Gallagher v. IrvingtonGallagher v. Irvington
The operative statutory language, applicable to civil service municipalities such as Irvington (§ 9.4) and to municipalities without civil service (
In any municipality ... promotions to positions on the paid or part-paid fire department and force shall be based upon merit as determined by suitable promоtion tests for such positions, provided however that a resident shall be appointed rather than a nonresident thereof in any instance in which the resident and nonresident achieved the same final average score in such test....1
The problem arises from the statutory language “a resident shall be appointed rather than a nonresident” when they tie. If that language compels appointment of the tied resident, the statute would only make sense when applied in a municipality that has a system requiring appointment of the highest scorer. However, the statutory system for appointment in municipalities with civil service permits the appointing authority to appoint any one of the top three eligibles as certified by the Civil Service Commission.
An absurd result must be avoided in interpreting a statute. Marranca v. Harbo, 41 N.J. 569, 574 (1964). The trial judge eliminated the possibility of such an absurd application by concluding that § 9.4 is not a tie-breaker. He read the statute as disqualifying any nonresident candidate who does not do better on the test than the highest scoring certified resident. Put another way, he construed § 9.4 “to grant a preference to a
In interpreting a section of a statute, “primary regard must be given to the fundamental purpose” of the underlying legislation. See N.J. Builders, Owners & Managers Ass‘n v. Blair, 60 N.J. 330, 338-339 (1972). Our task is to harmonize the section with the purpose of the whole. Brown v. Brown, 86 N.J. 565, 576-577 (1981). We must also read this section in pari materia with other statutes which deal with the “same matter or subject” and “seek to achieve the same overall legislative purpose.” See Mimkon v. Ford, 66 N.J. 426, 433 (1975).
Section 9.4 was part of L. 1972, c. 3, which prohibits any municipality from requiring residency as a condition of initial appointment or promotion in paid and part-paid fire (
This bill changes the residency requirement for policemen and firemen to the State of New Jersey.
... This bill prohibits any municipality from passing an ordinance requiring local residency by members of its policе and fire departments. [Statement, Senate No. 452, L. 1972, c. 3.]
However § 9.4 is interpreted, it must be seen as an aberrant vestige of the residency requirement for appointment and therefore contrary to the fundamental purpose of the legislation viewed as a whole. Harmonizing that section with the purpose of the underlying legislation requires that we limit its application to the exceptional case. A return to any broader residency requirement is best left to a clear legislative enactment.
Indeed, such a return hаs already been accomplished by the adoption of L. 1976, c. 132,
Statutory requirements that policemen and firemen reside within the municipalities they serve have been abolished by P.L. 1972, c. 3. The new law also forbids municipalities to enforce any such residency requirement by local ordinance or regulation.
In signing the new law, Governor Cahill pointed out that residency would be “encouraged on a voluntary basis.” P.L. 1972, c. 3 provides thаt a resident be favored over a nonresident, in appointment or promotion, whenever both the resident and nonresident score identically upon civil service tests (or similar competitive tests in municipalities not operating under civil service).
This bill is intended to establish a more substantial preference for local residents, with respect to initial appointments. It provides that whenever residents of the municipality qualify for appointment to vacant positions (regardless of their exact scores of any competitive examination) they shall be appointed, or offered appointments, before nonresidents. Similarly, residents of the county in which the municipality is located would be appointed or offered appointments before noncounty residents, and State residents before out-of-State qualifiers. .. . [Statement, Senate No. 714 (L. 1976, c. 132), emphasis supplied.]
Section 9.4 must also be read in pari materia with
[T]he [civil service] commission shall certify to the appointing authority the names and addresses of three candidates willing to accept employment standing highest on the register for the class or grade in which the position belongs. The appointing authority shall select one of the three so certified.
11:23-4. Class register of eligibles prepared
The commissioners shall, from the returns or reports of examiners or from the examinations made by the commission, prepare a register for each grade or class of positions in the classified service of a county, municipality or school district operating under this subtitle, of the persons attaining the minimum mark as may be fixed by the commission for any part of such examination and whose
general average standing upon examination for such grade or class is not less thаn the minimum fixed by the rules of the commission, and who are otherwise eligible. Such persons shall take rank upon the register as candidates in the order of their relative excellence as determined by examination.
The trial judge‘s expansive interpretation of § 9.4 reduces rule-of-three discretion by disqualifying otherwise certifiable nonresidents who fail to do better on the test than the highest scoring certified resident even though there is no tie.
Applied in a civil service municipality, § 9.4 should be limited to the single instance when a tie produces an impasse in the appointing process, i.e., a tie in the test scores of a resident and a nonresident for third place on the register. Because the rule-of-three necessitates eliminating one of the tied eligibles, § 9.4 operates to eliminate the nonresident. This is the interpretation advocated by the amicus Civil Service Commission.
We realize that this interpretation results in not applying the tie-breaking language of § 9.4 where there happens to be a tie between a resident and a nonresident for first or second place in a civil service municipality. To disqualify a nonresident who ties a resident for first and permit appointment of a nonresident who scores third is as absurd a result as requiring appointment of a resident who ties a nonresident for second over a resident who scores first. Any interpretation of § 9.4 must depart from a literal application to avoid an absurd result. Our interpretation looks beyond the fortuity of a tie to whether there is a necessity for breaking it.
