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Miele v. McGuire

Decided: January 13, 1959.

DANIEL MIELE, JR., PLAINTIFF,
v.
JOSEPH V. MCGUIRE, ET AL., DEFENDANTS



Scherer, J.s.c.

Scherer

Plaintiff brought suit by a complaint in lieu of prerogative writs seeking to set aside his dismissal as an employee of the Passaic Valley Sewerage Commission (hereinafter called the "Commission"), to compel his reinstatement to his former position and to require that he be reimbursed for the salary lost during the period of discharge.

Plaintiff is an honorably discharged veteran of the United States Army, having served during the Korean conflict in combat duty. His period of active duty was from November 7, 1950 to November 19, 1952. Thereafter, he was in the United States Army Reserve from November 19, 1952 to December 4, 1956.

Defendants are the members of the Passaic Valley Sewerage Commission, a body politic and corporate of New Jersey, created pursuant to R.S. 58:14-1 et seq.

Plaintiff, prior to entering the army, was an employee of the Commission. His employment started November 29, 1949. The resolution appointing him provided that he be appointed "Maintenance Man * * * to serve at the pleasure of the Commissioners, said employment being subject to the right of the Commissioners to remove said employee at any time without notice."

As stated above, plaintiff entered the army on November 7, 1950, presumably through Selective Service. The minutes of the Commission do not disclose whether he resigned or was given a leave of absence. There is a reference in the minutes of the meeting of November 28, 1950 stating that

the plaintiff had recently been inducted into the armed services and that he was to be reimbursed for a week's salary which had been withheld.

The next reference to the plaintiff in the minutes of the Commission is at the meeting of January 27, 1953, where it is stated that the plaintiff, "a former employee," had been released from the armed services and wished to return to his employment. Thereupon, a motion was adopted and plaintiff was "re-appointed Maintenance Man * * * effective January 29, 1953 to serve at the pleasure of the Commissioners, said employment being subject to the right of the Commissioners to remove said employee at any time without notice."

Plaintiff alleges that he was not aware of the provision either of the original resolution in 1949 or the later resolution in 1953 that he was to serve at the pleasure of the Commission, subject to being removed without notice.

It should be noted here that R.S. 58:14-6, the statute creating the Commission, provides that the Commissioners may from time to time appoint such employees as they may deem necessary to carry out the purposes of the act, may prescribe their duties, fix their compensation, "and remove them at pleasure." This statute was in effect at all times during the plaintiff's employment.

Plaintiff was dismissed, without notice and without hearing, effective July 22, 1958. At a regular meeting of the Commissioners on July 1, 1958 a resolution was adopted providing that the employment of plaintiff and some other employees, all of whom were serving at the pleasure of the Commissioners, should be terminated on the dates fixed in the resolution. Pursuant to the resolution, the clerk of the Commission sent a letter dated July 2, 1958 to the plaintiff advising him of the action of the commissioners.

Thereafter plaintiff, on August 7, 1958, appealed to the Department of Civil Service of New Jersey, complaining that he had been dismissed without written charges and a hearing after eight years of service with the Commission and that this dismissal was illegal because, as an honorably

discharged veteran, he was not subject to dismissal except upon the filing of written charges and after a fair and impartial hearing. The Department of Civil Service, on September 10, 1958, advised plaintiff that the employees of the Commission were not under Civil Service and, therefore, it had no jurisdiction.

The complaint in this case was filed August 15, 1958. There is no dispute as to any of the material facts. The plaintiff has made a motion for summary judgment and by consent the case was submitted as if the ...


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