Keenan v. Board of Chosen Freeholders of Essex County
| Decision Date | 21 March 1969 |
| Docket Number | No. L--41297,L--41297 |
| Citation | 251 A.2d 785,105 N.J.Super. 271 |
| Parties | John B. KEENAN, Superintendent of Elections of Essex County, and Commissioner of Registration of Essex County, within the State of New Jersey, and Lester E. Mahr, Legal Assistant to the Superintendent of Elections and Administrative Assistant to the Commissioner of Registration of Essex County, Plaintiffs, v. The BOARD OF CHOSEN FREEHOLDERS OF the COUNTY OF ESSEX, a body politic of the State of New Jersey; Henry A. Peer, Treasurer of said County, and The Civil Service Commission of New Jersey, Defendants. |
| Court | New Jersey Superior Court |
Herman W. Kapp, Newark, for plaintiffs.
Irwin I. Kimmelman, Essex County Counsel, for defendants.
ANTELL, J.C.C. (temporarily assigned).
Plaintiff John B. Keenan is the commissioner of registration and superintendent of elections of Essex County. In this action in lieu of prerogative writs both he and co-plaintiff, Lester E. Mahr, seek relief from certain refusals of the county treasurer and the county board of chosen freeholders to pay Mahr's salary under appointments of the commissioner of registration. The refusals are defended on the ground that the appointments are unauthorized.
A member of the New Jersey bar since 1924, Mahr was appointed counsel to the commissioner of registration and superintendent of elections of Essex County effective November 1, 1940. On or about January 16, 1944 he was appointed legal assistant to plaintiff Keenan's predecessor in office and served in that capacity until June 27, 1968. By appropriate action he was certified as eligible for civil service status and was thereafter classified by the Department of Civil Service as a permanent employee. The effective classification date is June 1, 1952.
On June 27, 1968, defendant board of chosen freeholders, by resolution No. 37, directed defendant county treasurer to discontinue salary payments to Mahr or any other person who might be appointed to the position of legal assistant in the office of commissioner of registration and superintendent of elections, and to remove Mahr's name from the county payroll. No salary payments have since been made, although Mahr regularly reports for duty and renders services substantially the same as those prior to June 27.
For reasons set forth by this court in Keenan v. Essex County Board of Chosen Freeholders, 101 N.J.Super. 495, 244 A.2d 705 (Law Div.1968), I conclude that the position of legal assistant to which Mahr was appointed in 1944 never enjoyed legal existence and that he may not lawfully act in such a capacity. The application for his restoration to the payroll as a legal assistant is therefore denied. There can be no judicial restoration to a position which was never legally created. Kovalycsik v. City of Garfield, 58 N.J.Super. 229, 239, 156 A.2d 31 (App.Div.1959). It follows that the tenure provisions of the Civil Service Act are not available to Mahr since these inure solely for the benefit of those who are lawfully in the employ of a governing body. Handlon v. Town of Belleville, 4 N.J. 99, 109, 71 A.2d 624, 16 A.L.R.2d 1118 (1950); Grunewald v. Township Committee of Weehawken Tp., 18 N.J.Super. 401, 87 A.2d 368 (App.Div.1952), certification denied 10 N.J. 145, 89 A.2d 492 (1952). One who was appointed to a nonexistent office is no better off in terms of job protection than one whose lawfully created position was abolished in good faith. In the latter situation it has been held that civil service security does not prevail. Kraibuehler v. Civil Service Commission, 134 N.J.L. 97, 46 A.2d 89 (Sup.Ct.1946); Scowcroft v. Civil Service Commission, 13 N.J.Misc. 448, 177 A. 679 (Sup.Ct.1935); 4 McQuillin, Municipal Corporations (3rd ed. 1968), § 12.248(d).
On June 28, 1968, the day following the passage of resolution No. 37, plaintiff Keenan, purporting to exercise his statutory powers, appointed Mahr to the position of administrative assistant in the office of commissioner of registration and accompanied this action by filing with defendants a 'Request for Personnel Action' which described the duties of this position. Defendants again refused to meet the salary expense thereof.
