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Tate v. Amato

Decided: October 5, 1987.

HERBERT H. TATE, JR., IN HIS CAPACITY AS THE PROSECUTOR OF ESSEX COUNTY, PLAINTIFF-RESPONDENT,
v.
NICHOLAS R. AMATO, IN HIS CAPACITY AS ESSEX COUNTY EXECUTIVE, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Essex County.

Deighan, Cohen and Landau. The opinion of the court was delivered by Landau, J.A.D.

Landau

[220 NJSuper Page 237] This is an appeal by defendant Essex County Executive, Nicholas A. Amato (the Executive), from an order of June 22, 1987 entered by the Assignment Judge of Essex County after summary proceedings in an action in lieu of prerogative writ. The order directed that the Executive immediately process certain personnel forms necessary to enable plaintiff-respondent, Essex County Prosecutor Herbert H. Tate, Jr. (the Prosecutor),

to fill certain vacant positions in his office. The order has been stayed. Leave was granted to the Essex County Board of Chosen Freeholders (Board) permitting them to intervene. At oral argument, we were informed that the Board joined in the arguments made by the Executive.

We reverse.

The facts are essentially uncontroverted. The Executive refused to execute personnel forms for six assistant prosecutors, one legal assistant, seven law interns, five clerk-typists and one clerk-stenographer. The Prosecutor filed a complaint and secured an order directing the Executive to show cause why a mandatory order should not be entered directing that the personnel forms be executed. Prior to argument on return of the order, five personnel forms were processed. The Executive says that the remaining forms could not be processed because the new hires would create a budget deficit when the impact of their hiring was projected to year-end.

It is not disputed that if all of the new hires were processed,*fn1 absent any other increases or decreases in actual expenditures through factors such as attrition or governmental grants, the deficit of $193,000 previously projected for 1987 in the Prosecutor's budget approved for that year would escalate to at least $308,000.

The Prosecutor says, however, that he fully intends to live within the approved budget, and that if additional federal or state grants, or attrition, do not resolve the projected budget deficiency, he will lay off sufficient unclassified at-will employees to maintain the budget.

Inasmuch as the order under review was stayed, the projected deficiency has necessarily decreased, partly because of non-processing of new hires, and partly because of actual attrition. Except for the budget issue, there is no present question about

authorization of the additional prosecutor positions or the amount of their salaries.

During the pendency of the present litigation, the County of Essex adopted a budget appropriating $11,900,000 to the Prosecutor's office, including $10,984,344 for salaries and wages.

Although N.J.S.A. 2A:158-15(a) provides for the appointment of only 15 assistant prosecutors in counties of the first class such as ...


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