(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued January 3, 2000 -- Decided May 9, 2000
VERNIERO, J., writing for a majority of the Court.
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 the Court to consider whether a prosecutor must conduct an internal
hearing pursuant to an employee manual prior to discharging an assistant prosecutor, or whether the statute allows
the prosecutor to dismiss the assistant prosecutor immediately.
Howard Golden was employed as an assistant prosecutor in the Union County Prosecutor's Office from
1977 to February 24, 1995, the day of his discharge. On that day, Golden reacted to a work assignment by
delivering what another employee described as a “tirade.” The trial supervisor who observed Golden's reaction
stated that Golden “exploded,” becoming loud, using expletives, and questioning the competence of a colleague that
was assigned to assist him. That colleague overheard the outburst.
Golden's reaction was immediately reported to then Prosecutor Andrew K. Ruotolo, Jr., who convened a
meeting of his senior aides. The trial supervisor who attended the meeting stated that it was clear that a breach of
professional conduct had occurred. There was a discussion about Golden's past negative conduct. It was
determined among those at the meeting that dismissal was appropriate. The prosecutor asked Golden to join the
meeting and the prosecutor expressed his disapproval. Golden responded with a litany of his own complaints,
including his displeasure at being paired with the specific attorney. The prosecutor told Golden that he had heard
enough and that his position was terminated. The prosecutor afforded Golden thirty days to find a new job,
permitting him to remain on the payroll during that period.
In April 1995, Golden's attorney asserted in a letter that the discharge constituted a breach of an implied
contract allegedly formed by provisions of an employee manual. Those provisions included procedures to be
followed prior to removal, including: formal written charges and notice of disciplinary action; a hearing between 15
and 30 days after service of the notice; the notice must inform the employee of the right to be represented by
counsel; and a final notice of disciplinary action shall issue at the conclusion of the process. The prosecutor took
the position that the procedures did not apply to assistant prosecutors. Golden filed a complaint alleging that the
failure to abide by the manual procedures constituted a breach of contract. The complaint demanded Golden's
reinstatement to his prior position with back pay and interest or prospective lost wages, together with costs of suit
and counsel fees.
The trial court granted defendants' motions to dismiss, relying on this Court's decision in Walsh v. State,
147 N.J. 595 (1997)(oral agreement by Public Defender to promote a deputy public defender at a future date is
unenforceable because inconsistent with statutory mandate that deputy public defenders serve at the pleasure of the
Public Defender). The trial court found that requiring a hearing in accordance with the manual would impede and
delay the prosecutor's statutory right to immediately terminate an assistant prosecutor.
The Appellate Division reversed, holding that the procedural aspects of the manual could be harmonized
with the prosecutor's statutory right to hire and discharge assistant prosecutors. Golden v. County of Union,
317 N.J. Super. 64 (App. Div. 1998). It ordered the prosecutor to conduct a hearing. This Court granted defendants'
petition for certification and denied Golden's cross-petition involving the question of remedies.
HELD: The employee manual's provisions requiring a hearing prior to termination are not enforceable as to
assistant prosecutors because the statute unambiguously designates assistant prosecutors as at-will employees.
