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In re Fitzgerald

Decided: February 10, 1983.

IN RE VINCENT J. FITZGERALD


On appeal from a final decision of the Director of the Division of Motor Vehicles.

Matthews, Antell and Francis. The opinion of the court was delivered by Matthews, P.J.A.D.

Matthews

This is an appeal from a final decision of the Director of the Division of Motor Vehicles, revoking appellant Fitzgerald's authority to serve as motor vehicle agent in Dunellen, Middlesex County. Appellant's request for emergent relief to stay that order was denied by this court on December 10, 1982. In the interest of all parties concerned, we agreed to hear the appeal on an accelerated basis and scheduled oral argument for January 25, 1983.

Appellant was designated to serve as motor vehicle agent in Dunellen on September 17, 1967 by a former Division Director, and has served as the designated agent in Dunellen for the past 15 years. On November 8, 1982 appellant was advised by the current Director that his agency was being terminated effective the close of the business day on December 10, 1982. On November 9, 1982 the Director designated another as the new motor vehicle agent for Dunellen effective December 13, 1982, who has been serving as the agent in Dunellen since that date.

Appellant is the holder of an exempt fireman's certificate and contends that his agency cannot be revoked by the Director

except for "good cause after a fair and impartial hearing." N.J.S.A. 40A:14-60. The sole issue presented in this appeal is whether that exempt fireman's certificate protects him from removal under N.J.S.A. 39:3-3.

The appointment and removal powers of the Director of Motor Vehicles over motor vehicle agents are set out in N.J.S.A. 39:3-3. Pursuant to that statute:

The director shall designate at least 1 person in each county for each 300,000 inhabitants or fraction thereof to be his agent for the registering of motor vehicles, issuing registration certificates and licensing of drivers, subject to the requirements of this subtitle and to any rules and regulations the director imposes. The agent shall so act until his authority is revoked by the director. All moneys received by such agents for the registrations and licenses granted under the provisions of this chapter shall forthwith be deposited as received with the State Treasurer. The fee allowed the agent for registration certificates issued by him and for every license granted by him shall be fixed by the director on the basis of the registration or license fees collected by the agent. The director may limit the fee so paid to a maximum. Such fee shall be paid to the agent by the State Treasurer upon the voucher of the director in the same manner as other State expenses are paid. [emphasis supplied]

Appellant contends that N.J.S.A. 39:3-3 cannot be applied in this instance due to the fact that he holds an exempt fireman's certificate. In support of his position he relies on N.J.S.A. 40A:14-60, which provides:

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. [Emphasis supplied]

The threshold question is whether appellant holds an "office, position or employment of the State" and thus is entitled to protection under the act.

In Carluccio v. Ferber, 18 N.J. Super. 473 (App.Div.1952), this court was faced with the related issue of whether a motor vehicle agent was protected from dismissal under the provisions of the Veterans' Tenure Act, N.J.S.A. 38:16-1 et seq. In refusing to ...


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