[145 NJSuper Page 320] This is an action in lieu of prerogative writs, wherein plaintiff challenges the legality of his summary dismissal as Emergency Employment Administrator
for Atlantic County. He seeks damages and an order restoring him to that position.
Plaintiff was appointed Emergency Employment Administrator on October 13, 1971, by resolution of the board of freeholders. In May 1972 that position was transferred to the newly created Department of Administration for Federal and State Grants and Aid, operating under the supervision of the board of freeholders. As Emergency Employment Administrator, plaintiff was responsible for the administration of matters arising under the Federal Emergency Employment Act of 1971, 85 Stat. 146, 42 U.S.C.A. 4871 et seq. These duties apparently involve substantial interaction with the U.S. Department of Labor. On May 5, 1973, while serving in this position, plaintiff was indicted by an Atlantic County grand jury. The matter was communicated to the Department of Labor by a member of the board of freeholders. An official in the Department subsequently advised the board, by letter dated May 13, 1973, that plaintiff should be removed from his position "in the interests of the proper administration of the program." Plaintiff was discharged on June 7, 1973 by resolution of the board which referred only to the recommendation of the U.S. Department of Labor. He was discharged without prior notice and without a hearing. Plaintiff was subsequently acquitted, at a jury trial, of all charges brought against him in the indictment.
This action was commenced in June 1973. The case was initially delayed pending the resolution of related matters in the U.S. District Court but cross-motions for summary judgment were later heard and denied. The matter proceeded to trial on June 28, 1976 and decision was reserved pending briefs. The court has encountered some difficulty in ascertaining and extracting plaintiff's various contentions from the pleadings, proofs and argument. Nonetheless, all issues fairly presented are treated herein. Plaintiff contends that his dismissal without notice and hearing was illegal. He bases this claim on his rights under the Veterans' Act, N.J.S.A.
38:16-1 et seq. , certain resolutions of the Atlantic County Board of Freeholders and the Due Process Clause of the Fourteenth Amendment, U.S. Const. Amend. XIV.
The parties have admitted in their pleadings, and this court accepts as fact, that plaintiff held his position as Emergency Employment Administrator as a member of the unclassified civil service. Plaintiff contends, nonetheless, that he was protected by the terms of the Veterans' Act, which prohibits the discharge of veterans holding certain state, county or municipal employment, positions or offices "except for good cause shown after a fair and impartial hearing." That claim must be rejected under the specific holding of Schroeder v. Essex Freeholder Bd. , 63 N.J. 124 (1973), clarifying the scope of Perrella v. Jersey City Bd. of Ed. , 51 N.J. 323 (1971). It has been stipulated that plaintiff is a veteran within the terms of the act. It is his status as an unclassified civil servant, however, which controls here. As outlined in Perrella and Schroeder the later enactment of the Civil Service Act, N.J.S.A. 11:1-1 et seq. , has superseded veterans' tenure. The protections of N.J.S.A. 38:-16-1 et seq. are simply unavailable to those in the unclassified civil service. See N.J.S.A. 11:22-2.
Plaintiff next argues that his summary dismissal was prohibited by three separate resolutions passed by defendant board of freeholders, the same body which discharged him by resolution. These contentions must also fail. The resolution dated October 13, 1971 was passed to appoint plaintiff to his position as Emergency Employment Administrator. The resolution indicated that the appointment was to be "for the duration of such project (the U.S. Emergency Employment Act of 1971) and for any replacement, substitution, extensions and renewals thereof," but no evidence has been presented to indicate that either plaintiff or defendant attributed any contractual effect to that phrase. The resolution also indicates plaintiff's responsibilities and his salary range. It was not a contract of employment but an
administrative mechanism necessary to formally effectuate the board's action. Plaintiff's discharge was not barred by the resolution.
The resolution of September 13, 1972, providing for prior written notice in the event of discharge of any county employee, is also raised. The board's failure to comply with the terms of its own resolution may be regrettable but plaintiff has failed to establish that the board was legally obligated to so comply. The resolution could reasonably be construed to apply to actions taken by administrative personnel, apart from actions taken by the board itself. In any case, plaintiff made no request for any written statement of charges at any time. He thereby waived whatever rights he might have had under this resolution, and that claim is also rejected.
Plaintiff also contends that defendant board was required to comply with the resolution of May 9, 1973 relating to the treatment of county employees who have been indicted. Again plaintiff has failed to establish any applicable legal obligation on the part of the board. The resolution indicates that in certain instances indicted employees are to be suspended pending resolution of criminal charges, and are to be dismissed if convicted. It is clear that this resolution was intended to benefit the general public, not the county employee. The suspension-dismissal procedure is required as minimal action; ...