Plaintiffs argue that this appointment is in all respects valid under N.J.S.A. 19:31--2, which, in pertinent part, provides that the commissioner of registration '* * * shall have power to appoint on a permanent, or temporary basis, such number of persons, as in his * * * judgment may be necessary in order to carry out the provisions of this Title,'
and that under the seventh paragraph of that section the county treasurer must pay the resulting salary expense, subject only to the $655,000 budget ceiling prescribed by N.J.S.A. 19:32--2. Defendants answer that the appointment violates the principle applied in Keenan v. Essex County Board of Chosen Freeholders, Supra, since the duties of the new position do not significantly vary from those performed by Mahr as legal assistant. Also, it is said that the appointment assumes sole prerogatives of the Attorney General and exceeds the commissioner's statutory power.
An understanding of the contentions is aided by the following comparison of duties contemplated by the 1968 appointment as administrative assistant with certain of those contained in the 1952 Civil Service job description for what I have held is the unauthorized position of legal assistant. The latter document has been marked in evidence.
Confers with the Attorney General, prosecutor's office, police departments, county clerk, county board of elections, municipal clerks and public officials concerning the conduct of elections and violations of the election law.
Analyzes legislation introduced affecting the election law and confers with members of the Legislature.
Maintains contact with election officials in the State in order to maintain standard practices.
Prepares legislation for the office.
Confers with county board of elections, municipal clerks and public officials concerning the conduct of elections.
Analyzes pending legislation which concern this office * * * confers with members of the Legislature concerning legislation affecting the office.
Maintains contact with election officials in the State in order to maintain uniform practices.
Performs such other duties as may be assigned to him by the commissioner of registration.
Although certain duties, clearly of a legal nature, which he performed as a legal assistant have been omitted from the new position, the similarity of the two jobs is strikingly enhanced by Mahr's testimony that since at least 1952 approximately 95% Of his working time in the commissioner's office was devoted to legislative work, 'call it lobbying if you will.' The remainder was occupied with legal work, and this only on election days. Since the latter services are to be discontinued, his status will now be solely that of the commissioner's legislative representative. In this capacity he is chiefly required to be present at Trenton at all times when the Legislature is in session and there attend to all pending legislation involving or touching upon Election Law Policy and the interests of the citizens of Essex County, taking such action to deter or expedite passage thereof as may be suitable. At the same time he serves on retainer as the legislative representative of an unspecified number of private clients whose interests are also the subject of his attention in Trenton.
Although the duties of the two jobs closely coincide, and even though it is evident that nothing has really changed except the job title, this alone does not mandate the conclusion that the commissioner is merely reappointing his legal assistant in borrowed plumes. While he may have done lobbying as a legal assistant it does not follow that lobbying can be done only by a legal assistant. Legal training and experience are useful adjuncts to lobbying work, but they are not required and the field is open to non-lawyers.
Nor is the appointment vitiated by N.J.S.A. 52:17A--4(e), which designates the Attorney General as the sole legal adviser for all state officers and reserves exclusively to that official the right and obligation to 'interpret all statutes' for their guidance. Perhaps, as the county counsel reasons, 'interpretation' is necessarily intrinsic to the 'analysis of pending legislation,' but this brings the duties of the proposed appointment into fatal collision with the statute only if the word 'interpret' is intended to encompass every level and variety of interpretation. In a broad sense, verbal symbols always require a process of interpretation. In and of themselves words embrace only the most generalized of meanings, and it is only when they are examined in terms of context and situational referents--I.e., interpreted--that they acquire meaningful identity. Carroll, Language and Thought, pp. 41--42 (1964); Hayakawa, Language in Thought and Action, pp. 61--62 (1949); Ogden & Richards, The Meaning of Meaning (rev. ed. 1956); 2 Sutherland, Statutes and Statutory Construction (3rd ed. Horack, 1943), § 4504, pp. 319--320; 9 Wigmore, Evidence (3rd ed. 1940), § 2470(3), p. 227.
If read literally to preempt to the Attorney General the right of interpretation in its broadest meaning, as county counsel urges we do, the foregoing statute would effectively immobilize the operation of every state office. Charged as they are with responsibility for administering multitudes of statutory directives, even their most routine functions, no matter how plainly prescribed by the Legislature, would have to be deferred pending formal determinations by the Attorney General. I do not read this statute to have intended so awkward a result. See State v. Gill, 47 N.J. 441, 444, 221 A.2d 521 (1966). Statutes should be read sensibly so as to be consistent with reason and good discretion. Schierstead v. City of Brigantine, 29 N.J. 220, 230, 148 A.2d 591 (19...
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