Gallagher v. Mayor and Council of Town of Irvington

• Decision Date: 09 March 1982
• Citation: 184 N.J.Super. 225,445 A.2d 477
• Parties: Joseph P. GALLAGHER, Plaintiff, v. MAYOR AND COUNCIL OF the TOWN OF IRVINGTON, Defendant.
• Court: New Jersey Superior Court

Page 225

184 N.J.Super. 225

445 A.2d 477

Joseph P. GALLAGHER, Plaintiff, v. MAYOR AND COUNCIL OF the TOWN OF IRVINGTON, Defendant.

Superior Court of New Jersey, Law Division Essex County.

Decided March 9, 1982.

Susan S. Singer and Henry Furst, Newark, for plaintiff (Brown, Brown & Furst, Newark, attorneys).

Henry E. Rzemieniewski, Somerville, for defendant Mayor of the Town of Irvington.

Samuel J. Zucker, Newark, for Municipal Council of the Town of Irvington.

William E. Graves, Irvington, for defendant-intervenor (Petit-Clair & Graves, Irvington, attorneys).

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

This case presents novel questions pertaining to the construction of N.J.S.A. 40A:14-9.4. That statute confers a preference with respect to a resident who achieves "the same final average score" as a nonresident in a promotional examination for appointment to a position in a municipal fire department. More specifically, the statute provides that a resident must be appointed in the event his test score equals that of a nonresident. At issue is whether dual residency satisfies the statutory requisite. Also in dispute is whether a resident whose test score exceeds that of a nonresident is entitled to a preference under the statute.

Plaintiff instituted this action in lieu of prerogative writs seeking to vacate the appointment of Thomas McGotty as fire chief in the Town of Irvington. Due to McGotty's obvious interest in the outcome of these proceedings, his application for intervention was granted. See R. 4:33-1 and 2. Except with respect to questions regarding defendant-intervenor's residency, the facts are not in dispute and are essentially a matter of public record. Plaintiff has resided in Irvington for most of his life and has served in a variety of capacities in that municipality's fire department for about 24 years. In the latter part of 1980 plaintiff, McGotty and three other individuals were administered a Civil Service promotional examination for the position of fire chief. It is uncontroverted that plaintiff's test score substantially surpassed that of all other eligible individuals. McGotty ranked third in the examination. On March 23, 1981 the mayor appointed McGotty to the position of fire chief. Shortly thereafter the governing body confirmed the appointment. This action followed.

The facts pertaining to defendant-intervenor's residence were hotly contested. The record reveals that he and his wife own a single-family home in Edison. Two of the McGottys' children also reside in the dwelling; a third lives at the college she is presently attending. The McGottys' federal income tax returns list their home address as Edison. Further, ownership registrations with respect to defendant-intervenor's two automobiles bear that address. The McGottys have joint checking and savings accounts listing Edison as their residence. In point of fact, the veterans' preference claim form which accompanied McGotty's application for the position of fire chief and which was submitted to the Department of Civil Service sets forth the Edison address as his residence. Several other documents, including fire department "declaration of residence" forms, personnel roster lists, payroll sheets and driver's licenses all bore the Edison address until shortly after defendant-intervenor's appointment. At that time these documents were altered at McGotty's request to reflect an Irvington address.

Although McGotty testified that he resided with his mother and sister on a part-time basis in a two-family house in Irvington, the evidence presented in that regard was extremely tenuous. It is undisputed that he does not pay rent or contribute to the financial upkeep of the house. He is not listed as the owner in the deed. To be sure, defendant-intervenor occasionally sleeps overnight at the Irvington address, maintains a minimal wardrobe there and is registered to vote from that residence. Nevertheless, there are no marital difficulties between him and his wife and it is abundantly clear that his family, social and religious relationships center about Edison. In sum, the relatively few indicia of residence in Irvington existing in this case pale within the context of the overwhelming evidence presented that McGotty regards Edison as his home--the place where his family lives.

