Mastrobattista v. Essex County Park Commission

• Decision Date: 30 October 1964
• Docket Number: No. A--202,A--202
• Citation: 85 N.J.Super. 283,204 A.2d 601
• Parties: Samuel MASTROBATTISTA, Plaintiff-Respondent and Cross-Appellant, v. ESSEX COUNTY PARK COMMISSION, Defendant-Appellant and Cross-Respondent. Frank W. MILBAUER, Jr., Plaintiff-Respondent and Cross-Appellant, v. ESSEX COUNTY PARK COMMISSION, Defendant-Appellant and Cross-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 283

85 N.J.Super. 283

204 A.2d 601

Samuel MASTROBATTISTA, Plaintiff-Respondent and Cross-Appellant, v. ESSEX COUNTY PARK COMMISSION, Defendant-Appellant and Cross-Respondent.

Frank W. MILBAUER, Jr., Plaintiff-Respondent and Cross-Appellant, v. ESSEX COUNTY PARK COMMISSION, Defendant-Appellant and Cross-Respondent.

No. A--202.

Superior Court of New Jersey Appellate Division.

Argued Oct. 13, 1964.

Decided Oct. 30, 1964.

John J. McDonough, Newark, for appellant and cross-respondent (Darby & McDonough, Newark, attorneys, Andrew W. Kleppe, Newark, on the brief).

Thomas E. Durkin, Jr., Newark, for respondents and cross-appellants (William J. Gearty, Newark, of counsel and on the brief).

Before Judges CONFORD, KILKENNY and LEWIS.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

These are consolidated actions in the Superior Court, Law Division, by two police officers of the Essex County Park Police to recover unpaid salary for the respective periods of time between their suspensions on charges of misconduct, followed by removal therefor, and the dates of their restoration to duty after successful appeals to the State Civil Service Commission. The trial court held for the plaintiffs, but deducted from the unpaid salaries sums earned by them in other employment in determining the amounts for which recovery should be allowed. Defendant Essex County Park Commission appeals the judgment insofar as it allows plaintiffs any recovery at all; plaintiffs cross-appeal the diminution of their damages in the manner indicated. As we have concluded that the appeal of the Park Commission is well-taken, it will not be necessary to consider the cross-appeal.

The reasons for the removal of the plaintiffs, which were entirely different in each case, are of no present concern. The Civil Service Commission, after hearings De novo in each case, found the evidence not sufficient to justify the determinations of guilt of the charges by the appointing agency, and the men were ordered restored to their posts. No order was made in either case respecting payment of back salary except that plaintiff Milbauer was ordered reinstated as of the date of his suspension.

The position of defendant on this appeal is simply stated. Each of the plaintiffs is and was during the period of service and suspension a public officer, and therefore the holder of an 'office' as distinguished from a position or employment. By the common law, which still obtains except as changed by statute, a public officer cannot recover salary for a period of time during which he was not actually rendering public service even if that fact results from his removal from service on grounds which are later determined in appropriate proceedings not to have been warranted and he is consequently ordered restored to incumbency of the office. Plaintiffs concede (or do not controvert) the rules of law thus stated but assert that the Legislature has indeed changed their effect in this case by the enactment of R.S. 11:15--6, N.J.S.A. as extended in scope by N.J.S.A. 11:2A--1. The trial court agreed with them, and in particular with the asserted effect of the decision in Walklet v. Civil Service Commission, 114 N.J.L. 582, 177 A. 894 (Sup.Ct.1935), as controlling the issue in their favor.

One may deprecate the artificalities inherent in some of the distinctions between public officers and public employees for purposes of civil service law, see Miele v. McGuire, 31 N.J. 339, 347, 157 A.2d 306, (1960), particularly as applied to such officers as ordinary policemen. However, the most recent pertinent decisions of the Supreme Court on the subject of recovery of back pay during a period of suspension or removal leave no doubt that, absent express legislative provision to the contrary, a public officer cannot recover salary for the period of his suspension or removal, when he was not actually rendering service, notwithstanding later restoration to his duties, but an employee or holder of a position, on the other hand, can so recover where improperly suspended or removed or where the charges have been found not to have been warranted. Miele v. McGuire, supra, allowing recovery by the holder of a position; De Marco v. Board of Chosen Freeholders, 21 N.J. 136, 121 A.2d 396 (1956); Winne v. Bergen County, 21 N.J. 311, 121 A.2d 733 (1956), both of the latter decisions denying recovery to a public officer.

