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Kugler v. Tiller

Decided: April 1, 1974.

GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
EDWARD H. TILLER, DEFENDANT-RESPONDENT



Carton, Lora and Seidman. The opinion of the court was delivered by Seidman, J.A.D.

Seidman

The Attorney General of New Jersey brought this action in lieu of prerogative writs under N.J.S.A. 2A:81-17.2a1 and 4 to remove defendant Edward H. Tiller from his office as a member and director of the Board of Chosen Freeholders (Board) of Union County for allegedly refusing to testify before the grand jury of that county in an investigation being conducted into matters directly relating to his office. Both parties moved for summary judgment. Defendant's motion was granted and the complaint was dismissed with prejudice. Plaintiff appeals. For reasons to be detailed later, we reverse and remand for a plenary hearing.

It appears that in June 1973 and prior thereto the Attorney General was conducting an investigation before the Union County grand jury concerning appointments made by the Board since 1968. Defendant was informed prior to June 4 that he was the target of the investigation and was subpoenaed to appear before the grand jury on that date. Although what transpired there will be discussed at greater length herein, it is sufficient at this point merely to note that defendant "elected" not to testify, and two days later these proceedings were instituted.

The issue to be resolved seems to be one of first impression in this State and arises from N.J.S.A. 2A:81-17.2a1 and 4, the first section of which is as follows:

It shall be the duty of every public employee to appear and testify upon matters directly related to the conduct of his office, position or employment before any court, grand jury or the State Commission of Investigation. Any public employee failing or refusing to so appear and to so testify shall be subject to removal from his office, position or employment.

Section 17.2(a)(4) provides:

If any public employee has subjected himself to removal as provided in section 2 * * * of this act [2A:81-17.2(a)(1)], a proceeding may be instituted to effect such removal in the Superior Court by the Attorney General or a county prosecutor of this State by proceeding in lieu of prerogative writ.

Defendant argues, as he did below, that since he was not asked specific questions directly relating to the performance of his duties, his refusal to testify could not produce his removal from office. The Attorney General, on the other hand, contends that defendant's affirmative declaration that he would not testify warrants his removal under the statute.

The trial judge upheld defendant's position, reasoning as follows:

In the strictest sense, Tiller did not refuse to testify. He merely asserted that it was not his intention to testify. He was never put to the test. He was never actually called upon to testify by having a direct question put to him. The bare assertion that he did not elect to testify should not be construed to be a failure or refusal to testify under the statute. * * *

The application of this statute, as I have indicated, works a forfeiture of office, and consequently the statute should be strictly construed. Such a construction requires that a question "directly related to the conduct of the office, position or employment" be asked of the official, and the official must refuse to answer the question in order for the statute to be applied. This was not done in this case, and therefore Director Tiller is not in violation of the statute.

In our view, the trial judge's conception of the statute was unduly narrow and restrictive and, moreover, not in accord with what we conceive to be the plain statutory purpose and intent to hold public officials accountable for the ...


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