The opinion of the court was delivered by: Verniero, J.
On certification to the Superior Court, Appellate Division, whose opinion is reported at 317 N.J. Super. 64 (1998).
Plaintiff, Howard Golden, commenced this action challenging his discharge from the position of assistant county prosecutor in the Union County Prosecutor's Office. By statute, assistant prosecutors serve in their positions "at the pleasure of the respective prosecutors . . . ." N.J.S.A. 2A:158-15. This appeal requires us to consider the interplay between that statutory provision and certain language contained in an employee manual in existence at the time of plaintiff's removal. The narrow issue is whether the prosecutor must conduct an internal hearing pursuant to the manual before discharging plaintiff or whether the statute allows for plaintiff's immediate dismissal.
The trial court found in favor of defendants, concluding that the manual's requirement of a hearing, if applied in this instance, would impermissibly infringe upon the prosecutor's statutory prerogatives. The Appellate Division disagreed, holding that the procedural aspects of the manual could be harmonized with the prosecutor's "unfettered right to hire and discharge assistant prosecutors." Golden v. County of Union, 317 N.J. Super. 64, 67 (App. Div. 1998). The panel directed the prosecutor to conduct a hearing. Id. at 72. We granted defendants' petition for certification, and denied plaintiff's cross-petition involving the question of remedies, 160 N.J. 479 (1999). We now reverse.
Plaintiff was employed by Union County as an assistant prosecutor at the Union County Prosecutor's Office from 1977 to February 24, 1995, the day he was discharged. On that day, plaintiff reacted to a work assignment by delivering what another employee described as a "tirade." Specifically, plaintiff was assigned to work on a particular matter with a female colleague whom he regarded as inexperienced and unacceptable as a trial partner. The trial supervisor who observed plaintiff's reaction described it this way: "Golden . . . exploded, his voice becoming louder, berating the new assignment and other matters, using expletives throughout this tirade. He then turned and left. His unprofessional conduct left me speechless." Unfortunately, the assistant prosecutor whose competency plaintiff questioned overheard the outburst.
Plaintiff's reaction was immediately reported to then Prosecutor Andrew K. Ruotolo, Jr. The prosecutor convened a meeting, attended by his senior aides, to review the matter. The trial supervisor summarized the meeting, stating "[i]t was clear a breach of professional conduct had occurred. There was a discussion about Golden's past negative conduct. It was then determined among those present dismissal was appropriate."
The prosecutor asked plaintiff to join the meeting, during which the prosecutor expressed his disapproval of plaintiff's conduct. Plaintiff responded with a litany of his own complaints, including his displeasure at being paired with the specific attorney. According to the deputy trial supervisor, who was also in attendance:
Inside the [prosecutor's] office, Prosecutor Ruotolo told Assistant Prosecutor Golden how upset he was to learn of the incident and what was said about [the other assistant prosecutor]. Assistant Prosecutor Golden once again expressed his displeasure over his lack of raises; his assignments with respect to judges, trial partners and secretaries . . . . After some thought, the prosecutor turned to Assistant Prosecutor Golden and indicated he had heard enough. Assistant Prosecutor Golden was then told that his position was terminated.
The prosecutor afforded plaintiff thirty days to find a new job. He was terminated as of February 24, 1995, but remained on the payroll until March 24, 1995.
In April 1995, plaintiff's counsel asserted in a letter to defendants that plaintiff's discharge constituted a breach of an implied contract allegedly formed by the provisions of the Manual of Administrative Policies and Procedures for Members of the Union County Prosecutor's Office (the "employee manual" or "manual"). In support of that claim, plaintiff pointed to those provisions contained in section 5 of the manual establishing procedures (the "section 5 procedures") to be followed prior to an employee's removal. Those procedures include:
that formal written charges be provided an employee subsequent to the prosecutor approving the recommended form of discipline; that a preliminary notice of disciplinary action be served on the accused employee; that a hearing be scheduled not less than fifteen or more than thirty calendar days after the date of service of the notice (a "section 5 hearing"); that the notice shall inform the employee of the right to be represented by counsel; that the hearing officer shall be the prosecutor or his designee; that the party charged, at his or her own expense, may bring a certified shorthand reporter to record the proceedings; and that a final notice of disciplinary action be issued at the conclusion of the process.
