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Thomas v. McGrath

Decided: December 1, 1976.

RUSSELL W. THOMAS, PLAINTIFF-APPELLANT,
v.
EDWARD W. MCGRATH, UNION COUNTY PROSECUTOR AND THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF UNION, DEFENDANTS-RESPONDENTS



Bischoff, Morgan and Collester. The opinion of the court was delivered by Bischoff, P.J.A.D., Temporarily Assigned. Morgan, J.A.D. (dissenting).

Bischoff

Plaintiff appeals from a judgment dismissing his complaint wherein he sought a judgment declaring that he had been appointed to the position of sergeant of county detectives and for injunctive relief.

On or about July 27, 1970 plaintiff was appointed to the staff of the Union County Prosecutor as a county investigator, an unclassified Civil Service position. In May 1972, having passed a Civil Service examination for the position of county detective and having otherwise qualified, plaintiff was appointed to the position of county detective, a classified Civil Service position.

On or about January 27, 1975 plaintiff was appointed provisional Sergeant of county detectives by Karl Asch, the then Prosecutor of Union County. Plaintiff thereafter took a competitive examination for the position of sergeant of county detectives and, by notice dated April 4, 1975, was informed he had passed the examination and, in fact, ranked first of all candidates taking the examination.

By letter dated April 21, 1975 addressed to Prosecutor Asch, plaintiff acknowledged receipt of "Civil Service CS 9 form" notifying him that he had been certified for the position of sergeant of county detectives and indicated he was willing and anxious to accept the position should the prosecutor choose to appoint him.

There existed four vacancies for the position of sergeant of county detectives and, accordingly, the Civil Service certified the names of six persons eligible for appointment. This certification to the prosecutor, dated April 17, 1975, was made by forwarding to him a form entitled "Certification of Eligibles for Appointment" and known as CS 10.

On April 23, 1975 Prosecutor Asch completed form CS 10 by inserting opposite the name of plaintiff, who was number one on the list, plaintiff's serial number, the location of the department and the division where he was to work, and the salary he was to be paid. He did the same for three other men and signed the form.

Instructions printed on the form provided "answer certification completely within 15 days on the carbon copy," and further, "Note you are requested to notify the eligibles of the time and place to report for an interview and advise the Department of Civil Service at the address checked below of the disposition of the certification and the appointments made."

The parties agree that normal procedure requires the prosecutor to forward this certification, when completed, to the Department of Civil Service. That was not done in this instance. Instead, a carbon copy of the completed form was forwarded to the board of chosen freeholders on April 23, 1975. Normal procedure also requires the appointing authority to initiate a request for personnel action so that the appointee may be paid. This is accomplished by forwarding to the freeholders a form designated CS 6. While at oral argument neither party was able to provide any information concerning completion of the form CS 6 as to the plaintiff, we have since been informed, by letter, that this form has been discovered in plaintiff's personnel file. It is dated April 24, signed by Karl Asch, and contains the notation: "per certification dated April 17, 1975" -- "promotion is permanent."

On April 25, 1975 defendant McGrath succeeded Asch as Prosecutor of Union County. He withdrew form CS 10 from the board of freeholders and on or about June 17, 1975 altered the form by striking over the designation of plaintiff as an appointee and designating instead Robert L. Rowland, another of the six certified as eligible. He crossed out Asch's signature, signed it on June 17, 1975 and forwarded it to the Department of Civil Service. CS 6 was also completed at this time by McGrath as to Rowland and the others, forwarded to the board of freeholders, and approved by them.

Plaintiff instituted this action in lieu of prerogative writs contending he had been appointed sergeant of county detectives by Asch; that it was improper for McGrath to withdraw CS 10, to alter it by striking out his name and to attempt to appoint Rowland in his place. He sought an injunction against (a) the administration of the oath of office to Rowland, (b) McGrath returning plaintiff to his permanent position of county detective and (c) reducing his salary.

Plaintiff's complaint was filed June 30, 1975, together with a supporting affidavit. The complaint was accompanied by an application for temporary relief. An order to show cause was granted, returnable later the same day. Upon the return of the order to show cause the trial judge heard argument, denied the application for injunctive relief and dismissed the complaint, entering judgment for defendant. Plaintiff filed a motion for reargument, which was also denied. Plaintiff appeals from the judgment dismissing the complaint.

Plaintiff contends his appointment was made when Prosecutor Asch completed and signed the CS ...


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