Rosetty v. Township Committee of Hamilton Tp., Mercer County

• Decision Date: 20 January 1964
• Docket Number: No. L--19547,L--19547
• Citation: 82 N.J.Super. 340,197 A.2d 600
• Parties: Daniel B. ROSETTY, Plaintiff, v. TOWNSHIP COMMITTEE OF TOWNSHIP OF HAMILTON, in the COUNTY OF MERCER, a body politic in the State of New Jersey, Defendant.
• Court: New Jersey Superior Court

Page 340

82 N.J.Super. 340

197 A.2d 600

Daniel B. ROSETTY, Plaintiff, v. TOWNSHIP COMMITTEE OF TOWNSHIP OF HAMILTON, in the COUNTY OF

MERCER, a body politic in the State of New Jersey,

Defendant.

No. L--19547.

Superior Court of New Jersey

Law Division.

Jan. 20, 1964.

Pellettieri & Rabstein, Trenton, for plaintiff.

William A. Dietrich, Princeton, for defendant.

BARLOW, J.C.C. (temporarily assigned).

This is an action to recover back salary which plaintiff alleges is due and owing to him by defendant Township Committee of Township of Hamilton (hereinafter referred to as Township Committee).

On January 1, 1959 plaintiff, DANIEL B. ROSETTY was duly appointed as the Building Inspector of defendant Township Committee, as then constituted, for the term of four years, with an annual salary of $7752.00.

On June 29, 1961 the defendant, Township Committee, at a special meeting, passed the following resolution:

'WHEREAS, charges have been made against Daniel B. Rosetty, Building Inspector of the Township of Hamilton in the County of Mercer and State of New Jersey, alleging that he did violate R.S.N.J. 2A:93--6 in that the obtained money in violation of the provisions of said Statute; and * * *

THEREFORE, BE IT RESOLVED by the Township Committee that the said Daniel B. Rosetty be suspended as Building Inspector of said Township of Hamilton pending determination of said charges which said suspension shall be effective immediately.'

Thereafter, by letter dated July 5, 1961, plaintiff was informed of his suspension, effective that date. He has not been paid, nor has he received any salary from and after that date.

Thereafter, the defendant apparently took no further steps, presumably awaiting the outcome of the criminal charges so instituted against the plaintiff. It was not until March 20, 1962 that the charges against the plaintiff were presented to the Grand Jury, which body declined to indict him, returning a 'no bill' on that date. Plaintiff received no formal notice of the Grand Jury's action, although it is clear that informally he was aware of the Grand Jury's disposition thereof.

The plaintiff did not present himself for work or demand reinstatement at that time, nor did the defendant advise or direct him to return to work following the Grand Jury's determination. Indeed, it appears nothing was done by either party for more than four months, or until July 30, 1962, when, at a special meeting of the Township Committee, the then township solicitor was instructed to prepare charges against plaintiff with an end to effecting his removal from office. The resolution, directing the preparation of charges, referred to the prior suspension of plaintiff and recited that such suspension was due to the fact that the plaintiff had been charged with a crime in that he had obtained money in violation of the provisions of N.J.S. 2A:93--6, N.J.S.A. The resolution did not, however, make any reference to a further suspension of plaintiff based on the new charges the defendant had directed its solicitor to prepare.

The charges were duly prepared, and were served upon the plaintiff on August 1, 1962. The charges allege that the plaintiff failed to perform the duties of Building Inspector either by:

'* * * wilful act or by negligence in violation of the ordinance creating the position of Building Inspector * * * and/or violation of the Standard Building Code of New Jersey and the rules adopted pursuant thereto, which said Code has been adopted by the Township of Hamilton * * *'.

Following that generalized description of the charges, there were recited seven specific instances in which the defendant alleged that the plaintiff had been guilty of a wilful act or negligence with respect to his official duties. All of the specific charges referred to alleged acts which took place prior to July 5, 1961, the date of the original suspension of plaintiff.

The charges thus preferred also contained the admonishment directed to the plaintiff that 'unless you satisfactorily explain or defend the above charges you will be subject to the penalty of removal from office effective June 29, 1961,' which, it will be noted, was the date of the adoption of the original resolution reciting the suspension of the plaintiff for alleged criminal activity.