I

Although the present statutory scheme is not without its ambiguities, the legislative history is somewhat illuminating. Our statutes have long conferred discretion upon the appointing authority to select one of the three individuals achieving the highest examination scores. N.J.S.A. 11:22-16. In essence, the statutory "rule of three" authorizes the employing authority to appoint "one of the three ... certified [as] standing highest" among the candidates for the position. Id. The rule, "though effectuating a fundamental legislative concern in preserving merit standards in public employment, was not conceived of as an immutable or total bar to the application of other important criteria" in the governmental selection process. Terry v. Mercer Cty. Freeholder Bd., 86 N.J. 141, 150, 430 A.2d 194 (1981). The discretion conferred has been limited in cases in which the Legislature has granted preferences. ¹

Of course, questions pertaining to the applicability of preferences arise only following examination of prospective employees who qualify. Before being permitted to take the examination, applicants must satisfy various conditions. Perhaps the most controversial condition of many types of governmental employment pertains to residence. Prior to 1972 all office-holders were required to reside in the municipality in which they were employed. N.J.S.A. 40:11-1. The statutory scheme further provided that "[w]henever an officer of a municipality cease[d] to be a bona fide resident," a vacancy was to be declared. N.J.S.A. 40:46-14. In Kennedy v. Newark, 29 N.J. 178, 148 A.2d 473 (1958), our Supreme Court decided that a residence requirement for governmental employment, whether at the state, county or municipal level, was constitutional. The court concluded that the Legislature could rationally find "the public interest is advanced by residence within the political unit which provides the pay." Id. at 183, 148 A.2d 473. More specifically, residence may well "supply a stake or incentive for better performance in office or employment and as well advance the economy of the locality which yields the tax revenues." Id. at 184, 148 A.2d 473. The court further noted that residence can be relevant with respect to office-holders who may be called upon to act in emergencies. Id. In Mercadante v. Paterson, 111 N.J.Super. 35, 266 A.2d 611 (Ch.Div.1970), aff'd 58 N.J. 112, 275 A.2d 440 (1971), Justice (then Judge) Mountain held that the statutory scheme was applicable to police officers and members of municipal fire departments and, therefore, residence constituted a mandatory condition of continued employment. Significantly, the court rejected the argument that dual residency satisfied the statutory requirement. Since the legislative design was to foster the public interest as defined in Kennedy v. Newark, supra, the court found that "no casual residence was intended but rather a real and principal [one], in short, domicile." Id. at 40, 266 A.2d 611. It was held that "nothing less would create that identity with the community" the statute was designed to advance. Id. See, also, Krzewinski v. Kugler, 338 F.Supp. 492 (D.N.J.1972); Smith v. Newark, 128 N.J.Super. 417, 320 A.2d 212 (Law Div.1974), aff'd 136 N.J.Super. 107, 344 A.2d 782 (App.Div.1975).

In 1972 the Legislature enacted our present statutory scheme. N.J.S.A. 40A:14-9.1 currently provides that "[n]o municipality shall pass any ordinance, resolution ... rule or order making residency ... a condition of employment or promotion" with respect to members of the fire department. This legislative mandate is buttressed by N.J.S.A. 40A:14-9.2 which invalidates Civil Service laws making residence a condition of employment. These statutes do not totally eradicate the policy permitting municipalities to consider residence with respect to appointments and promotions. As noted previously, N.J.S.A. 40A:14-9.4 specifically addresses that question by providing a preference to a resident who achieves the "same final average score" as a nonresident.

In enacting these statutes the Legislature declared in an accompanying statement that residency requirements have "become increasingly difficult to enforce" and have reduced the pool of qualified applicants. Statement of the Judiciary Committee, Senate Bill No. 452. It is clear that the statutory scheme ultimately adopted was designed to promote merit in appointments, as evidenced by objective Civil Service test scores. The Legislature did not, however, totally discount the public policy goals enunciated in Kennedy v. Newark, supra, i.e., the incentive for better performance by virtue of the employee having a stake in the quality of life of the community in which he resides. Rather, the residence preference was designed to promote that objective. The statutory preference does not offend the goal of "guarding against considerations of politics, personal favoritism or partisanship in any form." Smith v. Newark, supra at 431, 320 A.2d 212. Rather, the statutory scheme recognizes that residency in the municipality may well promote better performance in office. Where merit is equal, residence remains an important policy consideration in promoting job performance.

II

It is against this backdrop that defendant's arguments must be considered. Defendant first contends that defendant-intervenor maintains dual residences in Edison and Irvington and, therefore, plaintiff cannot validly claim the statutory preference. This argument is grounded upon the premise that repeal of statutes requiring residence as a condition of employment constitutes a legislative rejection of judicial decisions such as ...