Lembo, Matter of

Decision Date30 June 1977
PartiesIn the Matter of the Appeal of Philip LEMBO.
CourtNew Jersey Superior Court — Appellate Division

Martin Verp, County Counsel, Paterson, for appellant Bd. of Chosen Freeholders of Passaic County (John G. Thevos, Sp. Asst. County Counsel, Paterson, on the brief).

Segreto & Segreto, Haledon, for respondent Philip Lembo (James V. Segreto, Haledon, of counsel and on the brief).

William F. Hyland, Atty. Gen., for Civil Service Com'n (Paul E. Graham, Deputy Atty. Gen., of counsel and on the statement in lieu of brief).

Before Judges FRITZ, ARD and PRESSLER.

The opinion of the court was delivered by

PRESSLER, J. A. D.

Passaic County appeals from an order of the Civil Service Commission reinstating with back pay its employee, Philip Lembo, whom it had removed for cause following a departmental hearing. The charge underlying the removal was his refusal to accept a temporary transfer to a position in a class different from that to which he was permanently assigned. The dispositive question raised by this appeal is whether or not the applicable provisions of the Civil Service Act and their implementing rules and regulations permit an employer to make such a transfer under any circumstances.

The factual background of this controversy is substantially undisputed. Passaic County, having opted by referendum to adopt the Civil Service Act, N.J.S.A. 11:1-1 et seq., is subject to subtitle 3 of Title 11, applicable to counties, municipalities and school districts (local service). Lembo had been employed by the county since 1969 as one of 10 bridge and highway construction inspectors in the Department of Public Works, of which Gaetano Farina, the county engineer, had been director since May 1973. That employment was a permanent position in the classified service. At the time Farina took over the Department there was and continued to be insufficient work for all these employees in that title, and rather than adhering to the former practice of keeping them available but unoccupied, he assigned them to "out-of-title" inspection work "catch basin inspection and debris inspection, things of that nature." As he further testified at the Civil Service Commission hearing, "We have tried to keep these people busy. Prior to that he and the rest of them were sitting around reading newspapers * * *."

The controversy here involved occurred in September 1975 as a result of the unexpected cancellation of its contract by the independent commercial firm which had been retained by the county to regularly clean and maintain the county courthouse. Although the county did employ building maintenance workers whose job title included the necessary cleaning and maintenance chores, those employees were already engaged in maintenance of the heating and electrical systems. Because of the emergency created by the contract cancellation, the freeholders instructed Farina to assign all available men in his Department to a temporary courthouse cleaning detail until alternate permanent cleaning arrangements could be made. He so assigned Lembo, among others. Lembo's initial reason for refusing the assignment was that the required hours, 3:30 to 10:30 p. m., would interfere with his bowling schedule. He thereafter refused the assignment in writing on the ground that he could not be compelled to perform "out-of-title" duties. The county then initiated the disciplinary action against Lembo which resulted in the removal and his consequent appeal therefrom to the Civil Service Commission, which ordered his reinstatement on the ground that the county was indeed without the power to make the temporary transfer. The county appeals from that order.

At the outset, it is clear that a public employer subject to the Civil Service Act is obliged to deal with its employees in a manner consistent with the applicable statutory provisions and their implementing rules. N.J.S.A. 11:19-3. That obligation extends, of course, to the matter of transfers of employees. Caldaro v. Ferber, 39 N.J. 314, 188 A.2d 576 (1963); Bergen Cty. v. Civil Service Dep't, 115 N.J.Super. 90, 278 A.2d 232 (App.Div.1971). The only provision of subtitle 3 of Title 11 (local service) dealing with transfers of permanent employees in the classified service is N.J.S.A. 11:22-8, which provides in full as follows:

A person holding an office or position in the classified service may, on his own request and with the consent of the commission, be transferred to a similar office or position in another office, department or institution. No transfer shall be made from an office or position in one class to that of another class nor to an office or position for original entrance to which there is required by this subtitle, or the rules adopted pursuant thereto, an examination involving essential tests or qualifications different from or higher than those required for original entrance to an office or position held by such person.

The correlative provision of subtitle 2 of Title 11, applicable to the state service, namely, N.J.S.A. 11:11-3, reads as follows:

The chief examiner and secretary shall provide by rule, approved by the commission, for the transfer of employees from a position in a given class to another in the same or different department, commission, board, institution or agency, and for the periodical or occasional transfer of employees for a period not to exceed six months, without regard to class or department, commission, board, institution or agency, in order to better the distribution of persons in the service or effect economies, or make available from one or more central supply pools extra stenographic, clerical, messenger or other service needed for short periods, or provide training sought by employees or required by appointing authorities. No transfer shall be made without the approval and consent of the appointing authorities from or to whose departmental working forces the transfer is proposed.

For present purposes at least, the key word in both provisions is "class," defined by N.J.S.A. 11:3-1 as

* * * a group of positions in the classified service, established under this subtitle sufficiently similar in respect to the duties, responsibilities and authority thereof, that the same title may be used to designate each position allocated to the class, that the same requirements as to education, experience, capacity, knowledge, proficiency, ability and other qualifications should be required of the incumbents, that the same tests of fitness may be used to choose qualified employees, and that the same schedule of compensation can be made to apply with equity.

There is no dispute here of the fact that the jobs of bridge and building inspector and building maintenance worker are by this definition in different classes.

The differences between the state and local service transfer provisions are immediately apparent. While both prohibit a permanent transfer from one class to another, N.J.S.A. 11:11-3 expressly permits an interclass temporary transfer for a period not to exceed six months for the reasons therein stated. N.J.S.A. 11:22-8, the local service provision, is altogether silent as to temporary transfers, whether within or without the same class. That silence has, however, been construed as not implicitly prohibiting such transfers but rather as constituting a legislative delegation to the Civil Service Commission of the authority to determine by rule promulgation the questions of whether at all and if so, in what circumstances and pursuant to what procedures, temporary transfers would be permissible. As the Supreme Court said in Caldaro v. Ferber, supra:

We find no reference to temporary transfers under subtitle 3, and likewise no implied prohibition against such transfers. Thus, the language of that section must be read in light of the Commission's rule-making power as incorporating within the term "transfer" as used therein other transfers...

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