Zamboni v. StamlerZamboni v. Stamler
This appeal concerns two consolidated actions instituted by several Union County detectives challenging the legal efficacy of a reorganization plan adopted by the prosecutor. At issue is the authority of the prosecutor to create superior officer positions within the unclassified service of his investigative staff and to appoint detectives to temporarily serve in that capacity.
A brief description of the applicable statutory provisions is necessary for a full understanding of the issues presented.
Under the reorganization plan, the prosecutor established superior officer positions within the unclassified service of the county investigators. The chain of command generally paralleled the hierarchial structure of the county detectives. Selected members of the detective staff were offered superior officer positions as investigators. Those detectives who accepted such offers executed temporary leaves of absence from their classified positions. They retained the right to be reinstated to their former classified status at the expiration of their leaves of absence. The prosecutor also advised the detectives that he would not consider promotions within the classified ranks. Hence, the sole means of advancement under the prosecutor‘s reorganization was by way of accepting a supervisory or superior officer position in the unclassified service of investigators. The articulated objective of the plan was to рrovide greater flexibility within the county prosecutor‘s office. An auxiliary purpose was to insure greater stability and expertise in the traditional trial preparatory positions.
Following adoption of the plan, plaintiffs instituted separate actions in lieu of prerogative writ. Several of the detectives also sought the intervention of the Department of Civil Service. Plaintiffs’ attack on the newly adopted reorganization plan was two-fold. First, they contended that the statutory scheme,
The Department of Civil Service refused to intervene. By letter dated May 17, 1983, directed to several of the complaining detectives, the Department‘s Director of County and Municipal Government Services noted that the prosecutor had “wide latitude and discretion in [determining] the size and composition” of his unclassified investigative staff. Nothing in the civil service laws and rules was said to specifically preclude the establishment of supervisory positions among investigators. He also noted that the “prosecutor‘s action in offering certain permanent employees in the county detectives service аppointment as county investigators was not violative of civil service laws and rules.” So too, the granting of mutually agreed upon leaves of absence to such employees in order to preserve their entitlement to their permanent classified status while serving in such positions was considered to be consistent with applicable regulatory provisions. In an August 9, 1983 letter, the director responded to an inquiry from Detective Zamboni. The director noted that for civil service purposes supervisory positions in the investigators’ ranks would continue to be recorded under the title of County Investigator in the unclassified service (
We affirm the order granting defendant‘s motion for summary judgment substantially for the reasons set forth in Judge Beglin‘s opinion. Whatever reservations one might harbor with respect to the wisdom of the prosecutor‘s reorganization, we conclude that the applicable civil service rules and regulations were followed. In that regard, we agree with the position adopted by the Department of Civil Service that the prosecutor
Nevertheless, we emphasize the limits of our decision. We have no occasion at this time to decide whether by virtue of the newly adopted plan the detectives have been assigned duties falling beyond the purview of their job classifications. As we have noted, that question is presently the subject of investigation by the Department of Civil Service. We, thus, perceive no sound reason to resolve that issue in advance of the Department‘s findings. Nor do we address questions pertaining to the prosecutor‘s expressed unwillingness to promote detectives within the ranks of the classified service. Suffice it to say, the issue presented is purely hyрothetical at this point.2 We will not render advisory opinions or function in the abstract; nor will we decide a case based upon facts which are undeveloped or uncertain. See New Jersey Ass‘n for Retarded Citizens v. Dept. of Human Serv., 89 N.J. 234, 241 (1982); Crescent Pk. Tenants Assoc. v. Realty Eq. Corp. of N.Y., 58 N.J. 98, 107 (1971); New Jersey Turnpike Auth. v. Parsons, 3 N.J. 235, 240 (1949).
I.
