On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-7652-00.
Before Judges Stern, Lintner and Hoens.
The opinion of the court was delivered by: Hoens, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiffs Janet Jordan and the Camden County Superior Officers Association appeal from the order of the Law Division judge dismissing their complaint for failure to state a claim on which relief may be granted. We reverse and remand.
Plaintiff Jordan was hired by the Camden County Prosecutor's Office in 1981 as an investigator and was promoted to senior investigator in 1992. She was promoted in October 1998 to the position of Sergeant II and transferred to the Grand Jury Unit thereafter. In November 1999, Jordan was summoned by defendant Lee Solomon, the Camden County Prosecutor, to a meeting at which she was served with a notice of disciplinary action setting forth five separate charges against her and was summarily demoted to the lower grade of senior investigator.
The Camden County Superior Officers Association, which is the exclusive bargaining representative for all superior officers employed by defendants, including Jordan, filed a grievance with the prosecutor. That grievance was based upon the applicable collective bargaining agreement, which set forth a three-step grievance procedure, the final step of which, concededly, is an appeal to the prosecutor who was vested with the final decision. It was based as well, however, on the Standard Operating Procedures (SOPs) adopted by the prosecutor pursuant to that collective bargaining agreement, which identified a series of potential disciplinary infractions, including the ones with which Jordan was charged, and which established a system of progressive discipline.
On December 7, 1999, the prosecutor's office issued a memorandum to Jordan to the effect that the prosecutor was not inclined to alter his decision to demote Jordan summarily. On January 6, 2000, Jordan and her attorney met with the prosecutor to discuss Jordan's response to the allegations that had led to her demotion. In June 2000, the prosecutor issued a further decision declining to reinstate Jordan to the position from which she had been demoted.
Jordan and the Association filed suit alleging a variety of federal and state claims. The federal claims were dismissed by the federal court following removal of the complaint to that forum. Thereafter, the case was remanded for consideration of the state law claims and it is only the Law Division judge's dismissal of those state claims that is now before us.
The Law Division judge granted the defendants' motion and dismissed all of plaintiffs' state claims*fn1 on the ground that they failed to state a claim on which relief may be granted. R. 4:6-2(e). The essence of his analysis was that the prosecutor had an unfettered statutory right to hire and fire investigators, including Jordan, that Jordan was an at-will employee subject to discipline or termination at any time and that the prosecutor's right to demote her could not be limited by the SOPs his office adopted setting forth a system of progressive discipline. We disagree.
The governing statute, N.J.S.A. 2A:157-10, unquestionably gives the prosecutor both the authority and the discretion to hire and fire county investigators, who serve at the pleasure of the prosecutor, providing in relevant part as follows:
In addition to the office of county detective, there is created in the office of the prosecutor, the office or position of county investigator which shall be in the unclassified service of the civil service. The prosecutor of each of the several counties of this state may appoint such number of suitable persons, not in excess of the number, and at salaries not less than the minimum amounts, in this act provided, to be known as county investigators, to serve at his pleasure and subject to removal by him, and to assist the prosecutor in the detection, apprehension, arrest and conviction of offenders against the law.
Based on this statutory language and relying on decisions of this court and the Supreme Court construing analogous statutes, the motion judge determined that plaintiffs had failed to state a claim within the terms of the statute and he rejected their contention that the SOPs created a contract which limited the exercise of the prosecutor's discretion, concluding that such an analysis would be contrary to the clear language ...