Muccio v. Cronin

• Decision Date: 02 July 1975
• Citation: 343 A.2d 158,135 N.J.Super. 315
• Parties: Joseph A. MUCCIO, Plaintiff, v. Clinton E. CRONIN, Acting County Prosecutor, Deputy Attorney General in Charge of Passaic County Prosecutor's Office, et al., Defendants.
• Court: New Jersey Superior Court

Page 315

135 N.J.Super. 315

343 A.2d 158

Joseph A. MUCCIO, Plaintiff, v. Clinton E. CRONIN, Acting County Prosecutor, Deputy Attorney General in Charge of Passaic County Prosecutor's Office, et al., Defendants.

Superior Court of New Jersey Law Division.

July 2, 1975.

Philip H. Mizzone, Jr., Paterson, for plaintiff.

Burrell Ives Humphreys, Prosecutor of Passaic County, for defendants Clinton E. Cronin and Burrell Ives Humphreys (John P. Goceljak, Asst. Prosecutor, on the brief.)

Martin Verp, Passaic County Counsel, Paterson, for defendant Board of Chosen Freeholders of Passaic County.

DOAN, J.S.C.

Plaintiff brings this action in lieu of prerogative writs seeking judgment: (a) declaring null and void his termination as a Passaic County investigator, (b) compelling his reinstatement to that position, (c) declaring him tenured in the position, and (d) awarding him counsel fees and costs.

The basic facts are neither disputed nor complex. On June 16, 1951 plaintiff was appointed a special investigator for the Passaic County Prosecutor's Office by then Prosecutor Donald G. Collester. The appointment was denoted 'unclassified.' Thereafter, pursuant to L.1951, c. 274 (N.J.S.A. 2A:157--10), plaintiff was designated a county investigator by Prosecutor Collester on September 12, 1951 and continued as such until receipt from then Acting Prosecutor Clinton E. Cronin of a notice of termination, dated June 13, 1975, effective June 20, 1975. Defendant Humphreys, who took office as Passaic County Prosecutor on June 23, 1975, has notified plaintiff that he will not reappoint him as a county investigator. From August 11, 1946 to December 9, 1953 plaintiff served as a volunteer fireman in the Borough of West Paterson. On December 17, 1953 he received an exempt fireman certificate from the West Paterson Fire Co. No. 1 which was filed in the Passaic County Clerk's office the following day, December 18, 1953.

Letter opinions of then county counsel dated February 10, 1954, addressed to the board of freeholders, and May 6, 1970, addressed to plaintiff, concluded that Muccio had acquired tenure as a county investigator by virtue of R.S. 40:47--60 (entitled 'Tenure of exempt firemen'). Plaintiff so claimed in a latter to Prosecutor Collester dated January 19, 1954. This claim was subsequently forwarded to the board of freeholders who, in turn, notified the Civil Service Commission, by letter dated March 9, 1954, of it and the confirming opinion of county counsel (that dated February 10, 1954). The Commission, after noting receipt of the transmitted materials on Muccio's file, concluded it had no jurisdiction over R.S. 40:47--6 matters and took no action thereon.

Cross-motions for summary judgment have been filed. At oral argument defendants questioned whether plaintiff had served continuously since 1951 without reappointment, as he claimed, and whether the exempt fireman certificate was duly issued. N.J.S.A. 40A:14--55, 56 and 59; R.S. 40:47--52, 53 and 58. However, for purposes of their motion, these facts were conceded.

Plaintiff contends he has tenure as an exempt fireman under N.J.S.A. 40A:14--64 and that he cannot be removed absent a finding of good cause made after a fair and impartial hearing. Defendants posit that the Exempt Firemen's Tenure Act is inapplicable and Muccio is subject to summary removal by any incumbent prosecutor, N.J.S.A. 2A:157--10.

I

Initially, judgment dismissing the complaint must be entered in favor of defendant board of chosen freeholders inasmuch as it lacks any authority to continue plaintiff in his position or to reappoint him to it. Cetrulo v. Byrne, 31 N.J. 320, 157 A.2d 297 (1960); N.J.S.A. 2A:157--10. In Cetrulo it was said:

The Legislature as well as the courts have long recognized the strong policy considerations which dictate that since the county prosecutor is charged with heavy enforcement responsibilities he must be given broad powers to appoint his own personnel; thus he appoints his own assistant prosecutors And investigators within the maxima prescribed by statute * * *. * * * Nowhere have we found any statutory language which supports the notion that an outside legislative agency such as the board of freeholders has the right to appoint assistants to the prosecutor * * *. (at 329, 157 A.2d at 301)

Though Cetrulo dealt specifically with the freeholders' inability to appoint legal assistants, the holding there was clearly intended to apply to other assistive positions such as investigator and is dispositive of the action against the board here.

