Young v. Civil Serv. Comm'n

• Decision Date: 10 November 1941
• Docket Number: No. 248.,248.
• Citation: 127 N.J.L. 329,22 A.2d 523
• Parties: YOUNG v. CIVIL SERVICE COMMISSION et al.
• Court: New Jersey Supreme Court

22 A.2d 523

127 N.J.L. 329

YOUNG

v. CIVIL SERVICE COMMISSION et al.

No. 248.

Supreme Court of New Jersey.

Nov. 10, 1941.

Proceeding by Henry Young, Jr., Sheriff of Essex County, for a writ of certiorari to review a determination of the Civil Service Commission, setting aside prosecutor's dismissal of Joseph Katowitz from the position of Secretary to the Sheriff and ordering his reinstatement.

Writ dismissed.

Argued October term, 1940, before CASE, DONGES, and HEHER, JJ.

Arthur T. Vanderbilt and G. Dixon Speakman, both of Newark, for prosecutor.

Charles E. McCraith, Jr., of Newark, for defendants.

DONGES, Justice.

This writ of certiorari brings up for review a determination of the Civil Service Commission setting aside the dismissal by the prosecutor, sheriff of Essex County, of the defendant Joseph Katowitz from the position of secretary to the sheriff, and ordering his reinstatement.

Katowitz was appointed by the sheriff who immediately preceded prosecutor in office. The practice had been for an incoming sheriff to appoint a new secretary and for the secretary of an outgoing sheriff to relinquish his position at the end of the sheriff's term. When Sheriff Young took office he designated Katowitz as acting executive clerk and appointed one Edith Nieburg as his secretary. Katowitz took leave of absence from his position as secretary. Upon the making of a permanent appointment to the position of executive clerk, following an examination, Katowitz was required to relinquish this position and thereupon demanded to be reinstated as secretary, claiming the protection of the Civil Service Law.

The Civil Service Commission determined that the position of secretary to the sheriff was in the exempt class of the civil service, that Katowitz could not be dismissed from his position except for just cause, that his dismissal was improper and that he should be reinstated.

The position of secretary to the sheriff was classified by the Board of Freeholders of Essex County in 1920 and the classifica tion was approved by the Civil Service Commission. The duties were defined, qualifications set out and the salary fixed.

The first point argued is that the position in controversy is that of confidential secretary to a state officer and the holder thereof is in the unclassified service. The argument is that the sheriff is a constitutional officer of the state at large and not of the county, and therefore he may appoint a confidential secretary under the civil service act dealing with the state service. But it has been held by the Court of Errors and Appeals in Sullivan v. McOsker, 84 N.J.L. 380, 86 A. 497, that an appointee of the sheriff (in that case a jail warden) is an employee in the service of the county coming within the purview of the civil service law as it pertains to counties. By no method of reasoning, as we view it, can the present case be distinguished in that regard. There is no merit in this point.

The next point is that in providing for the position of private secretary the legislature intended that the tenure was subject to the will of the appointing authority and coterminous with his incumbency. It is argued that the only provision for this position, if it is not one in the state service, is R.S. 11:22-26, N.J.S.A. 11:22-26, which provides:

"The exempt class of the classified service shall include: * * *

"d. One private secretary or clerk or stenographer of each judge or principal executive officer; * * *."

We agree that this is the statutory authority for the existence of the position in question, but by this provision the position is placed in the exempt class of the classified service. By another section, R.S. 11:22-2, N.J.S.A. 11:22-2, certain positions in the county and municipal civil service were placed in the unclassified service. Prosecutor's contention, in effect, would make this position one in the unclassified service, but the action of the legislature in placing the position in the exempt class is a direction that the position be within the classified service.

The third and fourth points may be considered together. The third is that, assuming defendant is in the exempt class, the commission had no jurisdiction because there is no provision for appeals by persons in the exempt class from dismissal. The fourth is that, assuming defendant is in the exempt class and had a right to appeal, the commission may take jurisdiction...