Thomas v. McGrath

• Citation: 145 N.J.Super. 288,367 A.2d 898
• Parties: Russell W. THOMAS, Plaintiff-Appellant, v. Edward W. McGRATH, Union County Prosecutor and the Board of Chosen Freeholders of the County of Union, Defendants-Respondents.
• Decision Date: 01 December 1976
• Court: New Jersey Superior Court – Appellate Division

Page 288

145 N.J.Super. 288

367 A.2d 898

Russell W. THOMAS, Plaintiff-Appellant, v. Edward W. McGRATH, Union County Prosecutor and the Board of

Chosen Freeholders of the County of Union,

Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued Oct. 5, 1976.

Decided Dec. 1, 1976.

Kenneth J. Grispin, Scotch Plains, for plaintiff-appellant (Read, Leib, Kraus & Grispin, Scotch Plains, attorneys; Walter L. Leib, Scotch Plains, of counsel).

Walter M. Korchun, Administrative Asst., Union County Prosecutor, Westifield, for respondent Prosecutor of Union County.

Edward J. Toy, Asst. County Counsel, Cranford, for respondent Bd. of Chosen Freeholders.

Before Judges BISCHOFF, MORGAN and COLLESTER.

The opinion of the court was delivered by

BISCHOFF, P.J.A.D.

Plaintiff appeals from a judgment dismissing his complaint wherein he sought a judgment declaring that he had been appointed to the position of sergeant of county detectives and for injunctive relief.

On or about July 27, 1970 plaintiff was appointed to the staff of the Union County Prosecutor as a county investigator, an unclassified Civil Service position. In May 1972, having passed a Civil Service examination for the position of county detective and having otherwise qualified, plaintiff was appointed to the position of county detective, a classified Civil Service position.

On or about January 27, 1975 plaintiff was appointed provisional sergeant of county detectives by Karl Asch, the then Prosecutor of Union County. Plaintiff thereafter took a competitive examination for the position of sergeant of county detectives and, by notice dated April 4, 1975, was informed he had passed the examination and, in fact, ranked first of all candidates taking the examination.

By letter dated April 21, 1975 addressed to Prosecutor Asch, plaintiff acknowledged receipt of 'Civil Service CS 9 form' notifying him that he had been certified for the position of sergeant of county detectives and indicated he was willing and anxious to accept the position should the prosecutor choose to appoint him.

There existed four vacancies for the position of sergeant of county detectives and, accordingly, the Civil Service certified the names of six persons eligible for appointment. This certification to the prosecutor, dated April 17, 1975, was made by forwarding to him a form entitled 'Certification of Eligibles for Appointment' and known as CS 10.

On April 23, 1975 Prosecutor Asch completed form CS 10 by inserting opposite the name of plaintiff, who was number one on the list, plaintiff's serial number, the location of the department and the division where he was to work, and the salary he was to be paid. He did the same for three other men and signed the form.

Instructions printed on the form provided, 'answer certification completely within 15 days on the carbon copy,' and further, 'Note you are requested to notify the eligibles of the time and place to report for an interview and advise the Department of Civil Service at the address checked below of the disposition of the certification and the appointments made.'

The parties agree that normal procedure requires the prosecutor to forward this certification, when completed, to the Department of Civil Service. This was not done in this instance. Instead, a carbon copy of the completed form was forwarded to the board of chosen freeholders on April 23, 1975. Normal procedure also requires the appointing authority to initiate a request for personnel action so that the appointee may be paid. This is done by forwarding to the freeholders a form designated CS 6. Such form was not completed or forwarded by Prosecutor Asch with respect to the appointees listed on the CS 10 form.

On April 25, 1975 defendant McGrath succeeded Asch as Prosecutor of Union County. He withdrew form CS 10 from the board of freeholders and on or about June 17, 1975 altered the form by striking over the designation of plaintiff as an appointee and designating instead Robert L. Rowland, another of the six certified as eligible. He crossed out Asch's signature, signed it on June 17, 1975 and forwarded it to the Department of Civil Service. CS 6 was also completed at this time by McGrath as to Rowland and the others, forwarded to the board of freeholders, and approved by them.

Plaintiff instituted this action in lieu of prerogative writs, contending he had been appointed sergeant of county detectives by Asch; that it was improper for McGrath to withdraw CS 10, to alter it by striking out his name and to attempt to appoint Rowland in his place. He sought an injunction against (a) the administration of the oath of office to Rowland, (b) McGrath returning plaintiff to his permanent position of county detective and (c) reducing his salary.

