Cetrulo v. ByrneCetrulo v. Byrne
The Law Division, for the reasons expressed in its opinion reported at 55 N.J. Super. 199 (1959), granted the defendants’ motions for dismissal and summary judgment. The plaintiff appealed to the Appellate Division and while his appeal was pending there we certified it on our own motion.
On June 28, 1956 the Board of Chosen Freeholders of Essex County adopted a resolution appointing the plaintiff Don A. Cetrulo “to the position of Legal Assistant Prosecutor at the salary range heretofore fixed for said position to commence at the minimum salary of $5,040.00 per annum effective July 16, 1956, to serve until further action of this Board.” Mr. Cetrulo served in the Essex County Prosecutor‘s office under Prosecutor Webb who resigned effective February 16, 1959. He was duly notified by Deputy Attorney General Byrne (who had been designated by Attorney General Furman to assist him in prosecuting the criminal business of the State in Essex County (see
The highly important office of county prosecutor has ancient origins in our State. See State v. Winne, 12 N.J. 152, 164 (1953); Winne v. Bergen County, 21 N.J. 311, 322 (1956); Morss v. Forbes, 24 N.J. 341, 365 (1957). Our first State Constitution contained a reference to the office of Attorney General whose early practice was to prosecute the pleas in all counties either in person or through deputies chosen by him and serving at his pleasure. See
In Lindabury v. Board of Chosen Freeholders of Ocean, 47 N.J.L. 417 (Sup. Ct. 1885), the Ocean County prosecutor employed the plaintiff to assist him in the preparation of a case for trial. In due course the plaintiff submitted his bill for services which was approved and paid, but only in part, by the board of freeholders. The plaintiff then instituted his action to compel payment of the balance; in sustaining the plaintiff‘s action the court, through Justice Depue, had this to say with respect to what was then section 100 of the Criminal Procedure Act (see
“The language of the section quoted is quite general. It is made the duty of the prosecutor `to use all reasonable and lawful diligence for the detection, indictment, and conviction of offenders,’ and the payment of `all necessary expenses incurred thereby’ is enjoined upon the board of freeholders. A construction of the statute which would restrict its provisions to the personal efforts of the prosecutor and his personal expenses, without authority to employ other means and instrumentalities to aid him in the discharge of his duty, and to incur expense thereby, would be too narrow to effect
the legislative purpose. On such a construction the prosecutor would not be able to have a diagram prepared, nor to have a chemical analysis made, nor to employ a detective, with any assurance that the expense necessarily incurred thereby would be paid. Such a construction would leave to a prosecutor an excuse for the lax performance of duty, that he had no authority to incur the requisite expense. The plain intent of the statute was to confer upon the prosecutor authority to provide reasonable means to aid him in the performance of his official duties, with a guaranty that the necessary expenses incurred should be paid; and it was left to the court, by the certificate and approval of the presiding judge to determine the reasonableness of the means employed, and the necessity of the expenses incurred.” (47 N.J.L., at pages 423-424)
In Murphy v. Bd. of Chosen Freeholders of Bergen Co., 110 N.J.L. 9 (Sup. Ct. 1932), the prosecutor of Bergen County appointed several investigators in 1930; at that time there apparently was no express statutory provision relating to the appointment of investigators (see
In
The Legislature as well as the courts have long recognized the strong policy considerations which dictate that since the county prosecutor is charged with heavy enforcement responsibilities he must be given broad powers to appoint his own personnel; thus he appoints his own assistant prosecutors and investigators within the maxima prescribed by statute (
In the light of the foregoing, the general authority afforded to the board of freeholders by
The plaintiff urges that if we find, as we do, that the Board of Freeholders had no power to appoint him to the position of legal assistant prosecutor, then we should consider him “as a de facto position holder or employee of the County of Essex” in view of his actual service under the former prosecutor. He cites Barkus v. Sadloch, 20 N.J. 551, 58 A.L.R.2d 954 (1956) where this court held that a switchboard operator had tenure through her original appointment was by the mayor rather than the governing body; Justice Burling pointed out that although her employment was invalid at its inception it was ratified by the governing body and that her status as a de facto employee for an indefinite term brought her within the Veterans’ Tenure Act. In the Barkus case the governing body had statutory authority to employ the switchboard operator (see 20 N.J., at page 554) but omitted an appropriate resolution which was in effect supplied by its ratification of the employment. Here the board never had any statutory power to employ the plaintiff and while his service under the former prosecutor may perhaps be viewed as a ratification by the prosecutor which had the legal effect of an appointment by him under
The plaintiff‘s claim must fail not only because of the limited source of his employment but also because we find a legislative purpose to exclude the county prosecutor‘s confidential employees, such as his legal assistants, from the provisions of the Veterans’ Tenure Act. See Ackley v. Norcross, 122 N.J.L. 569 (Sup. Ct. 1939), affirmed 124 N.J.L. 133 (E. & A. 1940); Rotherham v. Grece, 14 N.J. Misc. 164 (Sup. Ct. 1936); cf. Barringer v. Miele, 6 N.J. 139 (1951); Carluccio v. Ferber, 18 N.J. Super. 473 (App. Div. 1952); McCallion v. Allan, 134 N.J.L. 322 (Sup. Ct. 1946); Di Angelo v. Keenen, 112 N.J.L. 19 (Sup. Ct. 1933), affirmed 115 N.J.L. 507 (E. & A. 1935). See also Chittenden v. Wurster, 152 N.Y. 345, 46 N.E. 857, 37 L.R.A. 809 (Ct. App. 1897); Annotation, When position deemed confidential within contemplation of soldiers’ preference and civil service laws, 146 A.L.R. 818 (1943); cf. The Attorney in the Civil Service, 15 St. John‘s L. Rev. 220 (1941). In the Norcross case the Sheriff of Camden County appointed Ackley as under-sheriff in 1926 and he served under him and under successor sheriffs until 1938 when the then sheriff-elect terminated his services. He instituted a proceeding claiming tenure as a veteran and exempt fireman; his claim was rejected by the former Supreme Court in an opinion which found that “the legislative intention was to give the sheriff free rein to control the terms of office of his under-sheriffs, to appoint and remove at his pleasure.” In the Grece case the judge of the Second District Court of the City of Jersey City appointed Rotherham to be his confidential employee or agent and Rotherham acted as such until the judge terminated his services; he claimed tenure under the Veterans’ Tenure Act but Justice Case, speaking for the former Supreme Court, rejected his claim pointing out that his duties were not certain or “assigned by any public law” and that “the occupation is not one to which the Legislature intended to give tenure.”
In his reply brief the plaintiff states that he does not question “the right of the sheriff to discharge the under-sheriff” (Ackley v. Norcross, supra), “the right of the prosecutor to dismiss his assistant prosecutor” (Vredenburg v. Sexton, supra) or “the right of a Judge to remove a confidential secretary” (Rotherham v. Grece, supra). Indeed,
Affirmed.
For affirmance — Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL and SCHETTINO — 6.
For reversal — None.