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In re Dreyer

December 19, 2002

IN THE MATTER OF RICHARD DREYER, II, AND JAMES HAMMOND, FIREFIGHTERS


On appeal from a Final Administrative Decision of the Merit System Board, 2001- 1187.

Before Judges Stern, Coburn and Alley.

The opinion of the court was delivered by: Coburn, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 3, 2002

This case concerns the appointment of firefighters to a paid fire department in a municipality that also has a volunteer fire company or force. Statutory preferences for appointment to the paid department are granted to members of such a municipality's volunteer fire company. The question to be resolved is the precise nature of the preferences.

The case comes to us on appeal from a determination of the Merit System Board ("Board"). Our task is to review the Board's interpretation of the applicable legislation. Since we believe the Board's interpretation is plainly unreasonable, we reverse.

The dispute arose after a 1994 civil service examination for the appointment of paid firefighters in the City of Asbury Park. The individual parties all satisfy the statutory qualifications for appointment. Appellants, James Hammond and Richard Dreyer, II, who were not members of Asbury Park's volunteer fire company, placed substantially higher on the appointment list than Garrett M. Giberson, who had served as a volunteer firefighter in the city since 1991. All three were appointed, but Giberson, who placed thirty-fourth, was given seniority over Hammond and Dreyer, who placed third and fifth, respectively.

Although Hammond and Dreyer are only concerned with seniority, the importance of which is not denied by Asbury Park or the Board, we recognize that our resolution of this case will also adversely affect the opportunity of volunteer firefighters to gain appointment to their municipality's paid fire companies. Our interpretation of the legislation, however, does not eliminate entirely a volunteer's advantage; rather, it enforces the preferences granted to volunteers by the Legislature in a manner consistent with the goals of our civil service laws and Article VII, § 1, ¶ 2 of the New Jersey Constitution.

The preferences, originally granted by L. 1938, c. 131, and later reworded without substantial change by L. 1971, c. 197, § 1, are now codified in N.J.S.A. 40A:14-42 through 14-45, which read as follows:

In any municipality where there is a volunteer fire company or force, maintained and controlled by the municipality, having no paid fireman and thereafter a paid position therein is created or established by the governing body of said municipality, such position shall be filled by a member of the volunteer fire company or force who shall have served as an active fireman for at least 2 years next preceding said appointment or by an exempt fireman of the company or force. If no such member or exempt fireman is available for such appointment, the appointment may be made to any qualified person. Said appointee shall not be under 21 or over 40 years of age at the time of the appointment. [N.J.S.A. 40A:14-42 (emphasis added).]

In any municipality where there is a volunteer fire company or force, maintained and controlled by the municipality, and the governing body of the municipality, by ordinance, shall provide for the establishment of a paid fire department, the appointments thereto shall be made from the members of the volunteer fire company or force who shall have served as active firemen for at least 2 years next preceding said appointment or from among the exempt firemen of the company or force. If no such member or exempt fireman is available for such appointment, any qualified person may be appointed thereto. Said appointees shall not be under 21 or over 40 years of age at the time of the appointment. [N.J.S.A. 40A:14-43 (emphasis added).]

In any municipality where there is a volunteer fire company or force, maintained and controlled by the municipality and a part-paid fire department composed of both paid and volunteer firemen, any appointment to such part-paid fire department shall be made from the members of the volunteer fire company or force, who shall have served as active firemen for at least 2 years next preceding such appointment or from among the exempt firemen of the company or force. If no such member or exempt fireman is available for such appointment, any qualified person may be appointed thereto. Said appointees shall not be under 21 or over 40 years of age at the time of the appointment. [N.J.S.A. 40A:14-44 (emphasis added).]

In any municipality where an examination is scheduled to determine appointments to the paid or part-paid fire department and force, any qualified fireman having served in the volunteer fire company or force of the municipality for at least 2 years next preceding such appointment shall be entitled, in addition to his earned rating, to service credits of not less than 3 nor more than 10 points as may be determined by the governing body of the municipality or the authority in charge. Said appointee shall be over 21 but not more than 40 years of age at the time of the appointment.

Nothing herein contained shall establish a preference over a paid fireman temporarily dismissed or on leave of absence for reasons of economy, or the appointment of a paid fireman to a superior position at the time of promotion in said ...


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