1. N.J.S.A. 2A:158-15 creates an at-will employment relationship between the prosecutor and all assistant
prosecutors like Golden. The reported cases that have touched on the hiring and firing prerogatives of a county
prosecutor have uniformly been resolved in favor of the prosecutor. (Pp. 9-12)
2. This Court's recent decision in Walsh is consistent with the principle that public employers retain wide latitude
in hiring and firing employees who serve in at-will, statutorily-created positions. In Walsh, this Court reversed the
majority of the Appellate Division (which concluded that the contract was enforceable) based on Judge Skillman's
dissent. Judge Skillman noted that the majority's conclusion was based on private sector employment decisions
recognizing implied-in-fact contracts in the at-will employment setting. He explained that the relationship between
public officials and the agencies appointing them is not necessarily contractual in character, but is instead controlled
by the statutes pursuant to which the public official has been appointed. Although the Walsh statute pertained to the
Public Defender's Office, its operative language is similar to the text of the statute here. (Pp. 12-15)
3. In view of the clear statutory language establishing Golden's at-will employment status, it is not necessary to
address whether a public agency may be bound by an implied contract or whether the manual here represented such
a contract. The statute trumps whatever implied contract may have existed between the parties. The Court
disagrees with the conclusion of the Appellate Division (and the dissent) that the manual's procedures could be
enforced without unduly infringing on the prosecutor's substantive rights. Requiring the prosecutor to engage in a
lengthy process that includes the service of notice with built-in time delays and a formal hearing attended by
adverse counsel would limit the prosecutor's ability immediately to discharge a subordinate. That limitation would
be contrary to the statute. (Pp. 15-18)
4. Although the issue of damages is not before the Court, it became clear at oral argument that Golden considers the
hearing only the first phase of this litigation, and that he wishes to pursue a claim of monetary damages in the next
phase. This convinces the Court that its conclusion is correct. The Legislature simply did not intend for prosecutors
to be encumbered in their personnel actions or to be exposed to monetary damages for the discharge of a supposedly
at-will employee. (Pp. 18-23)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court
for entry of judgment in favor of defendants.
JUSTICE O'HERN, dissenting, is of the view that the procedures in the manual confer no substantive
rights on the employee and therefore do not unduly compromise the prosecutor's unfettered discretion. He further
states that a hearing may well forestall an incorrect decision.
CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI and COLEMAN join in JUSTICE
VERNIERO's opinion. JUSTICE O'HERN, joined by JUSTICE STEIN, has filed a separate, dissenting
opinion. JUSTICE LONG did not participate.
SUPREME COURT OF NEW JERSEY
A-
105 September Term 1998
HOWARD GOLDEN,
Plaintiff-Respondent,
v.
COUNTY OF UNION and THE UNION
COUNTY PROSECUTOR'S OFFICE,
Defendants-Appellants.
Argued January 3, 2000 -- Decided May 9, 2000
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
317 N.J. Super. 64 (1998).
Paul L. Kleinbaum and William T. Donegan
argued the cause for appellants (Zazzali,
Zazzali, Fagella & Nowak, attorneys for
Union County Prosecutor's Office and Carol
I. Cohen, Union County Counsel, attorney for
County of Union; Mr. Kleinbaum, Mr. Donegan
and Christine M. Nugent, on the joint
briefs).
Richard S. Lehrich argued the cause for
respondent.
The opinion of the Court was delivered by
VERNIERO, J.
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]ssistant [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]ssistant [p]rosecutor an opportunity to be heard before the [p]rosecutor exercises his absolute right to discharge an [a]ssistant [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]ssistant [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 an [a]ssistant [p]rosecutor because the concept of an implied-in-fact contract in the at-will employment setting is not recognized when dealing with public officials.
As noted, the Appellate Division reversed. It concluded that the manual constituted an implied contract and thus ordered a section 5 hearing. Golden, supra, 317 N.J. Super. at 70. This appeal followed.
Central to the disposition of this matter is N.J.S.A. 2A:158-15, which provides in part:
Assistant prosecutors in and for the respective counties may be appointed by the prosecutors of such counties as hereinafter provided, who shall hold their appointments at the pleasure of the respective prosecutors and shall, before entering upon the performance of the duties of their appointments, take, before a judge of the Superior Court or the Clerk of the Superior Court of the county in and for which they are appointed, an oath or affirmation to faithfully perform the duties of the office to the best of their ability.
On its face, the statute unambiguously creates an at-will
employment relationship between the prosecutor and all assistant
prosecutors, including plaintiff. The issue is whether the
statute compels us to sustain plaintiff's discharge or whether
any other statute or principle of law would require defendant to
conduct a section 5 hearing prior to imposing that discipline.
