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Muccio v. Cronin

July 2, 1975


Doan, J.s.c.


Plaintiff brings this action in lieu of prerogative writs seeking judgment: (a) declaring null and void his termination as a Passaic County investigator, (b) compelling his reinstatement to that position, (c) declaring him tenured in the position, and (d) awarding him counsel fees and costs.

The basic facts are neither disputed nor complex. On June 16, 1951 plaintiff was appointed a special investigator for the Passaic County Prosecutor's Office by then Prosecutor Donald G. Collester. The appointment was denoted "unclassified." Thereafter, pursuant to L. 1951, c. 274 (N.J.S.A. 2A:157-10), plaintiff was designated a county investigator by Prosecutor Collester on September 12, 1951 and continued as such until receipt from then Acting Prosecutor Clinton E. Cronin of a notice of termination, dated June 13, 1975, effective June 20, 1975. Defendant Humphreys, who took office as Passaic County Prosecutor on June 23, 1975, has notified plaintiff that he will not reappoint him as a county investigator.

From August 11, 1946 to December 9, 1953 plaintiff served as a volunteer fireman in the Borough of West Paterson. On December 17, 1953 he received an exempt fireman certificate from the West Paterson Fire Co. No. 1 which was filed in the Passaic County Clerk's office the following day, December 18, 1953.

Letter opinions of then county counsel dated February 10, 1954, addressed to the board of freeholders, and May 6, 1970, addressed to plaintiff, concluded that Muccio had acquired tenure as a county investigator by virtue of R.S. 40:47-60 (entitled "Tenure of exempt firemen"). Plaintiff so claimed in a letter to Prosecutor Collester dated January 19, 1954. This claim was subsequently forwarded to the board of freeholders who, in turn, notified the Civil Service Commission, by letter dated March 9, 1954, of it and the confirming opinion of county counsel (that dated February 10, 1954). The Commission, after noting receipt of the transmitted materials on Muccio's file, concluded it had no jurisdiction over R.S. 40:47-6 matters and took no action thereon.

Cross-motions for summary judgment have been filed. At oral argument defendants questioned whether plaintiff had served continuously since 1951 without reappointment, as he claimed, and whether the exempt fireman certificate was duly issued. N.J.S.A. 40A:14-55, 56 and 59; R.S. 40:47-52, 53 and 58. However, for purposes of their motion, these facts were conceded.

Plaintiff contends he has tenure as an exempt fireman under N.J.S.A. 40A:14-64 and that he cannot be removed absent a finding of good cause made after a fair and impartial hearing. Defendants posit that the Exempt Firemen's Tenure Act is inapplicable and Muccio is subject to summary removal by any incumbent prosecutor, N.J.S.A. 2A:157-10.


Initially, judgment dismissing the complaint must be entered in favor of defendant board of chosen freeholders inasmuch

as it lacks any authority to continue plaintiff in his position or to reappoint him to it. Cetrulo v. Byrne, 31 N.J. 320 (1960); N.J.S.A. 2A:157-10. In Cetrulo it was said:

The Legislature as well as the courts have long recognized the strong policy considerations which dictate that since the county prosecutor is charged with heavy enforcement responsibilities he must be given broad powers to appoint his own personnel; thus he appoints his own assistant prosecutors and investigators within the maxima prescribed by statute * * *. * * * Nowhere have we found any statutory language which supports the notion that an outside legislative agency such as the board of freeholders has the right to appoint assistants to the prosecutor * * *. [at 329]

Though Cetrulo dealt specifically with the freeholders' inability to appoint legal assistants, the holding there was clearly intended to apply to other assistive positions such as investigator and is dispositive of the action against the board here.


We turn, then, to the heart of the controversy. N.J.S.A. 40A:14-64 pertinently reads as follows:

Whenever an exempt fireman holds a * * * county * * * office not created by the Constitution, he shall hold such office during good behavior and shall not be removed unless for good cause after a fair and impartial hearing, provided he has or shall have served in said office for a term of 3 [three] consecutive years * * *.

Since N.J.S.A. 2A:157-10 denotes county investigator as an "office or position" the above statute seems applicable to Muccio's case. Furthermore, even were it not an "office" for 40A:14-64 purposes, plaintiff's circumstances could bring him within N.J.S.A. 40A:14-60, which provides:

Whenever any person possessing an exempt fireman certificate holds an office, position or employment of * * * a county * * * for an indeterminate term, such person shall hold his office, position or employment during good behavior and shall not be removed therefrom for political ...

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