Melchionne v. City of Newark

• Citation: 158 A.2d 411,60 N.J.Super. 104
• Decision Date: 29 February 1960
• Docket Number: No. A--225,A--225
• Parties: Luke MELCHIONNE et al., Appellants, v. CITY OF NEWARK, etc., et al., Respondents.
• Court: New Jersey Superior Court – Appellate Division

Page 104

60 N.J.Super. 104

158 A.2d 411

Luke MELCHIONNE et al., Appellants, v. CITY OF NEWARK, etc., et al., Respondents.

No. A--225.

Superior Court of New Jersey

Appellate Division.

Argued Nov. 23, 1959.

Decided Feb. 29, 1960.

Benjamin H. Chodash, Jersey City, argued the cause for appellants (Krieger & Chodash and Leon S. Wolk, Jersey City, attorneys).

William L. Boyan, Deputy Atty. Gen., argued the cause for respondent Department of Civil Service (David D. Furman, Atty. Gen., attorney).

Thomas M. Kane, Newark, argued the cause for respondent City of Newark (Vincent P. Torppey, Newark, attorney).

Before Judges GOLDMANN, CONFORD and FREUND.

The opinion of the court was delivered by

CONFORD, J.A.D.

Plaintiffs, nine employees of the City of Newark, appeal from a determination of the Civil Service Commission affirming the validity of the city's action in summarily 'downgrading' them from their positions as 'foreman parks and trees' in the Department of Public Works, allocated in the competitive division of the classified civil service, to positions as 'laborer-driver' in the same department at a lower salary, these being in the labor division of the service. The city's justification for this action was that an earlier transfer of these plaintiffs out of the labor division, in which they unquestionably had permanent status, into the competitive division, was contrary both to those provisions of the Civil Service Act applying to local government, R.S. 11:19--1 et seq., as amended, N.J.S.A., and to the rules adopted by the Civil Service Commission in implementation of the act. Hence it was impossible for plaintiffs to have acquired permanent status as park and tree foremen; and since their status in those positions was consequently only temporary, they acquired no tenure rights, and the city was at liberty summarily to return them to their permanent positions in the labor division. The Commission agreed with this viewpoint.

It is clear that if these plaintiffs never acquired permanent status during their five years of occupancy of the park foreman positions, their summary removal therefrom was within the city's administrative judgment and discretion. See Barringer v. Miele, 6 N.J. 139, 77 A.2d 895 (1951); Bertone v. Sullivan, 12 N.J.Super. 330, 79 A.2d 685 (App.Div.1951); Adams v. Atlantic City, 26 N.J.Misc. 259, 262--263, 59 A.2d 825 (Sup.Ct.1948); Shalvoy v. Johnson, 84 N.J.L. 547, 87 A. 471 (Sup.Ct.1913). See also Civil Service Rule 47, implementing R.S. 11:22--14 and 15, N.J.S.A. If, however, they did secure permanent status in the competitive division of the service they were entitled to retain the foreman positions unless removed therefrom for Bona fide reasons of economy. This is conceded both by city and the Commission.

Determination of the status of these plaintiffs at the time of the removal here complained of requires detailed review of a series of municipal and commission administrative actions which are attended by some confusion on the record before us. All nine plaintiffs were originally employed by the city during the 1920's as park maintenance laborers in the then Department of Parks and Public Property. These employments, which were designated as permanent, were in the labor division of the classified civil service for which no competitive examination is necessary. N.J.S.A. 11:22--4; R.S. 11:22--48, N.J.S.A. None of these jobs had ever been designated 'laborer-driver,' to which position the city now attempts to 'return' them. They continued to hold these jobs until 1948, when the city, by ordinance, created the positions of foreman-laborer in the shade tree bureau of the department of parks and public works, to which positions in the competitive division all nine plaintiffs were duly appointed at salaries ranging from $2,780 to $3,300, representing annual increases for these people ranging between $310 and $540. These appointments were held by the Civil Service Commission to have been invalid, and plaintiffs do not dispute this finding.

In 1950 the city hired Dr. Charles Messick as a consultant for the purpose of preparing a complete reclassification plan of all the municipal employees. The present status of that plan is indeterminate; it apparently has not yet been finally adopted and approved in its entirety; the administrative staff of the civil service department was still working on it at the time the hearings here under appeal were concluded. Nevertheless, portions of it have from time to time since 1951 been acted upon by both the municipality and the department.