Although the precise question presented here is of first impression, the broad parameters of prosecutorial discretion pertaining to the compоsition of the unclassified service of investigators have been firmly established in an unbroken line of judicial decisions. In Cetrulo v. Byrne, 31 N.J. 320 (1960), for example, our Supreme Court held that prosecutors were
These decisions rest upon judicial and legislative recognition of the ancient origins of the prosecutor‘s office and the heavy law enforcement responsibilities with which it is charged. See, e.g., Morss v. Forbes, 24 N.J. 341, 365 (1957); Winne v. Bergen County, 21 N.J. 311, 322 (1956); State v. Winne, 12 N.J. 152, 164 (1953); Murphy v. Bd. of Chosen Freeholders of Bergen Co., 110 N.J.L. 9, 10 (Sup.Ct. 1932); Lindabury v. Bd. of Chosen Freeholder of Ocean, 47 N.J.L. 417, 424 (Sup.Ct. 1885). The statutes reflect a “fixed legislative policy to cast on thе county prosecutor responsibility for the detection, apprehension, arrest and conviction of criminals in his county.” State v. Winne, supra, 12 N.J. at 167. The Legislature has conferred upon him a power unparalleled in the county to incur expenses in the performance of his official duties, ibid., and has provided special budgetary techniques designed to insure his financial ability to execute his constitutional pоwers. See, e.g., In re Application of Schragger, 58 N.J. 274 (1971); In re Application of Bigley, 55 N.J. 53 (1969);
Obviously, the powers conferred upon the prosecutor by statute do not require him to personally “detect, arrest, indict and convict.” Id. at 168. Rather, the statutory scheme allows him a staff of assistant prosecutors, detectives and investigators. As we have notеd, the Legislature in
We note that with the pаssage of time the number of unclassified investigator positions has vastly increased by virtue of amendatory legislation and judicial orders. The point to be stressed is that the unclassified investigative service is no longer comprised of a small cadre of prosecutorial assistants. In Union, a county of the second class with a population of approximately 504,000, the prosecutor is authоrized to appoint 30 county investigators. At oral argument, we were advised that Union County is by no means atypical. It is clear that a work force of that size cannot be effective if it does not know how it is to function. Under these circumstances, we perceive nothing in the statutory scheme or in the applicable civil service regulations which would preclude a prosecutor from structuring his investigative staff to insure its proper functioning.
We agree with Judge Beglin‘s conclusion that the absence of specific statutory authorization does not bar the prosecutor from creating superior officer positions within the unclassified investigative service. We have already alluded to the decisions of our Supreme Court which have recognized that the prosecutor “must have frеe rein to select and remove” county investigators. Cetrulo v. Byrne, supra at 332. In our view, the prosecutor is vested with the corollary authority to organize and structure his investigative staff consonant with his perception of the particularized needs of his office. Unlike the clearly defined chain of command applicable to the classified detective service, the prosecutor, by statute and case law, is accorded substantial discretion and flexibility in structuring his investigative
II.
We are also satisfied that the аpplicable civil service statutes and rules permit detectives to take temporary leaves of absence in order to serve in the capacity of unclassified investigators.
The head of any department or the appointing authority in any county ... may grant leaves of absence without pay to permanently employed civil service employees for periods nоt exceeding six months at any one time for reasons satisfactory to such head or appointing authority, pursuant to regulations governing such leaves of absence established and approved by the governing body of the county....
Plaintiffs’ reliance upon our decision in Bergen County v. Dept. of Civil Service, 115 N.J. Super. 90 (App.Div. 1971), is clearly misplaced. There, the board of chosen freeholders attempted to transfer members of the county police force to full-time classified detective рositions in the prosecutor‘s office without first obtaining approval from the Department of Civil Service. We held that the county‘s action violated the provision of
A person holding an office or position in the classified service may, on his own request and with the consent of the commission, be transferred to a similar office or position in another office, department or institution. No transfer shall be made from an office or position in one class to that of another class nor to an office or position for original entrance to which there is required by this subtitle, or the rules adopted pursuant thereto, an examination involving essential tests or qualifications different from or higher than those required for original entrance to an office or position held by such persоn.
We concluded that this section was expressive of the legislative scheme that transfers are not to be a matter of routine “but made only under conditions and upon terms which harmonize with the overall concept of the civil service system.” Id. at 94.
Our decision in Bergen County v. Dept. of Civil Service, supra, is plainly distinguishable. We are not concerned here with an attempt to circumvent civil service rules by permanently transferring persons to classifiеd detective positions. As we expressly pointed out in Bergen County, supra at 95, “[t]he prosecutor had the power ... to appoint to the unclassified position of county investigator any qualified individuals, including members of the Bergen county police.” (emphasis added). We noted, however, that such persons would not be accorded civil service protection in their positions as investigators, but rather would serve at the pleasure of the prosecutor. Id. at 96.
More importantly, our decision in Bergen County, supra, pertained to a permanent transfer of law enforcement personnel
III.
Although not expressly articulated, we perceive an overriding concern on the part of plaintiffs that under the prosecutor‘s reorganization detectives will be supervised by unclassified investigators. In Rolleri v. Lordi, supra, 146 N.J. Super. at 306, we noted that the two positions are not fungible despite the fact that the powers and obligations of both are identical. We do not discеrn in the statutory scheme any intent to prefer detectives over investigators. Ibid. Nevertheless, it bears repeating that the prosecutor is obliged to comply with all applicable civil service statutes and rules. We merely emphasize that the Department of Civil Service is presently considering whether the prosecutor‘s reorganization has resulted in an unlawful encroachment upon the statutory duties and responsibilities of the detectives. Hence, we need not address that
In sum, we are satisfied that the prosecutor may lawfully structure and organize his unclassified investigator staff and create supervisory and superior officer positions toward that end. So too, we are convinced that the prosecutor may grant leaves of absence to members of the detective service so that they may temporarily serve as investigators. Accordingly, the order granting defendant‘s motion for summary judgment and dismissing plaintiffs’ complaint is affirmed.