Russo v. Governor of State of New Jersey
Decision Date | 25 June 1956 |
Docket Number | No. A--150,A--150 |
Parties | Louis J. RUSSO, Appellant, v. THE GOVERNOR OF THE STATE OF NEW JERSEY, Respondent. |
Court | New Jersey Supreme Court |
George Pellettieri, Trenton, for appellant (Pellettieri & Rabstein, Trenton, attorneys).
Harold Kolovsky, Asst. Atty. Gen., for respondent (Grover C. Richman, Jr., Atty. Gen., John F. Crane, Trenton, on the brief).
The opinion of the court was delivered by
This is an appeal from an order of the Governor removing Louis J. Russo from his position as Assistant Chief Examiner in the Department of Civil Service for misconduct in office while he held the position of Chief Examiner and Secretary. The order was made pursuant to an exercise of the authority granted to the Governor by Article V, Section IV, paragraph 5 of the Constitution which provides:
An appeal was taken from the order of removal to the Appellate Division of the Superior Court as authorized by the statute implementing the constitutional provision, N.J.S.A. 52:14--17.2, and we then certified the matter on our own motion while it was pending there.
On March 18, 1954 the Governor appointed H. Norman Schwarzkopf to investigate into the management and affairs of the Division of Employment Security in the Department of Labor and Industry. As a result of that inquiry evidence was obtained tending to indicate misconduct on the part of Russo in the submission by him to the Division of Employment Security of vouchers for alleged overtime work for that division while he was employed by the Department of Civil Service. These invoices resulted in the payment to him of $1,000 a year during the period from July 1, 1948 to June 30, 1953. He was suspended from his position by executive order on June 18, 1954, pending the hearing and determination of the charges against him. The propriety of that action by the Governor was considered by this court and upheld in Russo v. Walsh, 18 N.J. 205, 113 A.2d 516 (1955).
The formal charges against Russo alleged that in his official capacity as Chief Examiner and Secretary Russo 'did commit malfeasance in office founded on improper and illegal conduct' and 'did commit acts amounting to misconduct and misfeasance in his official capacity founded upon his breach of good faith, trust and right action impliedly required of his official position and upon the performance of his official duties as said Chief Examiner and Secretary in the Department of Civil Service, in an improper and illegal manner.' The specifications alleged the submission of invoices for overtime services to the extent of $5,000 'while employed as Chief Examiner and Secretary and/or Assistant Chief Examiner' and that his acts 'were fraudulently, wilfully, unlawfully and knowingly committed * * * and constituted malfeasance and misfeasance in his said official capacity.' Further specifications charged Russo with not having performed the services for which he had billed the State and that he was not entitled to receive any such payments in any of the capacities in which he was employed by the State. The charge that Russo had not performed these overtime services was abandoned at the hearing and the Governor's finding of misconduct was limited to the period during which Russo held the position of Chief Examiner and Secretary.
The Governor appointed Mr. Augustus C. Studer, Jr., of the New Jersey bar, to conduct a hearing on the charges and report his findings to the Governor together with his recommendations. At the conclusion of the Governor's case counsel for Russo moved for a dismissal of the charges, and the introduction of the defendant's case was held in abeyance pending the determination of that motion. Mr. Studer then submitted his report to the Governor, recommending that the motion be granted and the charges dismissed. Mr. Studer's findings were in part as follows:
Exceptions to this report were filed by counsel for the Governor and thereafter oral argument on those exceptions were heard by the Governor personally. The Governor sustained the exceptions and denied the defendant's motion to dismiss.
In his determination the Governor held that the payments to Russo were clearly illegal; that as Chief Examiner and Secretary Russo's salary was to be 'as provided in the annual appropriation law,' (R.S. 11:2--1, N.J.S.A.) and that as such Chief Examiner and Secretary he could 'hold no other public office or employment' except as an unpaid officer 'or as director of any quasi-public or other corporation,' (R.S. 11:2--2, N.J.S.A.); that Russo's position that he did not violate the law was unsustainable either on the basis that he performed services for the Department of Employment Security apart from his duties as Chief Examiner or on the basis that he performed them in the discharge of his official duties as Chief Examiner, holding that on the first basis he would violate R.S. 11:2--2, N.J.S.A. and on the second basis he would violate R.S. 11:2--1, N.J.S.A. The Governor held that although the statutory authority for overtime pay prior to the passage of Chapter 51, Laws of 1951, N.J.S.A. 52:14--17.13 to 17.15, was obscure, the committee created by that act set up regulations for the exclusion from overtime payments any position for which the work week was classified as 'indefinite.' He held that Russo plainly came within that class and therefore overtime pay for him as Chief Examiner and Secretary was clearly foreclosed.
Mr. Studer was then relieved from any further duties in the case and the hearing of the balance of the proceedings, the defendant's case, was conducted before the Governor personally.
Initially, in the proceedings before the Governor's appointee, Russo made application for an extensive inspection of certain documents and records of the State pertaining in some respects to the matters in issue. That relief was neither granted nor withheld. After the Governor took over the hearing of the matter personally, and prior to the hearing of the defendant's case, counsel for Russo made application to the Governor seeking the inspection and production of records of the Department of Civil Service and other state departments dealing with the matters upon which Russo's claims for overtime services were based and dealing also with the records of payments for overtime services made to other state employees for performing work in connection with the administration of this system. The application was generally granted but was limited to the matters relating specifically to Russo. In his letter opinion the Governor stated:
Thereafter, the defendant sought the...
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