Trainor v. City of Newark

• Citation: 137 N.J.Super. 570,350 A.2d 83
• Parties: Goldie TRAINOR et al., Plaintiffs, v. CITY OF NEWARK, Defendant.
• Decision Date: 20 November 1975
• Court: Superior Court of New Jersey

Page 570

137 N.J.Super. 570

350 A.2d 83

Goldie TRAINOR et al., Plaintiffs, v. CITY OF NEWARK, Defendant.

Superior Court of New Jersey,

Chancery Division.

Nov. 20, 1975.

Albert G. Besser, Newark, for plaintiffs (Hannoch, Weisman, Stern & Besser, Newark, attorneys).

Salvatore Perillo, Newark, for defendant (Milton A. Buck, Corp. Counsel, Newark, attorney).

John Cervase, Newark, for intervenor, Veterans Civic League of N.J.

ANTELL, J.S.C.

In this class action brought on behalf of approximately 476 nonresident employees of the City of Newark plaintiffs ask declaratory and injunctive relief relative to a local ordinance requiring that all officers and employees of the defendant city be bona fide residents therein. The action is grounded in claims of unconstitutionality under the Equal Protection Clause of the 14th Amendment to the United States Constitution and in equitable considerations arising from the city's long-standing policy of indifferent enforcement.

The ordinance is R.O. 2:14--1. It provides:

All officers and employees of the city now in the employ of or hereafter to be employed by the city are hereby required as a condition of their continued employment to have their place of abode in the city and to be bona fide residents therein except as otherwise provided by the charter. A bona fide resident, for the purpose of this section, is a person having a permanent domicile within the city and one which has not been adopted with the intention of again taking up or claiming a previous residence acquired outside of the city limits.

The director of any department or the mayor or city clerk is hereby authorized in his discretion, for good cause shown, to permit any officer or employee of the city in his respective department or office to remain in the employ of the city without complying with the provisions hereof, where:

(a) The health of any officer or employee necessitated residence outside of the city limits;

(b) The nature of the employment is such as to require residence outside of the city limits;

(c) Special circumstances exist justifying residence outside of the city limits.

Failure of any officer or employee to comply with this section shall be cause for his removal or discharge from the city service.

Included among the questions assigned for constitutional treatment is whether the ordinance can be 'uniformly applied' where policemen, firemen and other municipal officials are exempted from its application under N.J.S.A. 40A:14--122.1 and 9.1, and N.J.S.A. 40A:9--1. This is the issue specifically reserved for future consideration in Abrahams v. Civil Service Comm'n, 65 N.J. 61, 64, fn. 1, 319 A.2d 483 (1974), and particularly, the concurring opinion of Clifford, J. at 76. The chief features of the Abrahams case were its holdings that (1) the ordinance did not form an unconstitutional restraint upon the right to travel; (2) the 'special circumstances' exception contained in the ordinance was void for want of adequate standards, and (3) plaintiff employee had not sufficiently demonstrated the city's discriminatorily selective enforcement of the ordinance against her.

In urging their right to relief, in addition to the question left open by Abrahams, plaintiffs also rely upon (1) the city's refusal to apply the ordinance to employees of its municipal agencies; (2) its refusal to apply it to the officials mentioned in N.J.S.A. 40A:9--1; (3) its widespread use of independent contractors whose employees are not subject to the residency requirement, and (4) its long and continuing history of hiring and retaining nonresident employees in violation of its own ordinance.

Although some variation in the pertinent statistics will be found, depending upon the sources and interpretation of information utilized, for practical purposes they are correct, subject only to minor adjustments.

Excluding employees of the autonomous agencies such as the Parking and Housing Authorities, Library, Museum and Board of Education, the City of Newark is served by 10,677 employees, of whom 1,884 are nonresidents. Of the latter number 1,408, or 75%, are exempted from the residency requirement by reason of the police and firemen's statutory exemption and under the city's interpretation of N.J.S.A. 40A9:--1. Out of a total complement of 1935 police department employees 673, of whom 99% Are exempt, are nonresidents. Out of 1,125 fire department employees 703, of whom 99% Are exempt, are also nonresidents. Out of a total of 27 Law Department employees 13 are nonresidents, and of these 92% Are exempt under the city's reading of N.J.S.A. 40A:9--1.

