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Gobac v. Davis

Decided: June 8, 1960.


Collester, J.s.c.


The plaintiff, Charles Gobac, brought suit by complaint in lieu of prerogative writs seeking to set aside a written resignation executed by him as an investigator of the Division of Alcoholic Beverage Control of the Department of Law and Public Safety, to compel his reinstatement to his former position and to require that he be reimbursed for the salary lost during a period of wrongful discharge.

Plaintiff is an honorably discharged veteran. He was appointed as an investigator in the Division on September 9, 1955. Under the statute establishing his said position, N.J.S.A. 33:1-4(d), he was removable by the Director of the Division at will during his first three years of service and on and after September 9, 1958 he was to serve during good behavior and could not be removed except for cause.

The defendant is William Howe Davis, Director of the Division of Alcoholic Beverage Control (A.B.C.) of the Department of Law and Public Safety.

On September 14, 1959 the plaintiff telephoned Emerson Tschupp, Deputy Director of the Division, requesting an interview to present certain complaints concerning working conditions at the Nixon (Edison Township) office. One hour later he received a telegram from Deputy Director Tschupp directing him to report to Tschupp on Wednesday morning, September 16 at the Newark office.

On the date scheduled the plaintiff appeared at the office of the A.B.C. for the scheduled conference with Deputy Director Tschupp. The entire conference lasted approximately 50 minutes.

At the outset of the conference, for a period of about 15 minutes, the plaintiff presented complaints concerning his working conditions and in particular those pertaining to his immediate district supervisor.

Deputy Director Tschupp then stated it was a case of "mutual dissatisfaction" and that Director Davis had received information which had led the Director to conclude that sufficient cause existed for the dismissal of the plaintiff as an investigator. The Deputy Director stated that he had been instructed by the Director to have the plaintiff come in to offer him an opportunity to resign rather than being dismissed.

The plaintiff, who testified that he was shocked by this request, asked the reason therefor and was informed by the Deputy Director that he had committed the most unpardonable sin in that he had "blown the whistle" on an investigation by informing a licensee of an investigation being conducted by the Division, as a result of which it was aborted.

The plaintiff denied the charge and demanded to know what investigation was referred to; the location of the licensee; the source of the Director's information; whether or not it was an investigation to which he had been assigned; whether it was an investigation which had been conducted in Franklin Township or New Brunswick (his area), and similar inquiries. Deputy Director Tschupp refused to give him any information or details concerning the charge but

stated it was not an investigation to which the plaintiff had been assigned, nor was it in the municipalities mentioned, and refused to name either the licensee or the source of his information. When the plaintiff demanded to know how he could tip off a licensee if he was not assigned to the case, Deputy Director Tschupp stated, "You have eyes and ears; you might have seen the copy of the assignment as other agents have in the past. We are not saying you have received any money or gifts for this tip-off."

Deputy Director Tschupp informed the plaintiff that he had a choice of either resigning or being dismissed. He further explained to the plaintiff the benefits of submitting his resignation, namely, that the record would only show a resignation, no matter who inquired, while, if he was dismissed the record would show the reasons for the dismissal and would have to be furnished to anyone who inquired, particularly prospective employers. Mr. Tschupp told plaintiff of cases of other men who had been dismissed and their difficulty in securing employment because of the existing record of dismissal.

When plaintiff asked what the record would show if he was dismissed, Deputy Director Tschupp told him it would be in formal language consisting of "violation of oath of office, disrespect for superior officers, misconduct in office, and possibly others they might work up as they analyzed it more carefully, but that the principal factor would be the tipoff of a certain licensee with respect to a certain investigation."

The plaintiff asked to see Director Davis but was advised by Deputy Director Tschupp that he could not do so for the reason that the Director had considered the information and had evaluated it; had come to an administrative determination, and had told him (Tschupp) to pass the message on to the plaintiff; therefore there was no point in seeing the Director.

The plaintiff then asked for time to consider, stating that it was unfair for a man to consider the matter in such a

short while. Deputy Director Tschupp told him he had been instructed by the Director to obtain plaintiff's decision, and that he would either have to resign "right now" before he left the office or be dismissed. He told plaintiff that if he submitted his resignation, the Director would make it effective on October 2, 1959, two weeks hence, while if he did not resign his dismissal would be effective as of the time the Director signed it, either that day or the following day.

During the conference the plaintiff expressed concern about the effect of either a resignation or a dismissal upon his wife and four children, his loss of employment, and of how he would subsist during the coming winter months. He expressed concern as to the effect of such an action on his political future since he held a minor political office in his home town. While denying the charge made, he asked whether or not he could be suspended from office rather than be dismissed, but was told that such a disposition was not possible.

In the course of the discussion Deputy Director Tschupp took from the drawer of his desk a typed letter of resignation which he had prepared two days before and proffered it to the plaintiff.

At the conclusion of the conference the plaintiff signed the resignation. After he left the office he conferred with an attorney and on September 18 a letter was sent to Director Davis stating that the plaintiff's resignation signed on September 16 to be effective October 2 was withdrawn and advising that the plaintiff would report for whatever duties would be required of him. The letter further pointed out that Mr. Gobac was a veteran with an honorable discharge and had tenure by reason of the length of his employment with the Division. Thereafter a series of letters was interchanged between the plaintiff's attorney and the defendant, the former demanding that the plaintiff be granted a hearing after charges were preferred against him and charging that the resignation was secured from plaintiff by duress; the

latter contending that the resignation was voluntary and had been accepted on September 16, 1959, the date it was executed, to be effective on October 2, 1959. The defendant refused to grant plaintiff a hearing and removed him from the Division's payroll on October 2, 1959.

The contention of the plaintiff is that the resignation he signed on September 16, 1959 was obtained by duress and thus was void; that the defendant wrongfully terminated plaintiff's employment on October 2, 1959 without a hearing and that the defendant should be compelled to restore plaintiff to his position and to reimburse him for salary lost subsequent to October 2, 1959.

The defendant denies that the resignation was obtained by duress and contends that it was voluntary; denies that plaintiff's employment was illegally terminated and that there is any liability to plaintiff for salary claimed.

The first issue raised on behalf of the defendant is a contention that the present procedure invoked by the plaintiff, namely, a complaint in lieu of prerogative writs, is not maintainable to cancel a resignation.

It must be noted that the relief sought is not only to void the resignation on the ground of duress but to restore plaintiff to his status as an investigator as a result of an alleged unlawful termination of his services.

The relief sought is in the nature of a mandamus to compel the defendant to perform a ministerial duty. If the plaintiff's services were illegally terminated and he is entitled to reinstatement, the proper procedure to effect that result is mandamus. Hefter v. Bradway , 115 N.J.L. 81 (Sup. Ct. 1935); Ziegler v. Hackensack , 114 N.J.L. 186 (E. & A. 1934); State ex rel. Jardot v. City of Rahway , 2 N.J. Misc. 742 (Sup. Ct. 1924) (overruled on other grounds by De Marco v. Bergen County , 21 N.J. 136, 142 (1956)); McCann v. New Brunswick , 73 N.J.L. 161 ...

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