Board of Chosen Freeholders of Burlington County v. Conda

• Decision Date: 30 November 1978
• Parties: BOARD OF CHOSEN FREEHOLDERS OF the COUNTY OF BURLINGTON, Plaintiff, v. Elton A. CONDA, Surrogate of the County of Burlington, Defendant.
• Court: New Jersey Superior Court

Page 386

164 N.J.Super. 386

396 A.2d 613

BOARD OF CHOSEN FREEHOLDERS OF the COUNTY OF BURLINGTON, Plaintiff, v. Elton A. CONDA, Surrogate of the County of Burlington, Defendant.

Superior Court of New Jersey, Law Division.

Nov. 30, 1978.

M. Jefferson Davis, Burlington County Sol., for plaintiff.

Joseph F. Polino, Mount Holly, for defendant (Polino & Williams, Mount Holly, attorneys).

LENOX, A. J. S. C.

"No county * * * shall * * * give any money * * * to or in aid of any individual * * * " N.J.Const. (1947), Art. VIII, § III, par. 2.

By its complaint for declaratory judgment pursuant to N.J.S.A. 2A:16-50 Et seq., plaintiff Board of Chosen Freeholders of the County of Burlington seeks guidance as to whether it has the obligation or discretionary authority to reimburse defendant Surrogate of the County of Burlington for legal fees incurred in his defense of disciplinary proceedings before the Advisory Committee on Judicial Conduct and the Supreme Court of New Jersey. Now before the court is plaintiff's motion for summary judgment, and there being "no genuine issue as to any material fact challenged" the question may be determined as a matter of law. R. 4:46-2; Judson v. Peoples Bank and Trust Co. of Westfield, 17 N.J. 67, 73-75, 110 A.2d 24 (1954). See Evid.R. 3.

Complaints against defendant in his capacity as Surrogate of Burlington County were received and investigated by the Advisory Committee on Judicial Conduct which was established by the Supreme Court of New Jersey pursuant to R. 2:15 to assist the court in fulfilling its administrative responsibilities and to implement the statutory provisions relating to proceedings for the removal of judges. Following a full hearing the committee found that defendant, in his capacity as Surrogate, had engaged in improprieties proscribed by the Code of Judicial Conduct. Because of the absence of a definitive ruling on the status of surrogates and the standard of conduct applicable to them, the committee recommended the censure of defendant rather than removal from office. Acting upon that recommendation the Supreme Court issued an order directing defendant to show cause why he should not be publicly censured for his conduct.

The complaints investigated by the committee comprised six separate occurrences or series of occurrences. The committee dismissed four categories of allegedly improper conduct but determined that as to two others the complaints were substantiated and that defendant had engaged in conduct violating Canon 2A of the Code of Judicial Conduct. The Supreme Court concurred and censured defendant. In re Conda, 72 N.J. 229, 370 A.2d 16 (1977). Defendant was represented by counsel at all proceedings before the committee and the Supreme Court. Counsel fees and costs of $6,511.62 were incurred in connection with his defense of these proceedings and defendant has presented to plaintiff a formal claim for full reimbursement.

The two categories of prohibited conduct for which defendant was censured by the Supreme Court require separate consideration. The first involved the alteration by defendant of the designation of bank depositories contained in orders entered by County Court judges by the substitution of the names of banks selected by defendant, resulting in deposits being made in such banks rather than in those specified in the orders. The second involved the use by defendant of his county employees and office facilities for political purposes.

Defendant was censured as a judicial officer.

It is thus apparent that the surrogate is a judicial officer performing important judicial functions in our court system. From that standpoint it is appropriate and in accord with sound public policy that he be held to be a judge, and subject both to the administrative oversight of the Chief Justice and the Supreme Court * * * and to the strictures of the Code of Judicial Conduct so far as not necessarily inconsistent with his constitutional status as an elective officer. (In re Conda at 234, 370 A.2d at 18.)

The parties agree that disciplinary proceedings for judicial misconduct in office are Sui generis neither civil nor criminal in the usual sense. R. 2:15 provides a "detailed mechanism for supervision of judicial conduct, the investigation of accusations of judicial impropriety, and the disposition of judicial misconduct." Pressler, Current N.J. Court Rules, Comment R. 2:15. Specifically included within this section are judges of the surrogate's court. R. 2:15-8.