In January 1951 each of the plaintiffs received a notice from the Newark Committee on Position Classification and Salary Standards informing him that according to the recommendation of Dr. Messick it was proposed that his title be changed from 'Foreman-Laborer' to 'Park and Tree Foreman' and his salary be increased to a range of $3,480 to $4,020, these proposals 'subject to the rules and regulations of the Civil Service Department and the statutes.' The notice gave no indication of any proposed change of duties from those performed under the foreman-laborer job title, those having been specified in the 1948 ordinance referred to. (There is some confusion regarding duties. Those of foreman-laborer were the same as for park and tree foreman, but different from the laborer-driver duties. But these men had not been laborer-drivers--while in the labor division they had all done parks and trees maintenance work exclusively--work of the type presently included within the parks and trees foreman duties.)

Another ordinance was adopted by the city in 1952 creating permanent positions in various divisions of the department of parks and public works, including the shade tree bureau. One of the positions so created was that of 'Foreman, Parks and Trees' with an annual salary range conforming closely to that set out in the 1951 notice to plaintiffs ($3,500--$4,000). By amendment of the ordinance in October 1953 the maximum salary was increased to $4,500, and by resolution passed shortly thereafter the nine plaintiffs were all appointed to that position. On November 17, 1953 the Civil Service Commission voted to approve the ordinance and resolution, effectuating its approval of the positions thereby reclassified and the transfers made thereto, and also to approve a statement of administrative procedures and policies governing the city's reclassification program. This statement included a provision that:

'* * * Incumbents in positions with permanent status in the non-competitive or labor division as of _ _ and who were allocated to other positions now in the competitive division will be subject to further investigation and review and if found satisfactory will:

'1. Be permitted to retain their new title.

'2. Receive compensation within the range established for their new title.

'3. Not be entitled to promotional rights for future vacancies for positions in the competitive division and are entitled only to rights as earned in their respective positions as of _ _ in accordance with Civil Service laws, rules and regulations.

'In the event that the position held by the present incumbent becomes vacant in the future it shall be filled through regular examination procedures.

'If, after further investigations and review, the incumbent is found unsatisfactory, he will be returned to the same or comparable title which he held immediately prior to the reclassification * * *.'

In January 1954 each of the plaintiffs was informed by a letter signed by the president of the Civil Service Commission that, as of October 14, 1953, his new title was that of 'Foreman, Parks and Trees,' which position he would be entitled to keep without examination even though the Commission had ruled that the title was in the competitive division, but that he would have no right to take 'promotional examinations for higher positions in the competitive division' without first taking an 'open competitive examination to get status in the competitive division and be eligible for future promotion examinations.' At the bottom of these letters appeared the code symbol 'RAR,' defined by a 1949 Civil Service Interdepartmental Memorandum as designating

'* * * the permanent status of one who had permanent status in his position in the Non-Competitive Division or in the Labor Division which position has been placed by the Civil Service Commission in the Competitive Division. Employees with such symbolized status are not entitled to promotional rights in the Competitive Division.'

In the letter sent to one of the plaintiffs it was stated that examination was not necessary in order to maintain the new title because this was a 'lateral transfer.' One of the plaintiffs received, in response to his specific inquiry, a letter of similar tenor in March 1954 from Commission President Kelly.

At a meeting in November 1954 the Commission voted to rescind its action taken in November 1953 with respect to the Newark reclassification program. Neither the reason for the rescission nor its extent is entirely clear. Under consideration at that meeting was a staff memorandum making two recommendations: the approval of the reclassification of various positions listed on an attached schedule (which did not include plaintiffs' positions) and a rescission of the November 1953 actions in order to 'permit the actions to be handled administratively by the staff.' The minutes of that meeting recite the following:

'The administrative actions of November 17, 1953 included a memorandum of that date which was then known as Exhibit 3, and is referred to in the minutes of the Commission meeting of November 17, 1953. President Kelly explained the circumstances surrounding the recommendation, stating that a conference had been held with Mayor Carlin of Newark, and he is in agreement.'

The apparent reason for the rescission was the objection by city employees to the wholesale adoption by the ...