Our dissenting colleague emphasizes that § 9.4 provides “a resident shall be appointed ...” and not that a resident shall be certified for appointment. We do not read § 9.4 as literally requiring appointment of a resident. The whole phrase used in § 9.4 is that “a resident shall be appointed rather than a nonresident” (emphasis added) when they are tied. So long as the nonresident who tied is not appointed, the statutory mandate is satisfied. Section 9.4 serves only to disqualify the nonresident who ties; it does not literally comрel appointing a resident or disqualifying any other nonresident.
The interpretation given § 9.4 by the trial judge results in disqualifying all nonresidents who take the test and do not do better than the highest scoring certified resident. By its footnote 7, the dissent implies that this interpretation would not violate the rule-of-three where there are residents who scored below third. In such instances under its regulations the Commission would replace disqualified nonresidents with the lower scoring residents. An important justification for the rule-of-three is that it provides the appointing authority three candidates whose merit has been established by achieving the highest test scores. Replacing any of them with lower scoring candidates ill-serves the rationale for the rule.
The interpretаtion of § 9.4 given by the trial judge is contrary to the general purpose of the underlying legislation to abolish residency requirements, it reduces rule-of-three discretion, and it applies an exceptional remedy expressly reserved by the Legislature for the rare case of a tie to the usual case where there is no tie at all. The interpretation we have given § 9.4 suffers from none of these infirmities and seems to us consistent with overall legislative intent. That intent is not to favor residents when considеring merit, but to favor residents only when merit considerations are equal.
Reversed.
BOTTER, P.J.A.D., dissenting.
I would affirm the judgment entered by Judge Baime in the trial court largely for the reasons expressed in his opinion. 184 N.J. Super. 225 (Law Div. 1982). In my view, the preference for promotional appointment created by
It is difficult to give § 9.4 any reading that does not produce some anomalies. The Attorney General argues for a departure from a strict application of its literal terms according to the practice of the Civil Service Commission. The majority opinion has adopted that interpretation. Reading the statute in pari materia with the rule-of-three law,
The trial judge‘s opinion recognized that appointing authorities have long had the discretion to select one of three individuals who stand highest among candidatеs for appointment to a position. This “rule-of-three” principle is embodied in
Before 1972, all officeholders were required to reside within the municipality by which they were employed.
McGotty contends that § 9.4 does not come into play at all because his final average score did not tie with the final average score of any other candidate. This contention was rejected by my colleagues. They read § 9.4 as disqualifying a nonresident only in the case where the nonresident ties with a resident for third place and a choice between them must be made to determine
As noted above, appellant contends that § 9.4 should be read literally to apply only when a resident eligible ties with a nonresident eligible. This argument is also difficult to accept. This would mean that a nonresident with a lower score than that of a resident could be appointed although the resident would be preferred if their scores were equal. In othеr words, a literal reading of the statute produces the absurd result that a nonresident whose score is tied with a resident cannot be appointed but the nonresident could be appointed if his score is lower than that of the resident. I am constrained to reject this interpretation. I conclude that the only logical interpretation of
Requiring the appointment of a resident over a nonresident when the resident has an equal or higher score does not eliminate the operation of the rule-of-three. Of three eligibles, a nonresident could still be appointed over a resident if no resident in the group has a higher score than the nonresident. The rule-of-three remains fully operative аlso when the three highest scoring candidates are all residents or are all nonresidents. Moreover, the statute favors certain residents only against certain nonresidents. Of three eligibles, a resident could be appointed over higher scoring residents and nonresidents alike. The choice among three eligibles is fully operative also when a nonresident has the highest score. The statute operates solely to bar the appointment of a nonresident when an eligible resident has an equal or higher score.7
The interpretation advocated here is consistent with the statement attached to the bill which became L. 1972, c. 3,
Under the terms of the bills, S-452 prohibits making residency a condition of employment for police and firemen. It stipulates, however, that in instances where a resident of a municipality and a non-resident receive the same score on a civil service examination for appointment or promotion, the resident will be appointed or promoted prior to the non-resident. “This will provide an incentive for police and firemen to reside in the municipаlity on a voluntary basis without any reduction in quality,” the Governor said. He added that “preferences for veterans will not be diminished by this provision.” [Emphasis added.]
Since 1972, the preference for residents over nonresidents has been expanded in cases of initial appointments. L. 1976, c. 132. The law now provides that residents as a class are to be preferred over nonresidents for initial appointment, regardless of the relative scores of individual candidates.
Reading the law as requiring a tie for third place only, and then giving the resident preference in filling the third place on the eligibility list, but not a preference in appointment, would render the statutory preference for residents largely meaningless. As nоted above, final average scores are calculated to three decimal places. It is unlikely that tie scores will ever occur; but it is even more unlikely that candidates will tie only for third place. Interpreting the statute to apply only in cases of tie scores for any position or for third place means that it is unlikely that residents will obtain any benefit from the statutory preference in promotional appointments.8
Notes
In any municipality wherein Title 11 (Civil Service) of the Revised Statutes is operative, promotions to positions on the paid or part-paid fire department and force shall be based upon merit as determined by suitable promotion tests for such positions, provided however that a resident shall be appointed rather than a nonresident thereof in any instance in which the resident and nonresident achievеd the same final average score in such test. The preference granted by this section shall in no way diminish, reduce or affect the preferences granted to veterans pursuant to chapter 27 of Title 11 of the Revised Statutes or any other provision of law.
Final Average Seniority Oral Score
2. Dougherty, J.D. 88.763 86.327 86.950
4. Rocklin, A.G. 82.020 86.266 80.200
5. Solewski, R.A. 81.600 86.266 79.000