In stressing the continued viability of the distinction between officers on the one hand, and employees and position holders on the other, in relation to the foregoing problem, Mr. Justice Jacobs spoke for the Supreme Court in each of the three cases cited above and particularly relied upon the leading case of Ross v. Board of Chosen Freeholders of Hudson County, 90 N.J.L. 522, 102 A. 397 (E. & A.1917). There a Hudson County jail guard was illegally dismissed from his position by the sheriff, his superior, and was later restored to duty by action of the State Civil Service Commission. His subsequent action for recovery of interim lost salary was dismissed by the Circuit Court on the ground that his position was sufficiently analogous to a public office to make applicable the common-law rule of denial of compensation to an officer who had not actually rendered service during the period claimed for. This judgment was reversed by the Court of Errors and Appeals on the express ground that the plaintiff's position differed from an office and was more assimilable to the category of an employment. Citing earlier authority, the court held that the status of employment connoted a contractual relationship with the hiring public agency and that dismissal of the plaintiff 'in violation of the civil service act constituted such a breach' thereof (at p. 527, 102 A. at p. 399) as entitled him to recovery of damages therefor on the basis of the law of contracts (at p. 528, 102 A. 397).

As to the question whether the present plaintiffs are public officers, rather than employees, nothing is better settled by our cases. Policemen or patrolmen of any rank have been held or regarded as officers in such illustrative cases as Mayor, etc. of Hoboken v. Gear, 27 N.J.L. 265 (Sup.Ct.1859); Fitzpatrick v. City of Passaic, 105 N.J.L. 103, 143 A. 728 (Sup.Ct.1928) affirmed o.b. 105 N.J.L. 632, 147 A. 908 (E. & A. 1929); Hillel v. Borough of Edgewater, 106 N.J.L. 481, 150 A. 385 (E. & A. 1930); Duncan v. Board of Fire, etc. Commissioners, 131 N.J.L. 443, 37 A.2d 85 (Sup.Ct.1944); and Strohmeyer v. Little Ferry, 136 N.J.L. 485, 56 A.2d 885 (E. & A. 1948). Approval of the foregoing is implicit in the opinion in the DeMarco case, supra, wherein most of the foregoing decisions were cited and discussed (21 N.J., at pp. 140--144, 121 A.2d 396), and in the holding therein that a county detective came within the scope of the rule of nonrecovery affecting public officers. Compare the recital there (21 N.J. at p. 139, 121 A.2d 396) of the nature of the statutory duties appertaining to the 'office' of county detective with those of a county park policeman like these plaintiffs specified in N.J.S.A. 40:37--155 (power of arrest and arraignment before local criminal court of violators of regulations of park commission adopted for protection and control of parks; park police to 'have all the powers conferred by law on police officers or constables in the enforcement of the laws of this State and the apprehension of violators thereof').

It thus appearing to be clear and, indeed, not disputed in this case, that plaintiffs are public officers who cannot recover salary for a period in which they were not actually working unless they can point to a statute applicable to them expressly altering the rule, we turn to a consideration of the legislation relied upon by plaintiffs for that purpose. Before doing so, however, we take note of the principle that any statute claimed to have the effect of altering the common-law rule here involved must be given strict construction because in derogation of the common law. DeMarco v. Board of Chosen Freeholders, supra (21 N.J., at p. 145, 121 A.2d 396); Winne v. Bergen County Supra (21 N.J., at pp. 315--316, 121 A.2d 733). For example R.S. (now N.J.S.A.) 40:46--34 was a consolidation of earlier enactments which, as originally adopted, provided that whenever a municipal officer or employee, including any policeman or fireman, should be illegally dismissed from his office or employment, and the dismissal later judicially declared illegal, he would be entitled to recover the salary for the period of the dismissal. But this was held not effective to cover the case of a policeman suspended but not dismissed, Strohmeyer v. Little Ferry, supra; and so the law remained until the statute was amended to cover the contingency of suspension as well as dismissal. L.1948, c. 163. Graham v. Asbury Park, 69 N.J.Super. 256, 174 A.2d 244 (App.Div.1961) affirmed o.b. 37 N.J. 166, 179 A.2d 520 (1962).

Plaintiffs obviously cannot claim the benefit of N.J.S.A. 40:46--34, because, like the plaintiff in DeMarco, supra, they are county, not municipal, officers. (Attempts have been made in the Legislature in recent years to extend the benefits of N.J.S.A. 40:46--34 to county and state personnel, but without success. See, e.g., Assembly Bill, No. 252, 1962.) But plaintiffs assert that by the enactment of L.1930, c. 176, § 34, now R.S. 11:15--2 to 11:15--6, N.J.S.A., incl., and N.J.S.A. 11:2A--1, they have become entitled, in the premises to recovery of their back pay.

Section 34 of the 1930 enactment cited provided a comprehensive plan for appeal to and review by the State Civil Service Commission of removal of a 'permanent Employee' in the State classified service. This became part of Chapter 15, Title 11, 'Civil Service,' Revised Statutes of 1937. The portion thereof which became section 11:15--6, particularly what is italicized below, is what plaintiffs specifically rely upon.

'The commission...