Plaintiff's request for a section 5 hearing was denied.
Thereafter, plaintiff commenced this action by filing a complaint in the Law Division on January 22, 1997. The complaint alleges that the prosecutor's failure to abide by the section 5 procedures constituted a breach of contract. The complaint demands plaintiff's reinstatement to his prior position with back pay and interest or prospective lost wages, together with costs of suit and counsel fees.
Defendants filed nearly identical answers. The answers deny that a contract was formed between plaintiff and defendants and assert that the prosecutor had discretion to terminate plaintiff without conducting a hearing. The answers further assert that any restriction on the prosecutor's right to hire and discharge a member of his attorney staff would be void as against the public policy of the State. They claim that because plaintiff was an employee who served at the pleasure of the prosecutor pursuant to N.J.S.A. 2A:158-15, the manual's section 5 procedures do not apply to him.
Defendants also plead as an affirmative defense that the manual contains language sufficient to disclaim the formation of any contract. In that regard, the preface to the section 5 procedures contains this general statement:
General Statement - Within the limitations set forth in existing law and applicable Civil Service law, the Office disciplinary authority and responsibility rests with the Prosecutor or his designee. Except for oral reprimands and emergency suspensions, Office discipline must be exercised or approved by the Prosecutor or his designee.
In essence, the pleadings assert that in referring to "the limitations set forth in existing law," the statement is consistent with defendants' belief that the section 5 procedures are not enforceable on these facts.
Both sides moved for summary judgment. In denying those motions, the trial court concluded that resolution of plaintiff's complaint would turn on whether plaintiff "had a reasonable expectation that the prosecutor by the promulgation of the manual . . . was surrendering his right to terminate assistant prosecutors without notice and hearing." The trial court determined that resolution of that question would require testimony or further evidence and could not be resolved on a motion for summary judgment. Plaintiff filed a motion for reconsideration, arguing that the prosecutor's intent concerning whether the manual should apply to assistant prosecutors was a question of law and thus appropriate for summary disposition. The trial court denied that motion as well.
Subsequent to the disposition of those initial motions, this Court decided Walsh v. State, 147 N.J. 595 (1997), a case involving the Public Defender's failure to honor a purported agreement to promote a deputy public defender. A divided panel of the Appellate Division upheld the agreement; we reversed that judgment substantially for the reasons expressed in Judge Skillman's dissenting opinion. Ibid.
Similar to the statute at issue here, the statute in Walsh provided that any person appointed to the position of deputy public defender "shall serve at the pleasure of the Public Defender and shall receive such salaries as he shall from time to time designate." N.J.S.A. 2A:158A-6. In considering that statute, Judge Skillman reasoned that the promised promotion was unenforceable, stating "the Public Defender . . . could not have made an enforceable agreement to promote plaintiff at some future date, because such an agreement would be inconsistent with the legislative mandate that all [a]assistant [d]eputy [p]ublic [d]efenders serve at the pleasure of the Public Defender. . . ." Walsh v. State, 290 N.J. Super. 1, 16 (1996)(Skillman, J.A.D., dissenting).
Following the disposition in Walsh, defendants filed a motion to dismiss, which the trial court granted by letter opinion dated June 9, 1997. In essence, the trial court determined that the Walsh rationale applied to the present case and that the issues should be resolved as a matter of law. The court concluded:
The plaintiff argues that [t]he [m]anual should be read as affording an [a]assistant [p]rosecutor an opportunity to be heard before the [p]rosecutor exercises his absolute right to discharge an [a]assistant [p]rosecutor. If [t]he [m]anual were read in that fashion it would, at the very least, impede and delay the [p]rosecutor's statutory right to immediately terminate an [a]assistant [p]rosecutor and it would open the door to protracted litigation as to whether there was strict adherence to provisions in [t]he [m]anual regarding notice, hearing, counsel and the like. Further, as stated earlier, [t]he [m]anual is unenforceable as it regards the termination of ...