Leary, Matter of

• Decision Date: 28 September 1981
• Citation: 180 N.J.Super. 557,435 A.2d 1186
• Parties: In the Matter of Charles A. LEARY.
• Court: New Jersey Superior Court — Appellate Division

Page 557

180 N.J.Super. 557

435 A.2d 1186

In the Matter of Charles A. LEARY.

Superior Court of New Jersey, Appellate Division.

Submitted Sept. 15, 1981.

Decided Sept. 28, 1981.

Frank P. Trocino, City Atty., for appellant City of Elizabeth Police Dept. (Raymond T. Bolanowski, Asst. City Atty., on the brief).

James R. Zazzali, Atty. Gen., for respondent Civil Service Com'n (John J. Degnan, former Atty. Gen.; Andrea M. Silkowitz, Deputy Atty. Gen., of counsel; Janet Share Zatz, Deputy Atty. Gen., on the brief).

Before Judges MATTHEWS, PRESSLER and PETRELLA.

The opinion of the court was delivered by

PRESSLER, J. A. D.

The issue raised by this appeal involves the construction of N.J.S.A. 40A:14-123.1a(a), the most recent legislative effort to accommodate the competing interests involved in police residency requirements. The specific problem before us is to determine the operative date of residency which, in a police department subject to Civil Service, will qualify an application for the appointment preference the statute authorizes.

By way of brief historical background, the Legislature had, until 1972, required, subject to stated limited exceptions, that police officers be residents of the municipality by which they were employed as a condition both of initial appointment and continued service. See N.J.S.A. 40:47-3 and 40:47-5, repealed in 1971 by N.J.S.A. 40A:14-176 and readopted as, respectively, N.J.S.A. 40A:14-122 and 40A:14-128. See, also, generally, as to the pre-1972 law, Kennedy v. Newark, 29 N.J. 178, 148 A.2d 473 (1959); Mercadante v. Paterson, 111 N.J.Super. 35, 266 A.2d 611 (Ch. Div. 1970), aff'd o. b. 58 N.J. 112, 275 A.2d 440 (1971). Cf. Abrahams v. Civil Service Comm., 65 N.J. 61, 319 A. 483 (1974). And see Comment, 28 Rutg. L. Rev. 428 (1975).

In 1971 and 1972 the Legislature significantly altered its longstanding commitment to municipal residency requirements for police officers by the adoption of two pieces of legislation, L. 1971, c. 443 and L. 1972, c. 3, both effective in February 1972. The first of these, by §§ 4 and 5, respectively, deleted the local residency condition for initial appointment theretofore required by N.J.S.A. 40A:14-122 and the continued residency requirement theretofore required by N.J.S.A. 40A:14-128. The second of these acts, codified in relevant part as N.J.S.A. 40A:14-9.1 to 9.7, inclusive, and 40A:14-122.1 to 122.8, inclusive, constituted a more comprehensive approach to the residency situation. The essential scheme of the 1972 legislation was to maintain the 1971 decision to eliminate residency as a requirement for both appointment and continued service. N.J.S.A. 40A:14-9.1 and 9.7; N.J.S.A. 40A:14-122.1 and 122.7. The Legislature did, nevertheless, respond in a limited manner to the municipal perception of the desirability of service on the local police force by residents. The nature of this response was the creation of an appointment and promotional preference for residents having the identical qualifications as nonresidents. Identical qualification was, moreover, defined as the same average score on entrance and promotional tests in communities governed by Civil Service, and in those communities not under Civil Service which nevertheless, use merit testing for entry and promotion. See N.J.S.A. 40A:14-9.3 to 9.6, inclusive, and N.J.S.A. 40A:14-122.3 to 122.6, inclusive. See, generally, Trainor v. Newark, 145 N.J.Super. 466, 473-477, 368 A.2d 381 (App.Div.1976), supplemental opinion 148 N.J.Super. 434, 372 A.2d 1132 (App.Div.1977), certif. den. 74 N.J. 255, 377 A. 661 (1977).

Evidently regarding the limited preference for appointment of residents afforded by the 1972 act as inadequately accommodating the legitimate concerns of the appointing municipality, the Legislature substantially expanded the scope of that preference by its 1976 adoption of N.J.S.A. 40A:14-123.1a, the statute here in controversy. The general plan of the statute is to eliminate any promotional preference based on residency but to permit municipalities to classify applicants' initial appointment to police officer positions into four preference classes and to make its appointments from among the eligible candidates of each higher preference class before having to consider the eligible candidates within the next lower preference class. The classes, in order of preference, are municipal residents, other residents of the county, other residents of the State, and all others. The specific provision of N.J.S.A. 40A:14-123.1a(a) is as follows:

In any municipality of this State, before any person shall be appointed as a member of the police department and force, the appointing authority may classify all the duly qualified applicants for the position or positions to be filled in the following classes:

I. Residents of the municipality.

II. Other residents of the county in which the municipality is situate.

III. Other residents of the State.

IV. All other qualified applicants.

Within each such classification duly qualified applicants who are veterans shall be accorded all such veterans' preferences as are provided by law. Persons discharged from the service within 6 months prior to making application to such municipality, who fulfill the requirements of N.J.S. 40A:14-10.1, and who, thereby, are entitled to appointment notwithstanding their failure to meet the New Jersey residency requirement at the time of their initial application, shall be placed in Class III.

Subsection (b) of the statute goes on to provide that

In any municipality which classifies qualified applicants pursuant to subsection a. of this section, the appointing authority shall first appoint all those in Class I and then those in each succeeding class in the order above listed, and shall appoint a person or persons in any such class only to a vacancy or vacancies remaining after all qualified applicants in the preceding class or classes have been appointed or have declined an offer of appointment.

With respect to municipalities governed by Civil Service, subsection (c) of the statute provides as follows:

In any such municipality operating under the provisions of Title II of the Revised Statutes, the classes of qualified applicants defined in subsection a. of this section shall be considered as separate and successive lists of eligibles, and the Civil Service Commission shall, when requested to certify eligibles for positions specified in this section, make such certifications from said classes separately and successively, and shall certify no persons from any such class until all persons in the preceding class or classes have been appointed or have declined offers of appointment.

The narrow but novel and important question projected by this appeal is whether an applicant for appointment to a municipal police force governed by Civil Service is entitled to Class I preference if he was a resident of the municipality on the closing date of the entrance examination but moved out of the municipality prior to the date of his appointment. The Civil Service Commission answered this question affirmatively, and we agree.

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