Smith v. Board of Chosen Freeholders of Bergen County

• Citation: 353 A.2d 153,139 N.J.Super. 229
• Parties: Amos SMITH, Plaintiff, v. BOARD OF CHOSEN FREEHOLDERS OF the COUNTY OF BERGEN et al., Defendants. . Law Division
• Decision Date: 30 January 1976
• Court: Superior Court of New Jersey

Page 229

139 N.J.Super. 229

353 A.2d 153

Amos SMITH, Plaintiff, v. BOARD OF CHOSEN FREEHOLDERS OF the COUNTY OF BERGEN et al Defendants.

Superior Court of New Jersey.

Law Division.

Jan. 30, 1976.

Leonard J. Felzenberg, Newark, for plaintiff (Hodes, Felzenberg & Randall, Newark, attorneys).

Leon B. Savetsky, Asst. Bergen County Counsel, Teaneck, for defendants.

LESTER, J.S.C.

I have before me defendant's motion for summary judgment. The facts are not at issue. Plaintiff was summarily dismissed from his employment as a private clerk, public safety education, on February 21, 1975, a position plaintiff had held since January 4, 1970. As a certified exempt fireman, plaintiff asserts that he was entitled to a formal hearing prior to termination, under the provisions of N.J.S.A. 40A:14--60--64. Defendant, however, contends that the position of private clerk falls within the unclassified Civil Service categories (N.J.S.A. 11:22--2(m)) and is not protected by the exempt firemen's tenure statutes.

N.J.S.A. 40A:14--60 and 64 provide:

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

For the purposes herein no term of office, position or employment of any such person shall be deemed to be fixed by law or coterminous with that of a non-continuous appointing or employing board or body; provided, however, that in no event is it intended that this provision shall apply to appointments made for a fixed or stated period of time.

Any hearing for removal of an exempt fireman shall be upon a written complaint setting forth the charge or charges and filed with the authority in charge. A copy thereof shall be served upon the person so charged with notice of the time and place of the hearing thereon. The person so charged shall have the right to be represented by counsel and to subpoena witnesses and documentary evidence. (N.J.S.A. 40A:14--60)

Whenever an exempt fireman holds a State, county, municipal or a board of education 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 consecutive years. (N.J.S.A. 40A:14--64)

The exemption certificates and veteran's and firemen's tenure acts have existed for many years and are 'identical in form and substance.' Maxwell v. Wildwood, 111 N.J.L. 181, 184, 168 A. 143 (Sup.Ct.1933). The earlier version of the firemen's tenure statute was construed in Grimm v. Sussex Bd. of Chosen Freeholders, 118 N.J.L. 210, 192 A. 424 (Sup.Ct.1937), where the court found that

It is quite clear also that one holding a position, the term of which is not fixed by law and receiving a county salary, is protected under the statute from discharge without good cause being shown if he is the holder of an exemption certificate issued to him as a member of a volunteer fire department. (at 211, 192 A. at 424)

Plaintiff was employed by defendant for over five years, longer than the statutory minimum for tenure, and has met all other prerequisites of N.J.S.A. 40A:14--60 Et seq.

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. (Muccio v. Cronin, 135 N.J.Super. 315, 320, 343 A.2d 158, 161 (Law Div.1975))

It is, however, necessary to examine the decisions which have limited the rights of parties seeking protection under the tenure acts. In Cetrulo v. Byrne, 31 N.J. 320, 157 A.2d 297 (1960), plaintiff had been employed as a legal assistant by the Essex County Prosecutor. Cetrulo was summarily removed from his position, which the court deemed to be 'confidential.' Plaintiff also acknowledged that

of necessity, for the proper functioning of these high offices the incumbent must have free rein to select and remove his very close associates, to whom he entrusts sensitive and private confidences. * * * (at 332, 157 A.2d at 303)

The court went on to point out that

* * * if the county prosecutor is to discharge his enforcement responsibilities effectively, his legal assistants should have his full trust and confidence in the same manner and to the same extent as do his assistant prosecutors; * * *. (at 332, 157 A.2d at 303)

In Brennan v. Byrne, 31 N.J. 333, 157 A.2d 303 (1960), decided the same day as Cetrulo, the court extended its ruling to prosecutor's investigators for essentially the same reasons.

