On appeal from the Final Decision of the Merit System Board.
Dreier and Skillman. The opinion of the court was delivered by Dreier, J.A.D.
[264 NJSuper Page 155] The Ashland Fire District in Voorhees Township appeals from a determination of the Merit System Board that Kevin Dunn and Mark Lafferty were not "grandfathered" into permanent positions of firefighters by reason of their prior service as volunteer firefighters in the District. The challenge to Dunn's and Lafferty's status had been initiated by petitioner, Kenneth P. Tavani, who has also taken an appeal from a related decision of the Merit System Board refusing to determine whether Dunn and Lafferty were disqualified from taking a competitive examination for the firefighter positions by reason of their non-residence in the District. Since neither Dunn nor Lafferty took a make-up competitive examination scheduled for them after it was determined that they were not grandfathered into the positions, the Merit System Board found Tavani's petition to be moot. We consolidate the two appeals for the purpose of this decision.
Prior to September 6, 1989, the Ashland Fire District in Voorhees Township was served by a completely volunteer fire company. At the September 6, 1989 monthly meeting of the District's Board of Fire Commissioners, it adopted a resolution creating two paid positions, one for a Fire Suppression Specialist/EMT (firefighter), and another for a Fire Chief. The Board had adopted an earlier resolution creating two firefighter positions, but this earlier resolution was rescinded at the meeting. (We have not been informed how the second paid firefighter position was authorized, but all parties seem to have assumed that there was such authorization).
Following the October 4, 1989 meeting of the Commissioners, the positions were posted for application and Tavani, Dunn and Lafferty, among others, applied. In addition, Steve Nardello applied for and was appointed to the position of Fire Chief, which he had held for several years on a volunteer basis. Dunn and Lafferty received the firefighter positions as of November 27, 1989.
The Merit System Board determined that by creating the paid positions, the District came under the jurisdiction of the Civil Service Act, N.J.S.A. 11A:1-1 et seq. (Voorhees Township is a Civil Service jurisdiction.) The new positions were thus subject to the testing provisions of the Act, 11A:1-2, 4-1 to 4-16, unless exempted by the grandfather provisions which are applied upon a jurisdiction's entry into the Merit System. N.J.S.A. 11A:9-9 reads:
Any employee of a political subdivision who, at the time of adoption of this title, was actively employed by the political subdivision continuously for a period of at least one year prior to the adoption of this title, . . . and who comes within the career service, shall continue to hold such position, and shall not be removed except in accordance with the provisions contained in this title.
On September 28, 1990, the Board of Fire Commissioners certified to the Department of Personnel that Nardello, Dunn and Lafferty all have "been employees of the Board of Fire Commissioners, Voorhees Fire District # 1 since 1986", thus ostensibly satisfying the one-year requirement of the statute. The Department
of Personnel responded to this certification and the "Duties Questionnaires" completed by the employees, and found that Nardello, Dunn and Lafferty were entitled to be grandfathered into permanent status and thus were not required to take the competitive examination.
In August 1990, the competitive examination was announced. Tavani and others applied and took the examination. Nardello, Dunn and Lafferty did not, since they were already classified as permanent employees. Tavani ranked seventh on a list of seven.
On July 8, 1991, Tavani appealed to the Department of Personnel, challenging the classification of Nardello, Dunn and Lafferty as permanent employees. On November 15, 1991 the Merit System Board issued a final decision determining that Dunn and Lafferty had been improperly classified, since they were not "in active service and [on] the regular payroll" of the District for at least one year prior to the District coming under the jurisdiction of the Civil Service Act. They were therefore reclassified as "provisional pending open competitive procedures." The Board specifically determined that Tavani's appeal was not out of time.
Since Nardello, Dunn and Lafferty had not filed for the competitive examinations, the Merit System Board determined that they should be afforded an opportunity to take make-up examinations for their respective positions.*fn1 Dunn and Lafferty still serve in the paid positions as provisional employees, with the balance of the certification process stayed until the decision on this appeal.*fn2 ...