Conford, Kolovsky and Carton. The opinion of the court was delivered by Carton, J.A.D.
The main question required to be resolved on this appeal is whether a county board of chosen freeholders or the county prosecutor, as employers, have the power and authority to transfer members from the county police force to full-time investigative positions in the prosecutor's office without first obtaining approval from the Civil Service Commission.
The issue comes before us as the result of an appeal by plaintiff County of Bergen from an order of the Civil Service Commission directing that a competitive examination be held for county detective's positions in that county. Plaintiff brought an action in the Superior Court to enjoin the scheduled examination, the publication of the list of grades resulting from that examination, and to prevent the Civil Service Commission from disapproving the payroll of the county police officers presently assigned to the prosecutor's office.
The Law Division declined to restrain the examination, but did issue a show cause order and restraint against publishing the examination grades and against disapproval of the payroll. After a hearing on the order to show cause, the Law Division transferred the matter to this court on the ground that the complaint involved a challenge to a final determination of a state administrative agency R. 2:2-3(a)(2).
The restraints previously imposed were continued pending order of this court. We accelerated this appeal because of the important public issue involved.
The factual background is not in substantial dispute. Since 1966 a practice of transferring members of the county police department to full-time investigative work in the county prosecutor's office has existed in Bergen County. This practice, originally adopted by agreement between the county freeholders, a former chief of county police, and the former prosecutor, has been continued to the present time without being approved or sanctioned by the Civil Service Commission. Under this arrangement a total of 21 county police officers are now assigned to the prosecutor's staff in investigative positions.
As a result of complaints made to it, the Department of Civil Service conducted an investigation and condemned the practice as unauthorized and contrary to law. The Civil Service Commission then issued the order presently under appeal directing that a competitive examination be held for the position of Bergen county detective. An examination was held on September 18, 1970 but the results have not yet been published.
Plaintiff's position is that the board, as employer of the county police, has the right to assign them to duties in the prosecutor's office by virtue of the power conferred upon it by the Legislature to establish a county police force. That legislation does indeed authorize the board to establish a police force for regulation of traffic N.J.S.A. 40:22-1. Its provisions empower officers so appointed to enforce the motor vehicle laws, to regulate traffic, and to arrest for the commission of any crime in any part of the county N.J.S.A. 40:22-2 and 5.
But even if we assume the correctness of plaintiff's argument that county policemen are law enforcement officers and not merely traffic police, the general power to create such a law enforcement body cannot be interpreted to include the right to transfer the members of that force, designated
as a classified service, to another Civil Service position (even assuming the similarity of such positions) without the knowledge and ...