On appeal from the Department of Human Services.
Fritz, Bischoff and Morgan.
This appeal involves consideration of due process requirements incident to the discharge of a public employee serving at will.
On July 12, 1976 plaintiff John Grexa was provisionally appointed to the position of "Administrator, Fiscal and Management Operations" in the Division of Youth and Family Services, Department of Human Services (hereafter DYFS), pending an open competitive Civil Service examination. He was paid an annual salary in excess of $30,000. As Administrator, plaintiff was the chief fiscal officer for DYFS, an agency with a yearly budget in excess of $160,000,000.
On April 12, 1977 plaintiff was summoned to the office of his superior and interrogated concerning (1) his use of DYFS secretarial services to type a personal letter in which plaintiff was negotiating with Computer Science Corp. concerning its promotional use of an article previously written by plaintiff and his possible engagement as a consultant on a retainer of $25,000 a year, and (2) the charging of certain telephone calls to the DYFS telephone number made by plaintiff to Computer Science Corp.
Plaintiff refused to answer the inquiries directed to him, and his employment was thereupon terminated. He never received a written explanation specifying the reasons for his discharge. Plaintiff's requests for a hearing to consider "the circumstances and consequences of his dismissal" were denied.
On October 27, 1977 plaintiff filed a complaint in lieu of prerogative writs in the Superior Court seeking, among other relief, reinstatement, back pay and damages for his alleged wrongful discharge. Count 1 of the complaint alleged that his discharge was wrongful, and it was, on defendant's motion to dismiss, transferred to this court. Count 5 of the complaint alleged a violation of his right to freedom of speech under the First Amendment to the U.S. Constitution. This was construed by the trial judge as alleging a violation of plaintiff's civil rights under 42 U.S.C.A. § 1983*fn1 and was dismissed as against the State of New Jersey because it was not a "person" within the meaning of the act. Leave to appeal that dismissal was granted and the two appeals were consolidated.
Respondent contends that the appeal should be dismissed as untimely. This argument proceeds on the theory that the only review of an administrative action of dismissal is by way of appeal to the Appellate Division within 45 days of the administrative action. R. 2:2-3(a); R. 2:4-1(b). Plaintiff counters with the contention that since his suit involves a claim of constitutional defect in an agency action, it is exempt from the 45-day limit. McKenna v. N.J. Highway Auth. , 19 N.J. 270, 276 (1955); Nelson v. South Brunswick Planning Bd. , 84 N.J. Super. 265, 275 (App. Div. 1964).
We pass this procedural question without expressing any opinion on it and elect to dispose of the issues presented on the merits.
Plaintiff first contends he "was deprived of his constitutional rights to due process of law (liberty) when the State of New Jersey failed to give him a post-termination hearing." It is undisputed that plaintiff was a temporary employee without fixed term with DYFS, unprotected by Civil Service or by any statutory tenure, contractual commitment or collective negotiations. In such circumstances the employer, even though a public employer, has the right to discharge such employee with or without cause. Nicoletta v. North Jersey Dist. Water Supply , 77 N.J. 145, 150 (1978); English v. College of Medicine and Dentistry , 73 N.J. 20, 23 (1977); Williams v. Civil Service Comm'n , 124 N.J. Super. 444 (App. Div. 1973), aff'd 66 N.J. 152 (1974); Board of Regents v. Roth , 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). It follows that no property interest is implicated such as to invoke the due process shield. Nicoletta v. North Jersey Dist. Water Supply, supra 77 N.J. at 154; Board of Regents v. Roth, supra.
Plaintiff recognizes this principle but contends the failure to give him a post-termination hearing deprived him of his liberty under the Due Process Clause. Specifically, he contends the adverse publicity which accompanied his termination, as well as the abrupt nature of the ...