Jersey City v. Department of Civil Service, A--15

• Decision Date: 15 July 1959
• Docket Number: No. A--15,A--15
• Citation: 57 N.J.Super. 13,153 A.2d 757
• Parties: JERSEY CITY, a municipal corporation of the State of New Jersey, and Andrew G. Sapienza, Plaintiffs-Appellants, v. DEPARTMENT OF CIVIL SERVICE of the State of New Jersey and Isabell Churlin Spence, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 13

57 N.J.Super. 13

153 A.2d 757

JERSEY CITY, a municipal corporation of the State of New Jersey, and Andrew G. Sapienza, Plaintiffs-Appellants, v. DEPARTMENT OF CIVIL SERVICE of the State of New Jersey and Isabell Churlin Spence, Defendants-Respondents.

No. A--15.

Superior Court of New Jersey

Appellate Division.

Argued March 2, 1959.

Decided July 15, 1959.

Louis P. Caroselli, Asst. Corp. Counsel, Jersey City, argued the cause for appellants (Ezra L. Nolan, Corp. Counsel, Jersey City, attorney; Louis P. Caroselli on the brief).

Theodore I. Botter, Dep. Atty. Gen., argued the cause for respondent Department of Civil Service (David D. Furman, Atty. Gen., attorney).

Max A. Boxer, West New York, argued the cause for respondent Isabell Churlin Spence.

Before Judges GOLDMANN, CONFORD and FREUND.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Plaintiffs City of Jersey City and Andrew G. Sapienza appeal from a series of orders of the Department of Civil Service (Department) culminating in the reclassification of a position held by Sapienza from hospital administrator to administrative clerk, certifying Mrs. Isabell Spence to that position in place of Sapienza, and denying plaintiffs a hearing on the issues involved.

Mrs. Spence qualified by Civil Service examination for the position of administrative secretary in the Jersey City Department of Revenue and Finance and was appointed to that position in 1952. She continued in the position until June 1957, at which time it was eliminated (allegedly for economy reasons) and she was demoted to administrative clerk. She thereupon appealed to the Department of Civil Service claiming that her demotion was politically motivated. While the appeal was pending the city further demoted her to senior clerk-stenographer, and shortly thereafter removed her from the classified service altogether. These actions were based on an opinion given by counsel for Jersey City that the ordinance purportedly creating the position of administrative secretary was legally ineffective for the purpose, so that Mrs. Spence had not held a legally existent position and consequently had no civil service status.

The Department upheld the city's elimination of the post of administrative secretary, but ordered Mrs. Spence restored to the position of administrative clerk. It refused to consider the legality of her original oppointment, holding that the issue could only be raised by directly attacking the validity of the ordinance in the courts.

The Civil Service decision was rendered April 15, 1958. There was no further appeal by either side. However, Mrs. Spence was never reinstated as administrative clerk in the Revenue and Finance Department, for Jersey City purported to abolish that position also. Her appeal from this action was still pending when subsequent events rendered the issue moot, at least for the moment.

On July 14, 1958 Jersey City appointed Sapienza as a replacement for one Romanowski in a position it designated as hospital administrator. (The position of hospital administrator is considered by the Department to be 'the highest occupational level in a hospital.') On the same day the city requested the Department to approve Sapienza's appointment as 'Temporary--Pending Civil Service Examination.' The Department, however, determined that the position to which Jersey City sought to appoint Sapienza was not one involving the extensive responsibilities and broad discretion attendant upon the position of hospital administrator, but rather was 'on a clerical-semi-professional administrative level.' It concluded that the duties involved in Sapienza's position were actually those of administrative clerk, and accordingly reclassified the position labelled by the city as 'hospital administrator' to 'administrative clerk.'

The action so taken was based on an intra-departmental memorandum which stated that Sapienza lacked the education and experience required to perform the duties of a hospital administrator, and that (in the writer's opinion) it was 'inconceivable to me that the duties being performed by Mr. Sapienza could be those of a Hospital Administrator.' The writer therefore concluded that the position was, as noted above, 'on a clerical-semi-professional level.' This conclusion obviously stemmed from his personal evaluation of the tasks Sapienza performed--a determination which, in turn, was influenced to some extent by the writer's opinion of Sapienza's education and experience. We note in passing that Sapienza had attended the Rutgers University School of Business for three years.

