I have before me defendant's motion for summary judgment. The facts are not at issue. Plaintiff was summarily dismissed from his employment as a private clerk, public safety education, on February 21, 1975, a position plaintiff had held since January 4, 1970. As a certified exempt fireman, plaintiff asserts that he was entitled to a formal hearing prior to termination, under the provisions of N.J.S.A. 40A:14-60-64. Defendant, however, contends that the position of private clerk falls within the unclassified Civil Service categories (N.J.S.A. 11:22-2(m)) and is not protected by the exempt firemen's tenure statutes.
N.J.S.A. 40A:14-60 and 64 provide:
Whenever any person possessing an exempt fireman certificate holds an office, position or employment of the State, or a county or municipality or a school board or board of education for an indeterminate term, such person shall hold his office, position or employment during good behavior and shall not be removed therefrom for political reasons but only for good cause after a fair and impartial hearing.
For the purposes herein no term of office, position or employment of any such person shall be deemed to be fixed by law or coterminous with that of a noncontinuous appointing or employing board
or body; provided, however, that in no event is it intended that this provision shall apply to appointments made for a fixed or stated period of time.
Any hearing for removal of an exempt fireman shall be upon a written complaint setting forth the charge or charges and filed with the authority in charge. A copy thereof shall be served upon the person so charged with notice of the time and place of the hearing thereon. The person so charged shall have the right to be represented by counsel and to subpoena witnesses and documentary evidence. [ N.J.S.A. 40A:14-60]
Whenever an exempt fireman holds a State, county, municipal or a board of education 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 consecutive years. [ N.J.S.A. 40A:14-64]
The exemption certificates and veteran's and firemen's tenure acts have existed for many years and are "identical in form and substance." Maxwell v. Wildwood , 111 N.J.L. 181, 184 (Sup. Ct. 1933) The earlier version of the firemen's tenure statute was construed in Grimm v. Sussex Bd. of Chosen Freeholders , 118 N.J.L. 210 (Sup. Ct. 1937), where the court found that
It is quite clear also that one holding a position, the term of which is not fixed by law and receiving a county salary, is protected under the statute from discharge without good cause being shown if he is the holder of an exemption certificate issued to him as a member of a volunteer fire department. [at 211]
Plaintiff was employed by defendant for over five years, longer than the statutory minimum for tenure, and has met all other prerequisites of N.J.S.A. 40A:14-60 et seq.
It appears evident that were this the only body of law to be applied to the instant facts, plaintiff would prevail. Plaintiff is a holder of an exempt fireman certificate who has occupied the county position to which he was appointed continuously for over 24 years. It is not necessary that he have had the certificate when appointed, Grimm v. Sussex Bd. of Chosen Freeholders , 118 N.J.L. 210 (Sup. Ct. 1937), and it has been held that a term coextensive with the appointing agency's pleasure, as is the case under N.J.S.A. 2A:157-10, is an indefinite one for purposes of the Exempt Firemen's Tenure Act, Maxwell v. Wildwood , 111 N.J.L. 181, 184 (Sup. Ct.
1933). The requirements of the act have patently been met here and tenure would normally attach in the absence of other considerations. [ Muccio v. Cronin , ...