The conduct of members of the bar and judges of courts of the State is governed by the Disciplinary Rules of the Code of Professional Responsibility and the Code of Judicial Conduct of the American Bar Association, as amended and supplemented by the Supreme Court. R. 1:14 and Pressler, Current N.J. Court Rules, Appendix to Part I. The purpose of disciplinary proceedings under R. 1:20 for ethical violations by attorneys is the protection of the public, purification of the bar and prevention of recurrent deviations. In re Loring, 73 N.J. 282, 374 A.2d 466 (1977). The conduct of disciplinary proceedings for judicial misconduct is analogous to that for handling complaints of ethical violations against members of the bar. See Pressler, Current N.J. Court Rules, Comment R. 2:15. Correspondingly, the Supreme Court's responsibility to keep the house of the law in order extends to the conduct of judges as well as attorneys in practice. In re Gaulkin, 69 N.J. 185, 351 A.2d 740 (1976).

Defendant's claim for reimbursement is a novel one. While there is a plethora of reported cases and statutes in New Jersey and elsewhere relating to the obligation of a governmental employer to reimburse its employee for losses including counsel fees incurred in connection with civil and criminal litigation arising out of the performance of the duties of the employment, there appears to be no similar authority for the recovery of losses incurred in connection with proceedings for the discipline of governmental attorneys or judges. As one court noted in declaring unconstitutional legislation creating a municipal debt for expenses incurred by a police officer in defending himself against a charge of official misconduct,

* * * (defendant) made an unprecedented demand, and its novelty, when the numerous opportunities for the presentation of such claims for time out of mind are considered, is almost a demonstration that it was not incurred for a public purpose. While vast numbers of people during the history of the state have had claims similar in principle, seldom, if ever before, has one been bold enough to ask for * * * that under consideration. (Chapman v. City of New York, 168 N.Y. 80, 61 N.E. 108, 111 (Ct.App. 1901).)

It is probable that on no prior occasion has a New Jersey judicial officer or governmental attorney after defending himself in disciplinary proceedings sought, much less been awarded, reimbursement for the expense thereof. Yet this forms no basis for denial of such a claim and the propriety thereof must be determined on the basis of applicable legal principles.

Plaintiff initially contends that the nature and result of the earlier proceedings (disciplinary action culminating in censure) are dispositive of the issue of plaintiff's authority to reimburse defendant in that charges of official misconduct Ipso facto bar recovery for the cost of defense, particularly when discipline is ultimately imposed. Defendant responds that the nature of the proceedings is not determinative of the issue and argues that the controlling legal standard is that generally accepted as governing claims by governmental officials for restitution. This standard requires consideration of three factors: whether the actions of the public officer were performed in good faith; whether they arose out of and in the course of his performance of his public duties, and whether they were done for a public purpose, I. e., to benefit the public entity. See 3 McQuillin, Municipal Corporations (3 ed. 1973 rev.), § 12.137 at 575. Accord, Errington v. Mansfield Tp. Bd. of Ed., 81 N.J.Super. 414, 195 A.2d 670 (App.Div. 1963), 42 N.J. 320, 200 A.2d 492 (1964) and 100 N.J.Super. 130, 241 A.2d 271 (App.Div. 1968). Defendant contends that his actions meet this standard and that plaintiff has, therefore, both the authority and the obligation to reimburse him. Plaintiff, in turn, counters that even if the standard urged by defendant were to be applied, his conduct fails to meet that standard. Specifically, plaintiff contends that defendant's alteration of court orders was not in good faith even if undertaken in subjective good faith and that plaintiff derived no benefit therefrom and had no connection with or interest in the same, and thus that the actions were not taken for a public purpose. As to defendant's conduct in using his office for political purposes, plaintiff contends this was purely personal and meets none of the factors of the standard upon which defendant relies.

The categories of conduct for which defendant was cited and censured will be treated in inverse order. The second category requires little comment. This involved his engaging in political activities in his office during office hours and using public employees for such purposes (E. g. to make lists of voter quotas, to run personal and political errands and to handle personal and political telephone calls). The Supreme Court carefully noted the distinction between this improper use of public offices and facilities and the legitimate political activity which a surrogate, as an elected official, may pursue on his own time and with his own facilities. Public offices and facilities are "improperly used for any purposes except that of conducting the work and business of the surrogate's court." In re Conda, 72 N.J. at 236, 370 A.2d at 19. On this basis the court found that defendant's conduct violated Canon 2 A of the Code of Judicial Conduct as a misuse of public facilities. These...