On certification to the Superior Court, Appellate Division, whose opinion is reported at 190 N.J. Super. 256 (1983).
For affirmance and remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For reversal -- None.
This appeal, on certification granted, 94 N.J. 587 (1983), calls for interpretation of N.J.S.A. 40A:5-22, a section of the Local Fiscal Affairs Law, N.J.S.A. 40A:5-1 to -42, that has been on the books in one form or another for over a century. See North Bergen Township v. Gough, 107 N.J.L. 424, 427 (Sup.Ct.1931). In its current form the statute permits a judge of the Superior Court, in his discretion and in response to a petition of twenty-five taxpayers or a resolution of the governing body, to make a summary investigation into the affairs of any local unit.
The Burlington County Board of Chosen Freeholders (Board) filed a resolution with the Assignment Judge requesting a summary investigation into the "affairs of the office of the
Burlington County Sheriff", to the end that "alleged irregularities" in the operation of that Office might be "independently and impartially" explored. Judge Haines determined that the investigation should go forward, In re Burlington County Freeholders Bd., 188 N.J. Super. 343 (Law Div.1983), and that it should be undertaken by the Public Advocate. Id. at 354. The Appellate Division affirmed, "substantially for the reasons expressed by Judge Haines * * *." 190 N.J. Super. 256, 257 (1983). We affirm.
Shortly after the opening, in September 1982, of Burlington County's new Courts Facility there surfaced charges and counter-charges between Sheriff Francis Brennan and members of his staff, generally concerning security in the new courtrooms and particularly the Sheriff's handling of security officers assigned to the new facility. In time the dispute attracted the attention of the public press, which reported judges' complaints about the lack of a sufficient number of guards assigned to the task of transporting prisoners, officers' charges of manipulation of personnel designed to support the Sheriff's claimed need for more manpower, and details of an escalating dispute between the Board and the Sheriff. An editorial suggested that the Sheriff's tactics resulted in a waste of taxpayers' money.
In response to these and other complaints the Board, on the advice of the County Solicitor, obtained affidavits from nine former and current Sheriff's office employees. Those affidavits, together with press clippings and a memorandum from the County Clerk to Sheriff Brennan, were attached to a resolution of the Board calling for an investigation. As recited by Judge Haines,
[t]he resolution states in part that conduct of the Sheriff's office has raised serious questions regarding the safety of the public, the judiciary and the expenditure of public funds. It suggest[s] the need for an independent investigation into the affairs of the office of the Burlington County Sheriff. The resolution is supported by affidavits and newspaper clippings. They state that union members are being discriminated against; officers are guarding empty
cells; applications by prospective employees are being discouraged; Sheriff's officers are being used for the private purposes of the Sheriff; qualified officers are being denied the right to carry firearms when transporting prisoners; selected employees are being denied the right to use the County Sheriff's lounge and the County cafeteria; false representations are being made concerning employment openings; process servers are permitted to participate in conflicts of interest; employees are being suspended without cause; women are discriminated against; false information is disseminated to avoid Civil Service regulations; and the Sheriff has failed to provide the courts with adequate security personnel, such personnel being available and hidden for the purpose of supporting the Sheriff's position that he needs more employees. [188 N.J. Super. at 345.]
The statute in question, N.J.S.A. 40A:5-22, reads in full as follows:
A judge of the Superior Court may, in his discretion, make a summary investigation into the affairs of any local unit and appoint an expert or experts to prosecute such investigation whenever
a. a petition for such investigation shall be presented to him, signed by 25 freeholders, who have paid taxes on real estate located within the local unit within 1 year, and such petition sworn to and subscribed by them sets forth that they have cause to believe that the moneys of such local unit are being, or have been, unlawfully or corruptly expended, in which case, at least 10 days' notice of the hearing thereon shall be given to the disbursing officer and the governing body of the local unit; or
b. a resolution of the governing body requesting such investigation shall be presented to him.
Upon receipt of the Board's resolution the trial court ordered the Sheriff to show cause why the investigation should not be conducted. After preliminary argument on the order the court concluded that "the arguments advanced against pursuit of the resolution are not successful." It therefore furnished the Sheriff with copies of the supporting material that had accompanied the resolution, so that the Sheriff would have an opportunity to file counter-affidavits. A date was set for argument on the question of "whether [the court's] discretion should be exercised in the direction of ordering the requested investigation, that argument to be limited to the issue of whether the supporting proofs are such as to require that action."
