Keegan v. Gilfert

• Decision Date: 27 January 1953
• Docket Number: No. A--636,A--636
• Citation: 24 N.J.Super. 337,94 A.2d 519
• Parties: KEEGAN v. GILFERT et al.
• Court: New Jersey Superior Court — Appellate Division

Page 337

24 N.J.Super. 337

94 A.2d 519

KEEGAN v. GILFERT et al.

No. A--636.

Superior Court of New Jersey

Appellate Division.

Argued Dec. 22, 1952.

Decided Jan. 27, 1953.

Raymond Chasan, Jersey City, for appellant.

John W. Griggs, Deputy Atty. Gen., for respondent (Theodore D. Parsons, Atty. Gen. of New Jersey, attorney).

Before Judges EASTWOOD, GOLDMANN and FRANCIS.

The opinion of the court was delivered by

GOLDMANN, J.A.D.

Appellant Keegan, a disabled war veteran, ranked first in a competitive examination conducted by the Department of Civil Service for the position of naturalization clerk for Hudson County. Despite that fact, one Mary M. Carty, ranking fifteenth on the list, was certified and appointed under circumstances hereinafter set forth. Keegan appealed to the Department from the certification and appointment and requested a hearing. The Department rejected the appeal by a letter decision, termed a 'Conclusion and Determination,' without argument or the taking of testimony. Keegan appeals pursuant to Rule 3:81--8.

It would appear that the county clerk's office in Hudson County has for many years investigated persons making applicable for citizenship. Regular employees of the county clerk interviewed and assisted aliens in their attempts to become citizens. At some time prior to September 16, 1949, the county clerk created the position of 'Special Investigator' and on that date appointed 'May' M. Carty thereto at an annual salary of $4,000 as a permanent and fulltime employee. The 'Personnel Action Form' filed with the Department of Civil Service by the deputy county clerk as appointing authority described the individual tasks to be performed by the appointee as follows:

'Investigating persons making application for citizenship; filing of business names wherein a business is conducted under an assumed name and Veterans Licenses for peddling, hawking and vending of merchandise in Hudson County, N.J.

'Familiarizing ones self with the functions and duties required of one serving in the Naturalization Bureau also serving as a supervisor in the Record Room where many papers are asked for each day and seeing to it that the papers are not removed and that they are returned to their proper places.

'Will be expected to gain a knowledge of all the functions of the County Clerk's Office and when sickness or any other reason may happen to anyone connected with the office, to fill in such position.'

The tasks were clearly those theretofore carried on by regular employees of the county clerk's office. The only qualifications for the position were: 'Desirable age: Over 30 years. Years of experience: Five years.' There was no indication that a man or a woman would be better qualified or more desirable for the position.

On June 1, 1950, the Department of Civil Service approved the 'temporary appointment' of Miss Carty 'to the position of naturalization clerk, pending an open competitive examination.' Just how this new title originated is not clear. On September 4, 1951, the Department of Civil Service in its printed bulletin of forthcoming open competitive examinations announced 'Naturalization Clerk (C34)

'Salary $4000 per annum.

'Open to male and female citizens, 12 months resident in Hudson County. 'Definition:

'Under direction, does specialized clerical work; investigates persons making application for citizenship; is responsible for a file for licensing for peddling, hawking and vending of merchandise; assists in carrying out the function of the Naturalization Bureau; supervises a Record Room where papers filed with the County Clerk are kept; does related work as required. 'Requirements:

'1. Formal education or other education of training showing attainment of the level represented by graduation from high school.

'2. Three years of experience in work involving the handling of highly technical clerical work.

'3. Freedom from physical defects which would prevent efficient performance of the duties of the position.

'Examination Weights: Education and Experience: 2; Written Test: 5; Oral Test: 3.'

Here, again, it would appear that the prescribed duties were those that had been regularly performed by employees of the county clerk's office. There was no requirement of a particular sex; on the contrary, the position was expressly 'Open to male and female citizens, * * *.' The duties generally were those of the position to which Miss Carty had temporarily been appointed.