The specification of charges designated August 14, 1962 as the date upon which such charges would be heard, and apprised the plaintiff of his right to file an answer and of his right to appear and make his defense to these charges. On August 10, 1962 plaintiff filed an answer denying all of the charges and asserting separate defenses thereto. The hearing was thereafter continued to September 17, 1962, in order to afford plaintiff time within which to propound and serve interrogatories upon the defendant.

The plaintiff prepared interrogatories, which were served upon the defendant, but, for reasons not clear, answers to such interrogatories were not supplied, and the hearing was once again continued, apparently without date, and no date has since been fixed and no hearing has yet been held.

On December 31, 1962 the plaintiff's term expired and he was not reappointed. The plaintiff thereafter instituted this action to recover back salary, and now moves for summary judgment.

N.J.S.A. 40:46--34 provides, in part, as follows:

'Whenever a municipal officer or employee, including any policeman or fireman, has been or shall be illegally dismissed or suspended from his office or employment, and such dismissal or suspension has been or shall be judicially declared illegal, he shall be entitled to recover the salary of his office or employment for the period covered by the illegal dismissal or suspension; provided, that a written application therefor shall be filed with the clerk of the municipality within thirty days after such judicial determination, * * *.'

There can be no quarrel with the propriety of the original suspension of the plaintiff, resulting, as it did, from the filing of a criminal complaint against the plaintiff.

However, while the supension of a municipal officer may be in all respects proper and legal at its inception, subsequent events may render that suspension illegal Ab initio. See Strohmeyer v. Borough of Little Ferry, 6 N.J.Super. 282, 71 A.2d 141 (App.Div.1950); Rozmierski v. City of Newark, 42 N.J.Super. 14, 125 A.2d 747 (Law Div.1956); Graham v. City of Asbury Park, 69 N.J.Super. 256, 174 A.2d 244 (App.Div.1961), affirmed, 37 N.J. 166, 179 A.2d 520 (1962); D'Ippolito v. Maguire, 33 N.J.Super. 477, 111 A.2d 78 (App.Div.1955). Furthermore, it is equally clear that, pending the disposition of the criminal charges made against plaintiff, the defendant was not required to afford the plaintiff a hearing, since the undisposed of charges, which form the basis of the suspension, were criminal and not departmental in nature. See Graham v. City of Asbury Park, supra. It seems clear that the moment the criminal charges were disposed of--such charges being the only announced basis for the suspension--by the disinclination of the Grand Jury to indict the plaintiff, and by the consequential dismissal of the complaint, the defendant was duty-bound immediately to advise the plaintiff that his period of suspension was terminated and that he was reinstated, or, if departmental charges were pending, or were contemplated to promptly apprise plaintiff of these charges and to advise him that his suspension was continued by reason thereof. Moreover, if departmental charges were to be made, it was incumbent upon the defendant to move expeditiously for a hearing and the ultimate disposition of such charges.

By defendant's failure to either reinstate the plaintiff or advise him of contemplated departmental charges, the original suspension of the plaintiff, having no foundation upon which to rest, became ineffective and thereby illegal, within the fair intendment of the Legislature, as reflected by the language of N.J.S.A. 40:46--34.

The suspension of the plaintiff having become illegal, it remained illegal until August 1, 1962, when departmental charges were finally preferred and served upon plaintiff.

While it is true that the specification of charges served upon the plaintiff attempted to make the plaintiff's suspension by reason of such departmental charges retroactively effective, and to relate the suspension back nearly thirteen months to the date of the original suspension, which had long since expired, such an attempt to revive and breathe life into what had become an illegal suspension is clearly ineffectual.

The defendant insists, however, that when the initial suspension, although valid when instituted, was subsequently rendered illegal when the Mercer County Grand Jury returned a 'no bill' and thereby dismissed the charges contained in the complaint, such action on the part of the Grand Jury constituted a 'judicial determination,' and that the plaintiff, if he is to recover salary due him for the period of such illegal suspension, must have filed a 'written application' therefor within 'thirty days after such judicial determination,' and that the plaintiff, having failed to heed that requirement of the statute, is not entitled to recover such back salary.

Clearly, the action of the Mercer County Grand Jury in returning a 'no bill' did not constitute a 'judicial determination' within the plain intendment of the act. A ...