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De Marco v. Board of Chosen Freeholders of County of Bergen

Decided: June 30, 1955.

CARL DE MARCO, PLAINTIFF,
v.
THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF BERGEN, A BODY POLITIC OF THE STATE OF NEW JERSEY AND THE COUNTY OF BERGEN, IN THE STATE OF NEW JERSEY, DEFENDANTS



Waesche, J.s.c.

Waesche

The plaintiff is a county detective of Bergen County. He brings this suit to recover his salary from October 9, 1951 to December 8, 1954, during which time he was suspended from performing his duties as a county detective and, consequently, rendered no services during that period of time.

The plaintiff was appointed county detective on March 5, 1947 by the then prosecutor of Bergen County. His duties

are to assist the prosecutor in the detection, apprehension, arrest and conviction of offenders against the law. N.J.S. 2 A:157-2. Accordingly, the plaintiff is a police officer, and holds a public office. Duncan v. Board of Fire, etc., Commissioners , 131 N.J.L. 443 (Sup. Ct. 1944).

The law does not fix any term for the office of county detective; however, the statute provides that any person appointed county detective shall be in the classified service of the civil service. N.J.S. 2 A:157-2. The plaintiff, therefore, holds an indefinite tenure, subject to removal from office at any time for incompetency or official misconduct, after a hearing on written charges. Sullivan v. McOsker , 84 N.J.L. 380 (E. & A. 1912); R.S. 11:22-3 et seq. If, however, the plaintiff were convicted upon an indictment charging him with the commission of a misdemeanor, or if he pleaded guilty, non vult , or nolo contendere to such an indictment, he would forfeit his office, and cease to hold it from the date of such conviction or entry of plea. N.J.S. 2 A:135-9. A public officer who willfully neglects to perform any duty imposed upon him by law is guilty of a misdemeanor. N.J.S. 2 A:135-1.

On October 9, 1951 the grand jury of Bergen County presented an indictment against the plaintiff, charging him with willfully neglecting to perform his duties as a county detective of Bergen County. The deputy attorney-general in charge of the office of the prosecutor of Bergen County, thereupon, on October 9, 1951, suspended the plaintiff from performing his duties as a county detective. The power of the deputy attorney-general to act in place of the prosecutor is authorized by R.S. 52:17 A -5. It is presumed that the deputy attorney-general in suspending the plaintiff acted within the sphere of his official duty, pursuant to law, and in the public interest. United States v. Chemical Foundation , 272 U.S. 1, 47 S. Ct. 1, 71 L. Ed. 131 (1926); Earl v. Winne , 14 N.J. 119 (1953); Reimer v. Allendale , 123 N.J.L. 563 (Sup. Ct. 1939); 20 Am. Jur. 174, sec. 170 et seq.; 43 Am. Jur. 254, sec. 511.

The United States Supreme Court held in the case of Burnap v. United States , 252 U.S. 512, 40 S. Ct. 374, 376, 64 L. Ed. 692 (1920) that "the power of suspension is an incident of the power of removal." The New Jersey Court of Errors and Appeals, in the case of Vanderbach v. Hudson County Board of Taxation , 133 N.J.L. 126 (1945), said:

"Cases may be readily imagined where the continuance of the incumbent in office during the course of the disciplinary proceedings would seriously disadvantage the public. It might well interfere with official function in substantial particulars; and it might also hamper the investigation of the alleged misbehavior."

The former Supreme Court of New Jersey held in the case of Vanderbach v. Hudson County Board of Taxation , 133 N.J.L. 499 (1946), affirmed 135 N.J.L. 349 (E. & A. 1947), that the right to remove included the right to suspend during "the period reasonably required for the formulating of charges, the serving of them upon the accused, the bringing on of the hearing and the decision of the issue." The opinion of the Supreme Court went on further to say:

"Inability of a public board to separate an inferior officer or an employee from his duties temporarily and in good faith pending trial could work serious impairment in the public service and is not, we think, to be taken as the legislative intent in all instances. The power of a board so to act where the public interest requires flows impliedly, almost necessarily, from the power specifically granted."

In the case of Russo v. Walsh , 18 N.J. 205 (1955), the present Supreme Court held that the power to remove a public officer included the ...


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