The written and oral parts of the examination were held on November 2 and December 7, 1951, respectively. On January 28, 1952, two days before the list of eligible applicants was made public by the Department of Civil Service, the County Clerk of Hudson County wrote the Newark office of the Civil Service Commission stating that he 'would suggest' that only the names of women be certified as eligible for appointment. The reason given was that:

'* * * In view of the fact that we have a great many women who come in to discuss their situations, I am firmly of the opinion that they would much prefer to discuss it with a woman and, I think that a woman would be more qualified because she would be more patient and understanding.'

The eligible roster was promulgated January 30, 1952. It revealed that of 97 applicants, 69 had taken the examination and only 20 passed. Of the latter, 13 were veterans, and Keegan headed the list. His written score was 81.000, oral score 82.500, experience or seniority score 81.000, and final average 81.450. Miss Carty had a written score of 70.000, oral score of 88.125, experience or seniority score of 93.000, and final average of 80.038. Her written score was the lowest on the roster, and the lowest possible passing score. She achieved her general average only by virtue of scoring 93.000 for experience or seniority, the highest on the list. This score was unquestionably the fruit of her 'temporary appointment' of more than two years. (See R.S. 11:22--15, N.J.S.A., as to the duration of temporary employments.)

On January 30, 1952, the Civil Service Commission certified the names of the three highest women for appointment. They ranked 9th, 14th and 15th on the roster. Miss Carty's name was third on this list; on March 13, 1952, the county clerk reported for appointment to the Department of Civil Service.

Appellant did not know of the letter sent by the county clerk to the Civil Service Commission on January 28, 1952, nor of the Commission's determination to certify only female applicants. On April 25, 1952, Keegan, through his attorney, notified the Department of Civil Service of his appeal and requested an opportunity to be heard. In its letter 'Conclusion and Determination' rejecting the appeal the Civil Service Commission stated that it had made its certification on the basis of the county clerk's request of January 28 preceding. After referring to R.S. 11:22--17, N.J.S.A. and Rule 42 of the Civil Service Rules, the letter stated:

'It is the feeling of this Commission that the appointing authority acted within the purview of the statute in this particular case and if there is a question as to the legality of the statute this Commission is not the tribunal to rule and substitute its judgment for the Legislature.'

The county clerk who, as appointing authority, created the situation complained of, does not defend the appeal. Instead, he has permitted the burden of justifying the certification and appointment to fall entirely upon the Department of Civil Service.

Appellant claims that the veterans' preference laws control in the circumstances, and that under N.J.S.A. 11:27--3 and 11:27--4 the Department was obliged to certify his name, and the county clerk to appoint him. In Bergen County v. Civil Service Commission, 137 N.J.L. 688, 691, 61 A.2d 256 (E. & A.1948), the former Court of Errors and Appeals held that the provisions of those statutes were mandatory. Unless R.S. 11:22--17, N.J.S.A. or Rule 42 of the Civil Service Rules interposes an overriding consideration, appellant must prevail.

Rule 42 provides in part:

'* * * If the duties and responsibilities of the vacant position and the conditions under which the work is to be done are such as require an employee of a particular sex the chief examiner and secretary shall cause to be certified the names of eligibles of the sex required. * * *'

Although the Department's 'Conclusion and Determination' quotes this rule, the decision does not purport to rely upon it. There is no indication that the chief examiner and secretary on his own motion limited the certification to women. Nor did he make any finding that the duties and responsibilities of the naturalization clerk and the conditions under which the work was to be done were 'such as require an employee of a particular sex.' The Department expressly based its decision on the county clerk's request and on R.S. 11:22--17, N.J.S.A., which provides:

'A candidate, other than a veteran as defined in section 11:27--1 of this title, who has been certified three times by the (civil service) commission and not accepted by an appointing authority, shall not again be certified to him, except at the request of such appointing authority.

'In making the certification sex shall be disregarded, except when a statute, the rules of the commission or The appointing authority shall specify a particular sex.' (Italics ours.)

The language of the latter paragraph is almost exactly that of the original (Civil Service Act (L.1908, c. 156, sec. 21). The next of the first paragraph is taken from the same source, except for the words 'other than a veteran as defined in section 11:27--1 of this title.' This clause first appeared in its present setting in the 1932 amendment to section 21 of ...