Pastore v. County of Essex

• Decision Date: 15 December 1989
• Citation: 568 A.2d 81,237 N.J.Super. 371
• Parties: Gerard PASTORE, Sr., Plaintiff-Appellant, and Gerard Pastore, Jr., Plaintiff, v. COUNTY OF ESSEX and Nicholas Amato, both officially and individually, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 371

237 N.J.Super. 371

568 A.2d 81

Gerard PASTORE, Sr., Plaintiff-Appellant and Gerard Pastore, Jr., Plaintiff, v. COUNTY OF ESSEX and Nicholas Amato, both officially and individually, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Submitted Nov. 22, 1989.

Decided Dec. 15, 1989.

Fox and Fox, for plaintiff-appellants (Dennis J. Alessi of counsel, Dennis J. Alessi and Stacey B. Rosenberg, Newark, on the brief).

Apruzzese, McDermott, Mastro & Murphy, for defendants-respondents (Sharon P. Margello, Springfield, on the brief).

Before Judges KING, BAIME and KEEFE.

The opinion of the court was delivered by

BAIME, J.A.D.

This is an appeal from a summary judgment entered by the Superior Court, Law Division, dismissing plaintiff Gerard Pastore, Sr.'s claim that he was wrongfully discharged from his employment as greens superintendent of all Essex County golf courses. In a written opinion, the Law Division judge determined that plaintiff was disqualified from serving in the position by reason of his prior convictions. We agree and affirm essentially for the reasons expressed by Judge Brochin in his opinion rendered on July 14, 1988.

I.

The facts are not in dispute and are substantially a matter of public record. On November 10, 1977 plaintiff was convicted of conspiracy ( N.J.S.A. 2A:98-1) and numerous counts of obtaining money by false pretenses ( N.J.S.A. 2A:111-1), forgery ( N.J.S.A. 2A:109-1) and uttering a forged instrument ( N.J.S.A. 2A:109-1). We need not recount at length the facts surrounding these convictions. Suffice it to say, the record reflects that plaintiff, while serving as a supervisor of the Newark Youth Corps, falsified various employment applications and thereby obtained payroll checks which he forged and cashed. As a result of these convictions, plaintiff served nine months in the Essex County Jail and forfeited his employment with the City of Newark pursuant to N.J.S.A. 2C:51-2a.

Following his incarceration, plaintiff commenced employment with Essex County as a research assistant at the county golf courses. There followed a series of rapid promotions ultimately leading to plaintiff's provisional appointment as manager of golf facilities and later as greens superintendent of all three of Essex County's golf courses. Despite the voluminous and detailed record, it is difficult to differentiate between plaintiff's duties as manager and his responsibilities as greens superintendent. Nevertheless, it appears that plaintiff played a substantial role in managing the golf courses. At times, plaintiff handled revenues at the Hendrick's Golf Course well in excess of $50,000 a month. Indeed, in plaintiff's complaint he alleged that he was responsible for increasing revenues by some $300,000 each year.

Because plaintiff does not contest his dismissal as manager of golf facilities, this appeal pertains solely to his discharge from his position as greens superintendent. We thus limit our discussion to those duties and responsibilities embraced in that post. In that respect, the civil service job description reads in pertinent part as follows:

DEFINITION:

Under direction, directs and administers a comprehensive maintenance program of regulation golf courses; directs employees engaged in carrying out the specialized maintenance program; prepares budgets requests and administers an approved budget; may develop plans for improvement of golf courses; does related work as required.

EXAMPLES OF WORK:

Plans and supervises a variety of maintenance programs related to the proper care of the turf and land areas of golf courses; gives suitable assignments and instructions to assigned personnel; prepares budget estimates; requisitions, receives, accounts for, stores and issues materials and supplies; recommends the selection of specific equipment for maintenance of golf courses supervises and works with the foremen and their crews in maintaining golf courses; schedules the men so as to provide full coverage during the peak season, as well as the remainder of the year; ... directs the operation and repair of underground irrigation systems; insures the proper care and use of assigned equipment, materials and supplies; operates within the framework of established Park Commission policy; keeps needed records of personnel, equipment, materials, work done, and time spent; prepares suitable reports.

The depositions and affidavits submitted to the Law Division disclose that as greens superintendent, plaintiff supervised subordinate employees, prepared performance evaluations for the foremen and maintenance workers at each of the three golf courses and made capital improvement requests. Plaintiff continued to perform these duties until 1987, when Brenda Veltri was appointed County Personnel Director. In various civil service documents, plaintiff had failed to disclose that he had been convicted previously of the crimes we described earlier in our opinion. However, Ms. Veltri had served as Personnel Director of the City of Newark between 1975 and 1984 and was thus thoroughly familiar with plaintiff's criminal record. Plaintiff's criminal history was brought to the attention of Ms. Veltri's supervisor and plaintiff was subsequently dismissed from both positions.

After his discharge, plaintiff instituted an action in lieu of prerogative writs, contending that he had been dismissed for political reasons. Defendants, the County of Essex and the County Executive, denied that allegation and argued that plaintiff was disqualified from employment by reason of N.J.S.A. 2C:51-2c. We will describe and analyze that statute in greater detail later in our opinion. It suffices here to note that N.J.S.A. 2C:51-2c bars individuals convicted of certain designated offenses from holding an "office or position of honor, trust or profit."

In granting defendants' motion for summary judgment, Judge Brochin rejected plaintiff's argument that the statutory ban is confined to highly placed executive or supervisory governmental positions. In that respect, the judge determined that the words "office, position and employment" are used interchangeably. In a similar vein, Judge Brochin construed the qualifying phrase "honor, trust or profit" as including in its purview all governmental employment. Alternatively, the judge found that the job of greens superintendent constituted an "office or position of honor, trust or profit, ... as distinguished from mere employment," and was thus embraced within the statutory disqualification.

II.

We first address plaintiff's argument that the statutory disqualification is applicable only to a governmental "office" or "position" and does not permanently bar all public "employment." N.J.S.A. 2C:51-2 provides in pertinent part as follows:

a. A person holding any public office, position, or employment, elective or appointive, under the government of this State of any agency or political subdivision thereof, who is convicted of an offense shall forfeit such office or position if:

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(2) He is convicted of an offense involving or touching such office, position or employment.

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c. In addition to the punishment prescribed for the offense, and the forfeiture set forth in 2C:51-2a., any person convicted of an offense involving or touching on his public office, position or employment shall be forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions.

Plaintiff concedes that under N.J.S.A. 2C:51-2a he forfeited his employment with the City of Newark when he was convicted of "offense[s] involving or touching" his office. He contends, however, that, as greens superintendent, he was a mere "employee" of the County and not a holder of an "office" or "position" subject to the statutory disqualification. Plaintiff argues that, unlike subsection a, the forfeiture provision, which embraces "any public office, position, or employment," subsection c, the disqualification provision, applies only to an "office" or "position." We disagree.

We recognize that many common law cases draw distinctions between offices, positions and employments. These decisions were exhaustively reviewed in DeMarco v. Bd. of Chosen Freeholders of Bergen County, 21 N.J. 136, 140-143, 121 A.2d 396 (1956), and need not be detailed here. We merely note that the common law differentiation between offices, positions, and employments has been characterized by our Supreme Court as "somewhat obscure and rather unfortunate," Miele v. McGuire, 31 N.J. 339, 347, 157 A.2d 306 (1960), and by academics as "seriously lacking in realistic usefulness," Glasser, "A New Jersey Municipal Law Mystery: What is a 'Public Office?,' " 6 Rutgers L.Rev., 503 (1952); see also Note, "The Right of New Jersey's Governmental Officers and Employees to Recover for Back Pay When Illegally Dismissed or Suspended," 15 Rutgers L.Rev., 516, 522 (1961). It has been said that the distinction has "led to disparate treatment among comparables, now difficult to justify." Mastrobattista v. Essex County Park Commission, 46 N.J. 138, 142, 215 A.2d 345 (1965). See also State v. Goodman, 9 N.J. 569, 583, 89 A.2d 243 (1952).

Against this backdrop, we perceive no sound reason to resurrect an "empty [and] formalistic [classification] which obscures real legal utility and real legal value." Glasser, "A New Jersey Municipal Law Mystery: What is a 'Public Office?' ", supra, 6 Rutgers L.Rev. at 503. Rather, we are convinced that the Legislature intended to use the words "office," "position," and "employment" interchangeably. So posited, we are satisfied that the phrase "office or position" does not constitute a term of art with limited application.

The language employed in other subsections of N.J.S.A. 2C:51-2 bolsters this interpretation. For example, subsection a, the forfeiture provision, refers to anyone holding any "office, position or...