DOCKET NO. A-4856-13T2
Michael C. Woyce argued the cause for appellants Romary, Van Wolde, Altmann, Iacuzzo, Lenoy, Vargas and Rodriguez (Murphy & Woyce, attorneys; Mr. Woyce, on the brief). Todd A. Wigder, Deputy Attorney General, argued the cause for respondent Civil Service Commission (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Wigder, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso and O'Connor. On appeal from the Civil Service Commission, Docket No. 2013-201. Michael C. Woyce argued the cause for appellants Romary, Van Wolde, Altmann, Iacuzzo, Lenoy, Vargas and Rodriguez (Murphy & Woyce, attorneys; Mr. Woyce, on the brief). Todd A. Wigder, Deputy Attorney General, argued the cause for respondent Civil Service Commission (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Wigder, on the brief). PER CURIAM
Petitioners are seven Paterson police officers demoted in lieu of layoff as a result of a City budget crisis. They claim the City's layoff plan violated the State Constitution's requirement that appointments and promotions in the civil service be made as far as practicable on the basis of competitive examination, because the plan put seniority ahead of the officers' position on the promotional list when ranking them for demotion and reinstatement. The Civil Service Commission rejected petitioners' challenge, reasoning that the constitutional provision applies to appointments and promotions, not layoffs, and that the "tie-breaker" employed here to decide which of two officers promoted on the same day would be demoted first, total days of permanent service to the City, was not adverse to merit and fitness and advanced the broader legislative policy to determine order of layoff by continuous permanent service in the jurisdiction. We affirm.
The layoff in Paterson affected one hundred twenty-five patrol officers, twenty-eight sergeants and six lieutenants. Not one of petitioners, all of whom served in the sergeant and lieutenant ranks, was actually laid off, however. Because of their rank, all were able to "bump" a lower-ranking officer from his or her position, thereby suffering demotion but avoiding layoff.
Petitioners allege the harm to them is the loss of pay at the higher rank.
The layoff plan worked on the principle of inverse seniority at rank: the officer most recently appointed to a given rank would be the first to be laid off and the last to be rehired from a special reemployment list. To be clear, petitioners have no quarrel with that basic operating principle. They are not claiming that all officers at a given rank must be demoted in inverse order of their scores on a promotional exam. What they object to is the City's failure to look to the scores to distinguish among officers of equal rank promoted on the same day, a fairly common occurrence because police officers are often promoted on the same day following the administration of periodic promotional exams. When determining which of two officers promoted to the same rank on the same day would be demoted first, Paterson looked to the length of time each had served the City as police officers instead of to the officers' scores on the promotional exam and resulting position on the promotional list. Petitioners claim the merit and fitness clause requires using the officers' position on the promotional list as the tie-breaker in such situations.
Petitioners did not serve their notice of appeal on the fellow officers who would be potentially affected by a remedy were petitioners to prevail on this appeal. Given our disposition, we need not consider whether those persons would be necessary parties.
The Civil Service Commission disagreed. The Commission explained that N.J.S.A. 11A:8-1b and N.J.A.C. 4A:8-2.4(b) require that employees serving in police titles be laid off in inverse order of seniority, calculated by the length of continuous permanent service in the current permanent title, commonly referred to as title seniority. N.J.A.C. 4A:8-2.4(b)3 provides a mechanism for breaking ties between two or more employees in a police title having equal title seniority. The regulation provides, for example, that a disabled veteran will have priority over a veteran, and a veteran will have priority over a non-veteran. See N.J.A.C. 4A:8-2.4(h)1. The tie-breaker list also ranks jurisdictional seniority, that is, total continuous permanent service regardless of title, over the officers' placement on the promotional list. N.J.A.C. 4A:8-2.4(b)3 and 4A:8-2.4(h)1.
Petitioners did not bring their challenge to the layoff plan to the Civil Service Commission in the first instance. Instead, they filed a complaint in the Law Division alleging the plan violated the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2. The trial court granted the Commission's motion to dismiss for failure to exhaust administrative remedies and transferred the matter to the Commission pursuant to Rule 1:13-4. Petitioners appealed that decision, which we affirmed. Romary v. City of Paterson, No. A-6241-11 (App. Div. Oct. 10, 2013). The Supreme Court subsequently denied certification. Romary v. City of Paterson, 217 N.J. 287 (2014).