II

We turn, then, to the heart of the controversy. N.J.S.A. 40A:14--64 pertinently reads as follows:

Whenever an exempt fireman holds a * * * county * * * office not created by the Constitution, he shall hold such office during good behavior and shall not be removed unless for good cause after a fair and impartial hearing, provided he has or shall have served in said office for a term of 3 (three) consecutive years * * *.

Since N.J.S.A. 2A:157--10 denotes county investigator as an 'office or position' the above statute seems applicable to Muccio's case. Furthermore, even were it not an 'office' for 40A:14--64 purposes, plaintiff's circumstances could bring him within N.J.S.A. 40A:14--60, which provides:

Whenever any person possessing an exempt fireman certificate holds an office, position or employment of * * * a county * * * for an indeterminate term, such person shall hold his office, position or employment during good behavior and shall not be removed therefrom from for political reasons but only for good cause after a fair and impartial hearing.

These two statutes find their immediate source in R.S. 40:47--60, 63 and 64; L.1911, c. 212; L.1938, c. 385. N.J.S.A. 40A:14--64 is an amalgam of R.S. 40:47--63 and 64 of the old statutory scheme and employs similar language. N.J.S.A. 40A:14--60 combines elements of R.S. 40:47--60 and 63 with the language paralleling R.S. 40:47--63. Substantively, the protection afforded holders of exempt fireman certificates is the same. As the Appellate Division said in Bialkowski v. Ridgefield, 120 N.J.Super. 194, 293 A.2d 671 (1972):

Contrary to the contention of the plaintiff, there is nothing in the 1970 revision of Chapter 47 of Title 40, and specifically the sections dealing with tenure of persons holding exempt fireman certificates * * * which indicates any legislative intent 'to change the pre-existing scheme.' (at 197, 293 A.2d at 672)

It appears evident that were this the only body of law to be applied to the instant facts, plaintiff would prevail. Plaintiff is a holder of an exempt fireman certificate who has occupied the county position to which he was appointed continuously for over 24 years. It is not necessary that he have had the certificate when appointed, Grimm v. Sussex Bd. of Chosen Freeholders, 118 N.J.L. 210, 192 A. 424 (Sup.Ct.1937), and it has been held that a term coextensive with the appointing agency's pleasure, as is the case under N.J.S.A. 2A:157--10, is an indefinite one for purposes of the Exempt Firemen's Tenure Act, Maxwell v. Wildwood, 111 N.J.L. 181, 184, 168 A. 143 (Sup.Ct.1933). The requirements of the act have patently been met here and tenure would normally attach in the absence of other considerations.

Other considerations exist, however. Our courts have long recognized the existence of exceptions to the scope of general tenure acts. As noted in Brennan v. Byrne, 31 N.J. 333, 157 A.2d 303 (1960:

It is well settled that the general terms of (the Veterans' Tenure Act) may not properly be applied to employments under later specific enactments which adequately evidence a legislative purpose of excluding them from its tenure protection. (at 337, 157 A.2d at 305).

The provisions of the Veterans' and Exempt Firemen's Tenure Acts being equatable as to form and substance, Maxwell, supra, 111 N.J.L. at 184, 168 A. 143, it follows that the restriction to the former's Norcross, 122 N.J.L. 569, 6 A.2d 721 (Sup.Ct.1939), aff'd o.b. 124 N.J.L. 133, 11 A.2d 106 (E. & A.1940). applicability enunciated in Brennan per-

Brennan concerned a terminated county investigator claiming veteran's tenure in his reinstatement effort. Though lengthy, quotation of the court's rationale in rejecting that claim is appropriate:

In 1931 the Legislature adopted a supplement to earlier enactments relating to county detectives in counties of the first class * * *; it expressly authorized prosecutors in counties of the first class to appoint county investigators * * * and it provided that county investigators shall hold office at the pleasure of the prosecutor and shall be excluded from the classified service under the Civil Service Act. See L.1931, c. 164. A statement attached to the bill which * * * became L.1931, c. 164 noted that the prosecutor's appointees would hold office 'only during the pleasure of the prosecutor' and that the bill gave to the prosecutor the right to appoint during his term 'persons in whom he has that degree of confidence resulting from personal, intimate knowledge.' (The court then reviewed provisions dealing with a veteran investigator's eligibility for a detective position.) In 1937 the aforementioned provisions were carried over into the Revised Statutes. See R.S. 2:181--6, 2:181--4. In 1951 the Legislature adopted an act revising the law concerning county detectives and county investigators and repealing certain enactments including R.S. 2:181--6 and R.S. 2:181--4. See L.1951, c. 274, N.J.S.A. 2A:157--1 Et seq. This revision provided for the appointment of county detectives in the classified service of the civil service and for the appointment in the unclassified service of county investigators to serve at the pleasure of the prosecutor and subject to removal by him. L. 1951, C. 274, p. 944; N.J.S.A. 2A:157--10. (The court again referred to the eligibility of veterans employed as county investigators for county detective appointments.)

All of the foregoing en...