the period "on or after September 26, 1982."

Subsequent to the effective date of the amendments, Brown wrote to DOP asserting that because of the amendments, he should be recognized as a veteran on the list of qualified applicants. On February 26, 1992, Anthony J. Cimino, Commissioner of DOP, responded to Brown indicating that the benefits

extended by the new amendments would not be applied retroactively to the firefighter's list but assured Brown that he would be granted veteran's preference for all future exams.

On April 2, 1992, Brown improperly filed an action in the Law Division challenging DOP's decision. See, Pascucci v. Vagott, 71 N.J. 40, 53, 362 A.2d 566 (1976). The Law Division Judge declined to hear the matter and determined that it should be transferred to and heard by this court. R. 2:2-3(a)(2); R. 1:13-4. Brown then correctly filed a notice of appeal from DOP's final determination denying Brown's veteran status. Brown also filed an application for emergent relief, R. 2:9-8, as appointments from the firefighter's list were about to be made. The application to stay appointments was denied but we accelerated the appeal. R. 2:9-2.

II.

The veteran's preference has long antecedents in the constitutional and statutory history of New Jersey. First enacted in 1932 as L. 1932 c. 122 ยง 3(29a), a supplement to legislation creating the merit system in New Jersey, L. 1908 c. 156, the early statute creating a veteran's preference was elevated to ...


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