The Commission concluded that petitioners' layoff rights were correctly determined in accordance with legislative policy based on their service in their permanent titles and the Legislature's mandate that layoffs proceed in inverse order of continuous service as expressed in the application of the continuous service tie-breaker. It rejected petitioners' argument that the State Constitution mandates that between two officers having the same title seniority, the employee who ranked higher on the eligible list should have priority in a layoff over the officer with greater continuous permanent service, regardless of title. The Commission concluded that the merit and fitness clause, Article VII, Section 1, Paragraph 2, on which petitioners rely, by its terms applies only to appointments and promotions, not layoffs, and thus had no applicability to the matter at hand.
We agree. Petitioners have not brought to our attention any case that has ever applied the merit and fitness requirement to layoff rights, and they make no textual argument for how the clause could be extended to this case. The clause, which we have observed "merely wrote into the state charter what had for years been the keystone of New Jersey's personnel system," Bayonne v. Dougherty, 59 N.J. Super. 288, 295-96 (App. Div. 1960), appeal dismissed, 34 N.J. 240 (1961), provides in its entirety that:
Appointments and promotions in the civil service of the State, and of such political
subdivisions as may be provided by law, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive; except that preference in appointments by reason of active service in any branch of the military or naval forces of the United States in time of war may be provided by law.
[N .J. Const. art. VII, § 1, ¶ 2.]
The Court has explained that "[t]he policy underlying the merit and fitness requirement is the provision of efficient public service in state, county, and municipal government free from political control and personal favoritism." O'Malley v. Dep't of Energy, 109 N.J. 309, 313 (1987) (citation omitted). Although the 1947 Constitution includes an express endorsement of the merit system, it clearly left continued implementation of that system to the Legislature. See Bayonne, supra, 59 N.J. Super. at 295-96 (observing that the Legislature, "has through the years, by the careful process of amendment and supplementation of the Civil Service Act, adopted such provisions as policy and experience indicated were necessary, all to the end of strengthening the merit system"). With regard to layoff rights, the primary legislative design is that they be determined according to seniority, measured in police and fire titles by continuous permanent service in the current title. See N.J.S.A. 11A:8-1b.
Although petitioners have not brought to our attention any case addressing application of the merit and fitness requirement to layoffs, the Commission notes several other cases arising in different contexts where our courts have declined to apply the clause to disputes not involving appointments or promotions. See, e.g., In re Local 195, IFPTE, 88 N.J. 393, 405 (1982) (holding the general ability to contract out work does not contravene the merit and fitness requirements); Carls v. Civil Service Commission, 17 N.J. 215, 221 (1955) (rejecting claim that reclassification of positions violated the Constitution's merit and fitness requirement); and State Troopers Fraternal Ass'n v. State, 115 N.J. Super. 503, 507 (Ch. Div. 1971) (holding the constitutional "merit and fitness" requirement did not prevent the Legislature from excluding certain public employees from the Civil Service law), aff'd, 119 N.J. Super. 375 (App. Div. 1972), aff'd, 62 N.J. 302 (1973).
Petitioners do not address or attempt to distinguish any of these precedents. Moreover, they do not explain how the Constitution would permit reliance on title seniority ahead of examination, employed here in accordance with N.J.S.A. 11A:8-1b and to which they do not object, but prohibit similar reliance on jurisdictional seniority as a tie-breaker over examination and placement on a promotional list. They argue only that the layoff plan "was unfair because it in effect undid the promotions."
Petitioners also contend the plan "double counted the seniority factor." Because that argument was not made to the Commission, we need not address it. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). As the seniority factored into examination ranking is not jurisdictional seniority, however, but seniority in the title(s) to which the exam is open, it does not appear to advance petitioners' claim in any event. --------
But as the Commission points out, every candidate appointed to a civil service position has demonstrated merit and fitness by passing an exam and ranking high enough on an eligible list to be reached for appointment, and once appointed, every employee in a title is considered equally qualified for the position. Like the Supreme Court, albeit in a different context, we decline to accord the Constitution's merit and fitness requirement the "sweeping scope" petitioners seek, and instead "prefer to interpret it in a more literal fashion so that it provides that appointments and promotions must be based on merit and fitness." State v. State Supervisory Employees Ass'n, 78 N.J. 54, 76 (1978). Because we agree with the Commission that the clause is not applicable in this context, and we cannot find that petitioners' layoff rights under the plan were in anyway at odds with merit and fitness principles, we affirm.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION