La Polla v. Board of Chosen Freeholders of Union County

• Decision Date: 13 December 1961
• Docket Number: No. L--8869--60,L--8869--60
• Citation: 71 N.J.Super. 264,176 A.2d 821
• Parties: Michael LA POLLA, Plaintiff, v. BOARD OF CHOSEN FREEHOLDERS OF the COUNTY OF UNION and Edward A. Roesel, Defendants. P.W.
• Court: New Jersey Superior Court

Page 264

71 N.J.Super. 264

176 A.2d 821

Michael LA POLLA, Plaintiff, v. BOARD OF CHOSEN FREEHOLDERS OF the COUNTY OF UNION and Edward A. Roesel, Defendants.

No. L--8869--60 P.W.

Superior Court of New Jersey Law Division.

Dec. 13, 1961.

Anthony Luongo, Elizabeth, for plaintiff.

Leo Kaplowitz, County Atty., Linden, for defendant Board of Chosen Freeholders (H. Lee Sarokin, Newark, on the brief).

John B. Stone, Jr., Elizabeth, for defendant Edward A. Roesel (Ryan, Saros, Davis & Stone, Elizabeth, attorneys).

FELLER, J.S.C.

This is an action in the nature of prerogative writs in which the plaintiffs seeks to compel the Board of Chosen Freeholders of Union County to reinstate him to his position as secretary to the Superintendent of Public Works and to oust the defendant Edward A. Roesel from the said position. The said Edward A. Roesel was retired as of September 1, 1961, approximately eight months after his appointment and approximately seven months after the complaint was filed in this action.

The plaintiff contends that on December 22, 1960, by resolution, he was appointed by the Board of Chosen Freeholders of Union County to the position of secretary to the Superintendent of Public Works of Union County to serve at the pleasure of said Superintendent at an annual salary of $7,495; that he performed the duties required of him until January 2, 1961 when the said board of freeholders passed a resolution purporting to rescind and terminate his appointment as secretary to the Superintendent of Public Works; that on said January 2, 1961 the said board of freeholders passed a resolution purporting to appoint the defendant Edward A. Roesel as secretary to the Superintendent of Public Works, effective January 1, 1961, at an annual salary of $7,495; that the said Edward A. Roesel ousted the plaintiff from said position and took upon himself the duties of same and that this was in violation of the bylaws; that among the provisions of said bylaws the Superintendent of Public Works was given the power to suspend all employees subject to the approval of the proper committee or department.

The plaintiff further contends that the board of freeholders lacked the authority to remove him under R.S. 40:21--3, N.J.S.A.; that this statute only provides for the removal of a person who holds an office and does not provide for the removal of an employee or one holding a position; that he does not hold an office and cannot be removed under the provisions of said statute; that he could only be removed by the Superintendent of Public Works as his resolution of appointment provides; that the decision of the Superior Court, Law Division, in the case of Leo Kaplowitz and James J. Kinneally, Plaintiffs v. Board of Chosen Freeholders of Union County and Louis J. Dughi, in which the court declared void and illegal the appointment of Louis J. Dughi to the office of special counsel to the board of freeholders is dispositive of this suit; that the decision rendered in Kaplowitz rendered void the resolution terminating the appointment of the plaintiff and the resolution appointing the defendant Roesel, and also taints every other resolution passed contemporaneously and subsequently, as well as the bylaws adopted on January 2, 1961. The plaintiff demands judgment removing and ousting the defendant Edward A. Roesel from the position of secretary to the Superintendent of Public Works and restoring the plaintiff thereto with all privileges, back pay and emoluments.

The defendant board of chosen freeholders denies the contentions of the plaintiff. However, defendant admits that the bylaws of January 2, 1961 gave the Superintendent the power to suspend all employees, subject to the approval of the Department of Purchasing and Public Property. In addition, the defendant sets up a number of separate defenses alleging that the appointment of the plaintiff to serve at the pleasure of the Superintendent of Public Works was illegal and Ultra vires; that it was illegal and void Ab initio; that said appointment to serve at the pleasure of the Superintendent of Public Works was an illegal, unwarranted and improper delegation of a legislative function; that the appointment of defendant Edward A. Roesel was valid, legal and permissive; that the removal of the plaintiff was in consonance with the law; that any allegation that the prior litigation arose from the same set of facts and involved common and similar questions of law was erroneous, misleading, immaterial and irrelevant, and the disposition of the same is not binding on this court; that the Superintendent of Public Works never had the power to dismiss an employee, but merely had the power to suspend employees, subject to the approval of the proper committee or department; that the power to employ or dismiss remains and resides with the appointing authority, the defendant Board of Chosen Freeholders of the County of Union.

Substantially the same allegations by way of defense were set out in the answer filed in behalf of the defendant Edward A. Roesel.

The issues are: Did the defendant Board of Chosen Freeholders of Union County have the legal right to remove the plaintiff from his position and appoint defendant Roesel in his place and stead?

The plaintiff introduced into evidence the following resolutions:

The resolution adopted by the board of freeholders on December 22, 1960 appointing plaintiff Michael La Polla as secretary to the Superintendent of Public Works at the salary of $7,495 per annum, effective December 22, 1960. The resolution further provided that said appointee was to serve at the pleasure of the Superintendent of Public Works.

Resolution adopted by the board of freeholders on January 2, 1961 rescinding the appointment of Michael La Polla and terminating his services as secretary to the Superintendent of Public Works.

Resolution of January 2, 1961 adopted by the board of freeholders appointing Edward A. Roesel as secretary to the Superintendent of Public Works of the County of Union at the salary of $7,495 per annum, effective January 1, 1961.

The by-laws of the board of free-holders setting out the duties of the Superintendent of Public Works, among which was the power to suspend all employees under his supervision subject to the approval of the proper committee or department.

The plaintiff definitely was qualified for the post to which he was appointed. At the conclusion of the trial, however, this court denied the plaintiff's claim that he was entitled to Civil Service protection. The evidence introduced indicated that the plaintiff--in effect--was appointed for an indefinite term and was placed by the Civil Service Department in the unclassified status, and was in no way subject to the protection of the Civil Service statutes. This court further held that there was no evidence that the plaintiff had acquired tenure under the provisions of any other statute, and thus the protection afforded by the Civil Service statutes did not apply to him. See N.J.S.A. 11:22--2; Mensone v. N.J. Dept. of Civil Service, 30 N.J.Super. 218, 104 A.2d 67 (App.Div.1954); Gallena v. Scott, 136 N.J.L. 70, 54 A.2d 481 (Sup.Ct.1947); Rules 7 and 59 of the Civil Service Regulations.

Decision was reserved as to the other questions raised at the trial.

I.

The defendants contend that the board of chosen freeholders had the authority to remove the plaintiff under the provisions of R.S. 40:21--4, N.J.S.A. which provides as follows:

'The board of chosen freeholders may, by a majority vote of all its members, remove from office any person holding office in subordination to or by appointment from such board where the term of office is not fixed by law.'

The plaintiff, however, contends that the above section relating to removals cannot be read in complete context without referring to R.S. 40:21--3, N.J.S.A. immediately preceding it--which provides as follows:

'In addition to the officers and employees whose appointment is specifically provided for by law, the board of chosen freeholders may appoint or provide for the appointment of such other officers, agents and employees as may be required for the execution of the powers conferred upon said board or any board or officer within the county.'

Thus the plaintiff contends that R.S. 40:21--3, N.J.S.A. authorizes the board of freeholders to appoint officers, agents and employees, whereas R.S. 40:21--4, N.J.S.A. only authorizes the board to remove from office any person holding office and does not apply to employees and agents, and since the plaintiff is an employee and not the holder of an office, R.S. 40:21--4, N.J.S.A. is not applicable.

According to the evidence, the duties of secretary to the Superintendent of Public Works consist of administrative duties, clerical work, handling of men and clerical records, and on occasion to 'take hold of the whole office, other than the administration of it for a while'; keeping work records and absentee records and sick leave records; delegating jobs or functions through the foreman and men themselves when necessary; checking on the night force and responsibility for their activities; responsibility for the supervision and maintenance of the building (court house) as far as the help was concerned; acting as Superintendent of Public Works in the absence of the Superintendent, but not having the responsibility of the Superintendent; relaying commands to subordinates and employees of the office.

A review of the applicable case law leads to the conclusion that some of the duties performed by the secretary to the Superintendent of Public Works relate to those of an office. The duties to be performed, not the mode of appointment, constitutes the test of his being a public officer. Is he concerned with the administration of public duties? Are his duties 'governmental' in nature? Is he invested with any position of political power partaking in any degree in the administration of civil government and performing...