In Greenfield v. Passaic Valley Sewerage Comm'rs, 126 N.J.L. 171, 17 A.2d 489 (Sup.Ct.1941), an exempt fireman who was appointed to a statutory five-year term as a sewer commissioner claimed tenure at the end of the term under what later was to be known as N.J.S.A. 40:47--63. The court decided otherwise, holding that the statute was not intended to give, and did not give, tenure to occupants of offices which are for a period of time definitely fixed by the legislature.

In Allgaier v. Woodbridge Tp., 5 N.J.Super. 21, 68 A.2d 326 (App.Div.1949), tenure as a building inspector was denied an exempt fireman who had held the office continually for about 13 years under only one appointment. See also, Smith v. Matawan, 126 N.J.L. 585, 20 A.2d 516 (Sup.Ct.1941), aff'd 129 N.J.L. 100, 28 A.2d 119 (E. & A.1942), where an exempt fireman was denied tenure to a position to which he had been reappointed each year for many years.

These and many other cases have denied tenure under factual situations asimilar to the one now before the court.

In Perrella v. Board of Education of Jersey City, supra, 51 N.J. 323, 240 A.2d 417 (1968) this court held that the Chief Administrative Counsel in the Legal Department of the Jersey City Board of Education, although a war veteran holding a position not for a fixed term, was not entitled to tenure in office under the Veterans' Tenure Act. The substantial basis of that holding was that the civil service statutes superseded the earlier veterans' tenure legislation to the extent that they were inconsistent and reflected antagonistic policies with relation to the subject of tenure; and that Perrella's position was in the unclassified service, under N.J.S.A. 11:22--2 e. and k., a category of service devoid of tenure rights. * * *

Notwithstanding the expressed rationale of Perrella, as just quoted, the Appellate Division did not regard that decision as 'removing from the protection afforded by N.J.S.A. 38:16--1 Et seq. all persons holding positions in the unclassified service'. However, N.J.S.A. 11:22--2 expressly states that, 'The unclassified service shall not be subject to the provisions of this subtitle * * *.' The most salient provision of the subtitle is tenure. N.J.S.A. 11:22--11.1. We therefore herewith make it clear, if Perrella left any doubt about it, That the legislative supersession of veterans' tenure pro tanto by the later enactment of civil service legislation excluding from tenure rights those in the unclassified service, extends in logic and policy to all persons in that category of the public service. (Schroeder v. Essex Cty. Bd. of Freeholders, 63 N.J. 124, at 125, 126, 127, 305 A.2d 409, 410 (1973); emphasis supplied)

Although it has been amended numerous times since originally enacted in 1908 (L.1908, c. 156, § 11), the language of the unclassified civil service statute relevant to the job of private secretary came in 1948 (L.1948, c. 121, § 5), when the Legislature added subsections (j) through (o) to N.J.S.A. 11:22--2. Plaintiff is neither the holder of a position with a fixed term nor was he reappointed on a yearly (or other) regular basis, as in the Greenfield or Allgaier cases. He is and has been employed as a clerk in an unclassified civil service status for more than five years.

The Bergen County Director of Personnel seeks to justify plaintiff's termination from 'temporary employment' without the necessity of showing 'good cause after a fair and impartial hearing.' N.J.S.A. 40A:14--60. Thus, the question as posed by defendant:

The threshold question on this motion, therefore, is the effect of the 1971 revision and whether it in any way granted tenure protection to exempt firemen in the unclassified service.

Plaintiff argues that the 1971 legislation was merely a revision of a pre-existing tenure act; that the prevailing principles of statutory construction indicate no change in the breadth or substance of the prior statutes, and that the cases of Muccio v. Cronin, supra; Bialkowski v. Ridgefield, 118 N.J.Super. 354, 287 A.2d 479 (Law Div.1972), aff'd 120 N.J.Super. 194, 293 A.2d 671 (App.Div.1972), and Caldwell v. Rochelle Park Tp., 135 N.J.Super. 66, 342 A.2d 583 (1975), all mitigate to the end that there was no change of substance in the statutory scheme. Defendant then points out that N.J.S.A. 40A:1--5 states that

The provisions of Title 40A not inconsistent with those of prior laws shall be construed as a continuation of such laws.

Thus, defendant concludes that the Legislature...