The Office of the Sheriff then filed a counter-affidavit, characterized by the trial court as "substantial," addressing each of the assertions contained in the Board's resolution and in the
materials that accompanied the resolution. The trial court summarized the contents of the Sheriff's document:
In it, he denies all of the specific allegations of misconduct providing various explanations. He states that prospective employees are told about the risks and hardships of the job, all of which are real and may be discouraging to applicants; It is his obligation, however, to tell them the facts. He has never intended discouragement and has never discriminated against women or union members. Civil service regulations have always been followed. The only private interest of the Sheriff in which his employees are involved is a long-standing program involving the delivery of Christmas baskets to the needy. Any services performed by his employees in this connection do not interfere with their duties. The decision as to what employees may carry guns is a management decision. The exercise of this prerogative has not been discriminatory; many officers, both male and female, are not authorized to carry guns. It is true that employees have been denied the right to use the Sheriff's lounge. This is a matter of judgment. It has been considered advisable to limit that use in order to prevent loafing on the job. It is also true that Sheriff's officers are serving process for the District Court and may do so when working for the Sheriff. The arrangement, however, has been approved by a succession of Superior Court judges. The fact that Sheriff's officers may be guarding empty cells from time to time is not of significance. These cells are empty one moment and filled the next and it is entirely appropriate to have men stationed in them at all times. Finally, the Sheriff notes that no grievance has ever been filed by any of his employees, including those who signed the affidavits supporting the Freeholders' resolution. [188 N.J. Super. at 346-47.]
At the argument on whether the court's discretion should be exercised in favor of an investigation, the Sheriff contended that N.J.S.A. 40A:5-22 is not applicable to his office because the Sheriff is not a "local unit" as defined by statute but rather is a "public officer in the state government" -- this, because he is a constitutional officer created by the New Jersey Constitution of 1947, article 7, section 2, paragraph 2. The Sheriff argued further that an order permitting an investigation to go forward would amount to an abuse of discretion because the claims upon which the resolution was based were not connected to the unlawful or corrupt expenditure of public funds; that other courts and administrative agencies had primary jurisdiction over the claims raised; that the claimants had failed to exhaust their administrative remedies; that the allegations were not of serious misconduct; that the claims were stale; and
that the claims concerned decisions of the Sheriff within his managerial prerogative.
Although the trial court concluded that the Sheriff's proofs were at least arguably "much stronger" than the proofs presented by the Board, it nevertheless exercised its discretion in favor of the application for an investigation. 188 N.J. Super. at 354. In his comprehensive opinion Judge Haines held that the Constitution did not protect the occupant of the sheriff's office from investigation, id. at 348; that the statute should be construed to apply to sheriffs and to encompass the claims set forth in the Board's resolution, id. at 349-50; and that none of the Sheriff's contentions stood in the way of an investigation of his office, id. at 352-54. Because the members of the Board had "sufficiently established their belief that serious misconduct had occurred in connection with the operation of the Sheriff's office", Judge Haines exercised his discretion in favor of the application, id. at 354, a result with which the Appellate Division agreed, 190 N.J. Super. at 257, as do we. Our affirmance of the judgment below is based substantially on the reasoning of Judge Haines as supplemented by the following discussion.
Before addressing the problem of interpreting the operative statute, N.J.S.A. 40A:5-22, we take up the Sheriff's contention that his status as a constitutional officer puts his office beyond the reach of the statute. The few cases that discuss the significance of the sheriff's constitutional status are not unanimous in defining the relationship of that office to the county; but we conclude that the weight of reason and authority support the view that the sheriff and his office are part of county government.
We note first that the sheriff's office is referred to by name in the Constitution only in connection with the manner of his election (by the people of the county at general election) and the
term of office (three years). See N.J. Const. of 1947, art. 7, § 2, para. 2. That hardly lends support to the contention that the sheriff cannot, for purposes of the statute under review, be considered a part of the county structure, or that he must be looked upon as a state employee exclusively. As with other officials, the sheriff may serve two masters, depending on what function he is performing. See Dunne v. Fireman's Fund Am. Ins. Co., 69 N.J. 244, 250 (1976) (county detectives were agents of State for purposes of executing affidavit in support of search warrant and of conducting search, but were employees of County for certain administrative and remunerative purposes).
In this connection we find significant the organizational scheme adopted by the legislature in the arrangement of the statutes. The enabling legislation pertaining to sheriffs is found in Laws of 1971, chapter 200, the preamble of which identifies the enactment as "[a]n Act covering county and municipal officers and employees * * *." Section B, entitled "Counties," contains the statutes concerning eligibility for the office of sheriff (codified at N.J.S.A. 40A:9-94); the sheriff's oath (N.J.S.A. 40A:9-96); the effect of the failure of the sheriff-elect to qualify (N.J.S.A. 40A:9-101); vacancy in the office of sheriff (N.J.S.A. 40A:9-102); bond and oath of appointee to fill vacancy in the office of sheriff (N.J.S.A. 40A:9-103); salary of sheriff in certain counties (N.J.S.A. 40A:9-104); expenses payable to sheriffs (N.J.S.A. 40A:9-105); uncollected fees credited to account of former sheriff (N.J.S.A. 40A:9-106); sheriff to deliver to his successor certain moneys and papers (N.J.S.A. 40A:9-107); prohibition on sheriff holding other civil office (N.J.S.A. 40A:9-108); amercement of sheriff or acting sheriff (N.J.S.A. 40A:9-109); court-designation of enforcement officer when ...