Plaintiff's complaint was filed June 30, 1975, together with a supporting affidavit. The complaint was accompanied by an application for temporary relief. An order to show cause was granted, returnable later the same day. Upon the return of the order to show cause the trial judge heard argument, denied the application for injunctive relief and dismissed the complaint, entering judgment for defendant. Plaintiff filed a motion for reargument, which was also denied. Plaintiff appeals from the judgment dismissing the complaint.

Plaintiff contends his appointment was made when Prosecutor Asch completed and signed the CS 10 form on April 23, 1975.

Defendant, on the other hand, contends that plaintiff's appointment was contingent upon approval by the Department of Civil Service following receipt of the CS 10, and upon the approval of the board of freeholders following receipt of CS 6.

The power to appoint county detectives and sergeants of county detectives is vested by statute in the county prosecutor. N.J.S.A. 2A:157--2; N.J.S.A. 2A:157--4. The only qualification on his power of appointment is that the person so appointed shall be in the classified service of the Civil Service. The fact that appointments, otherwise legal, are made in the waning days--or even waning hours--of a prosecutor's term of office is irrelevant. Robinson v. Kreischer, 97 N.J.Super. 104, 113--114, 234 A.2d 496 (Ch.Div.1967), aff'd o.b. 101 N.J.Super. 482, 244 A.2d 699 (App.Div.1968); Bakely v. Nowrey, 68 N.J.L. 95, 52 A. 289 (Sup.Ct.1902), aff'd 68 N.J.L. 732, 54 A. 833 (E. & A. 1903).

We reject defendant's contention that N.J.S.A. 11:21--1 requires compliance with all the rules and regulations promulgated by the Department of Civil Service and approval by that Department before an appointment is validly made. That statute provides:

No appointing authority shall select or appoint a person for appointment, employment, promotion or reinstatement except in accordance with this subtitle and the rules and regulations prescribed thereunder.

The rules and regulations referred to therein do not pertain to the manner of appointment. Rather, they refer to the qualifications of the person to be appointed or the class from which an appointment or promotion can be made. Such considerations are not applicable here.

Civil Service regulations provide that after receipt of a certification from the list of eligibles the appointing authority shall 'appoint one of the three eligibles from the employment list' and 'notify the Department of Civil Service of the disposition of the certification within 15 days after receipt of the certification.' N.J.A.C. 4:1--12.15.

Regulations pertaining to this report of the appointing authority (N.J.A.C. 4:1--12.18) do not provide that an appointment is conditioned upon making the report to the Department of Civil Service or approval of the appointment by that Department. The necessity for compliance by the appointing authority with certain rules and regulations of the Department of Civil Service does not qualify or restrict the statutory power of appointment. Rules and regulations designed and adopted to insure that an appointee is qualified, a member of the class entitled to the appointment or promotion, and properly placed on the payroll, are administrative details required to implement an appointment.

The exercise of the appointing power vested in the prosecutor by statute is not subject to approval by either the board of freeholders or the Department of Civil Service. Cf. Cetrulo v. Byrne, 31 N.J. 320, 328--329, 157 A.2d 297 (1960); Muccio v. Cronin, 135 N.J.Super. 315, 343 A.2d 158 (Law Div.1975).

However, we do not agree with plaintiff that his appointment was necessarily completed when Prosecutor Asch signed CS 10. Plaintiff's right to relief necessarily turns on a determination of whether the action of Prosecutor Asch met, at the least, the minimal requirements for making a valid appointment.

The statute authorizing appointments by the prosecutor does not prescribe any method by which appointments are to be made or the performance of any formal ceremony, such as the taking of the oath of office, as a condition precedent to the assumption of the position by the appointee. N.J.S.A. 2A: 157--2, 4. 'Appointment' is defined in the Administrative Code, N.J.A.C. 4:1--2.1, as follows: '(T)he offer and acceptance of a position of either a permanent or temporary basis.' It is elsewhere noted that 'an appointment is complete when the last act required of the appointing power has been performed.' 3 McQuillin, Municipal Corporations (3 ed. 1973), § 12.86.

Obviously, some overt act beyond the existence of an uncommunicated intention to appoint an individual to a position is required. However, such act need not partake of any particular form or formality. It could consist of a written or oral communication to the appointee notifying him of the action or, under some circumstances, a...