Yanoff, J.s.c. (retired and temporarily assigned on recall).
Most of the facts in this case are not in dispute.
On January 5, 1976, pursuant to N.J.S.A. 30:8-15, Albert Collier was appointed Warden of the Essex County Jail for a three-year term. He was reappointed January 1979, thus obtaining tenure. N.J.S.A. 30:8-15.2.
Collier died in office on July 29, 1984. By request for "personnel action" addressed to the New Jersey Department of Civil Service, Local Government, signed by Butler October 24, 1984, certified by the appointing authority (presumably signed
by Peter Shapiro, then County Executive, without date) and carrying "effective date November 5, 1984," Butler was designated a nonclassified appointment "recorded in accordance with . . . N.J.S.A. 30:8-15." This document contains other dates which seem insignificant. I conclude that the designation of Butler as an unclassified appointment was approved by an agent of the Civil Service Department under date of December 18, 1984.
The board of freeholders, by resolution dated December 12, 1984, presented Butler with a plaque which "congratulates" him on his appointment as warden.
On December 5, 1986, Nicholas R. Amato, newly elected County Executive, wrote to Butler:
As you are aware, I will assume the duties of County Executive on January 1, 1987 and it is essential that I have my management team in place shortly thereafter. As a matter of professional courtesy, therefore, I would like to receive a letter from you resigning from your current position effective January 1. I would like to receive your letter by Monday, December 15, 1986, at the transition team office.
In the event you are interested in serving within my administration in your current or some other capacity, please indicate the same in separate correspondence. Kindly include your resume and a statement of your managerial accomplishments, as well. Your expression of interest will receive my utmost consideration as I attempt to shape the direction of County government for the next four years.
Butler, in answer, sent two letters, both dated December 16, 1986. One read, "In response to your request stated in your 12-5-86 letter to me, please find attached my letter of resignation, effective 1-1-87." The second letter begins:
In response to your letter of 12-5-86 please be advised that I am most interested in serving your Administration and maintaining my position as Warden of the Essex County Jail.
There followed Butler's statements as to his qualifications for appointment.
After taking office, Amato sent Butler a "Notice of Termination," stating:
After very careful deliberation, I regret to inform you that I have decided to accept your resignation as Warden, effective today, January 2, 1987.
My decision was neither easy nor pleasant as I am aware of your contributions to Essex County Government. I feel, however, that changes are a natural part of public sector administration and I am exercising my prerogative to appoint individuals who are more closely attuned to my philosophy of government.
Butler now claims that he did not effectively resign, and that he, rather than his successor, is entitled to the office of Warden of Essex County. He asserts also that his appointment in December 1984 was for a three-year term, beginning with the date of his appointment. Additionally, he argues that his failure to continue in office under the new regime constituted a violation of his First Amendment rights, as enunciated in Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980). He claims also that his resignation was not effective for reasons which need not be examined*fn1 because I have concluded that he is not entitled to the office of warden.
On Butler's behalf, it was first argued that he was appointed as Collier's successor on December 4, 1984, to a four-week term, and then reappointed by the county executive in January 1985 to a three-year term. When no evidence appeared as to appointment in 1985, he argued that his appointment in December 1984 had been to a three-year term. The affidavit of the county executive then in office as to this reads, in pertinent part:
5. On December 4, 1984, I appointed Larry Butler to the position of Warden of Essex County pursuant to N.J.S.30:8-15 to a three-year term de novo. Said appointment did not require approval by the Essex County Board of Chosen Freeholders, ...