At the other end of the scale, in the Recreation Department, out of 248 employees 14 are nonresidents, none of whom is exempt from the residency requirement. The same proportion is true of the departments administered under the grant programs, in which 4,844 persons are employed. The Health and Welfare Department has 479 employees, 115 of whom are nonresidents, and less than 1% Of these are exempt.

Of the total nonresident employees, including those hired by the present and past administrations, 355 personnel files were studied. There were evidently an additional 106 in existence, but at the time of the examination they were 'unavailable.' Of those studied 209, approximately 59%, contained unmistakable written evidence of the employee's nonresidence either at the time of hiring or as the result of a change of address after hiring. Although the remaining files showed no such evidence, it should be remembered that the fact of missing documents was recurrently encountered during the case.

The total number of exempt police and fire personnel number 2,683, representing approximately 25% Of all city employees. Against the following numbers of employees of the specified agencies the city also withholds enforcement measures:

                Board of Education  -  10,587
                Housing Authority   -   1,210
                Parking Authority   -      19
                Library             -     377
                Museum              -     107
                

That the present and past city administrations have at all times been fully aware that the ordinance was being regularly violated has been established with certainty. Since taking office in 1970, 67% Of the 64 nonresident appointments which the present administration alone has made involved nonexempt appointees who were nonresident at the time of appointment. This was shown by Civil Service forms and other papers placed in the file at the time of hiring. 11% Later became nonresidents. This, too, was shown by papers in their files. Although the remaining 22% Of these files contain no written evidence of nonresidency, we must again advert to the fact that it was not unusual for papers to be missing.

The fact of long-standing 'official knowledge,' Kennedy v. Newark, 29 N.J. 178, 192, 148 A.2d 473 (1959), appears in the almost tangible conviction which the evidence commands that 'everyone' knew the ordinance was being disregarded. It was shown in oral and written disclosures by job applicants when hired and in discussions with department heads and other superiors relating to changes of residence in which the department heads not only approved the moves but reassured the employees that they themselves resided outside the city. It is found in the numerous personnel papers filed at the time of hiring, change of address cards, correspondence with Civil Service authorities, and correspondence with the employees and third parties, all of which showed nonresident addresses for the employees. It is manifest in the correspondence, following the Abrahams case, exchanged by the city and the Civil Service Commission between 1971 and 1974, in which the nonresidency of the employees was called to the city's attention and the city asked to explain its 'policy (characterized as 'selective enforcement') of dismissing permanent employees for Non--Residency and hiring provisional Non--Residents' or to explain under which of the ordinance's then viable exceptions the nonresident hirings were being made--a correspondence, it should be noted, which ended with the city flatly rejecting Civil Service's authority even to question the nonresident hirings and with Civil Service abdicating all responsibility to the city for enforcing its ordinance.

Throughout every level of its administration the city has always known that its employees were living outside the municipal boundaries. Although the full extent of the delinquencies might not have been fully appreciated, the information was there to be seen and collated if someone had chosen to look. The fact of 'official knowledge' is so free of doubt that it is scarcely denied by the city, and to disbelieve its existence would require a conscious effort of will.

Enacted April 27, 1932, it appears that in the 43 years of the existence of the ordinance there has been only a single job termination for violation of its terms. This occurred in connection with a secretary in the Law Department, and the facts surrounding her dismissal are detailed in Abrahams v. Civil Service Comm'n, supra 65 N.J. at 63, 319 A.2d 483.

In 1955 the then mayor announced a grace period within which nonresident employees were required to move back into the city, and it was during this interval that a number of employees brought an action to test the validity of the ordinance. The ordinance was ultimately sustained by the Supreme Court in February 1959, Kennedy v. Newark, supra, clearing the way for enforcement. On March 9, 1959 the mayor gave notice of a further grace period until January 1, 1960, and thereafter notices were sent to 170 employees that their nonresident status violated the ordinance. Of these, between 25 and 40 were sent in error. Of the remainder some took up residence in the city between July 1960 and July 1961; some died, resigned or retired. Of those whose cases proceeded to final disciplinary hearings, 16 received notices finding them guilty of violating the ordinance. To these, however, nothing...