After reclassifying the position the Department temporarily certified Sapienza as administrative clerk. The following day, however, it permanently certified Mrs. Spence to the latter position from the reemployment list for administrative secretary, thereby replacing Sapienza. As already noted, Mrs. Spence had not yet--despite the Department's earlier order--been restored to the position of administrative clerk in the Jersey City Revenue and Finance Department. Consequently, she was still on the reemployment list for administrative secretary (the position she had held for five years and which had been abolished for economy reasons), and thereby had a prior right to any vacancy in a similar position. N.J.S.A. 11:22--10.1 and 10.2. The Department of Civil Service determined that this reemployment list was suitable to fill an opening in the lower position of administrative clerk.

Jersey City protested this action in a letter to the Department. It argued that the duties of the position it had designated as 'hospital administrator' were in no way similar to those of administrative clerk. The former position, it contended, was one of high responsibility and wide discretion, involving complete supervision over 2,800 hospital employees, whereas an administrative clerk exercised comparatively little discretion and authority. It also repeated its claim that Mrs. Spence had no civil service status, and thus no reemployment rights, because the position she purportedly had held was legally non-existent. Further, said the city, if she did have reemployment rights, they did not extend beyond the Revenue and Finance Department. Although, as we have remarked, Jersey City's original application envisioned a competitive examination before a hospital director was permanently appointed, it now maintained that the position was one of 'head of a department,' and should therefore be unclassified. The city requested a hearing on all issues.

The Department denied the request because 'there are no grounds for * * * appeal.' This decision was apparently based on another intra-departmental memorandum in which the writer informed the Director of Executive Services that Sapienza did not, nor did his predecessor Romanowski, 'perform the duties normally assigned to a Hospital Administrator.' The medical director, it was said, is the functional and titular head of the hospital, whereas his executive assistant operated 'in a supervisory capacity in non-professional areas.' The memorandum went on to state that from the writer's own knowledge the duties performed by the executive assistant are identical with those performed first by Romanowski and now by Sapienza. These are duties of the same kind as Mrs. Spence had performed as administrative secretary in the Revenue and Finance Department. Thus, since Sapienza performed only duties similar to those of an administrative clerk, the position to which he had temporarily been appointed was held to be substantially identical with that of administrative clerk.

The memorandum also pointed out that the Department had in 1951 denied a request to place the executive assistant in the unclassified service as a department head. Since Sapienza was performing the same duties he, too, should remain in the classified service. The city's restrictive interpretation of Mrs. Spence's statutory reemployment rights was also rejected.

We deal with plaintiffs' contention that the position of administrative secretary had no legal existence, that Mrs. Spence therefore acquired no civil service status by performing the duties of that position for five years, and thus she has no reemployment rights.

We shall first consider the intent and effect of the ordinance which purported to create the position of administrative secretary in the Jersey City Revenue and Finance Department; next, assuming the ordinance was not legally effective to create this position, was Mrs. Spence nonetheless a De facto holder of a position; and finally, whether as a De facto holder of a position she acquired the reemployment rights assured in N.J.S.A. 11:22--10.1 and 10.2.

I

In 1951 the disorganized state of Jersey City's personnel system became a cause of concern to the city commissioners. Ad hoc appointments, without a continued and systematized updating of the original civil service classifications, had over the years wrought chaos. The legal status of many employees was in doubt, lines of command were tangled, and the relationship between positions was unclear. To alleviate the situation the Department of Civil Service was requested to undertake a comprehensive reexamination and reclassification of the positions of Jersey City's 5,425 employees.

The Department, with the full cooperation of city officials, thereupon made a thorough study of the duties performed by each employee and the needs of each municipal department. In December 1950 it presented its City of Jersey City Reclassification Survey to the board of commissioners 'in form appropriate for adoption * * *.' The survey contained a description of each newly designated position, the number and names of the employees who would fill the positions (based, of course, on the duties already being performed by them), and the salary ranges of the positions. Isabell Churlin (now Isabell Churlin Spence) was designated for one of the two positions of...