The reported cases that have touched upon the hiring and
firing prerogatives of a county prosecutor have uniformly been
resolved in favor of the prosecutor. Perhaps the clearest
example is this Court's decision in Cetrulo v. Byrne,
31 N.J. 320
(1960). In that case, the Board of Chosen Freeholders of Essex
County appointed the plaintiff to a legal assistant prosecutor
position for an indefinite term. The incoming acting prosecutor
sought the plaintiff's discharge. The plaintiff filed a
complaint in lieu of prerogative writ, alleging that as a veteran
of the armed services he was entitled to tenure pursuant to the
provisions of the Veterans' Tenure Act. (That act generally
provides procedural protections to employees who have served in
the armed services. N.J.S.A. 38:16-1 to -4.) This Court upheld
the plaintiff's discharge by citing, among other things, the
earlier version of N.J.S.A. 2A:158-15, the relevant portion of
which contained language nearly identical to its present text.
After reviewing the history of the prosecutor position from
the time of New Jersey's 1776 Constitution, we observed:
The Legislature as well as the courts have
long recognized the strong policy
considerations which dictate that since the
county prosecutor is charged with heavy
enforcement responsibilities he must be given
broad powers to appoint his own personnel;
thus he appoints his own assistant
prosecutors and investigators within the
maxima prescribed by statute . . . . Nowhere
have we found any statutory language which
supports the notion that an outside
legislative agency such as the board of
freeholders has the right to appoint
assistants to the prosecutor, particularly
legal assistants who are often entrusted with
high enforcement responsibilities in the
administration of justice comparable to those
exercised by the prosecutor himself.
. . . .
[T]he plaintiff expressly acknowledges that
“of necessity, for the proper functioning of
these high offices the incumbent must have
free [reign] to select and remove his very
close associates, to whom he entrusts
sensitive and private confidences.”
See also Casamasino v. City of Jersey City,
158 N.J. 333, 346
(1999) (noting in summarizing Cetrulo that legal assistant
prosecutor's “claim was rejected because an appointment to that
position is personal to each prosecutor and because the
Legislature intended to exclude a county prosecutor's
confidential employees such as legal assistants from acquiring
tenure under the [Veterans'] Tenure Act, N.J.S.A. 38:16-1”).
Likewise, in State v. Winne,
12 N.J. 152 (1953), the Court
recognized that the Legislature intended to confer wide latitude
upon county prosecutors to enable them to discharge their
responsibilities, including authority in respect of personnel
decisions. As Chief Justice Vanderbilt noted on behalf of the
Court:
The statutes reflect not a sporadic intent
but a fixed legislative policy to cast on the
county prosecutor responsibility for the
detection, apprehension, arrest and
conviction of criminals in his [or her]
county. Nor has the Legislature merely
imposed duties of vast importance to the
public on the county prosecutor. Not only
has it seen to it that his [or her] office is
staffed with assistant prosecutors, county
detectives and county investigators. It has
given him [or her] power not paralleled
elsewhere in the county to incur expenses in
“the detection, arrest, indictment and
conviction of offenders” against the law . .
. .
. . . .
Clearly the Legislature intended to give [the
prosecutor] dominant position and the primary
responsibility for the enforcement of the
criminal laws, not merely by conferring
authority on him [or her] but by giving him
[or her] the means of implementing such
authority.
See also Murphy v. Board of Chosen Freeholders of Bergen County,
110 N.J.L. 9 (Sup. Ct. 1932) (holding that county prosecutor has
inherent power to appoint investigators in absence of express
statutory authority).
Our recent decision in Walsh, supra,
147 N.J. 595, is
consistent with the principle that public employers retain wide
latitude in hiring and firing employees who serve in at-will,
statutorily-created positions. Although briefly summarized
above, the facts and holding in Walsh warrant additional
discussion.
The Walsh plaintiff was employed as an assistant deputy
public defender in the Public Defender's Bergen regional office
from 1980 to 1986, during which he received at least two
promotions. Walsh, supra, 290 N.J. Super. at 5. The plaintiff
voluntary left his public position to enter private practice.
Ibid. Two years later, in 1988, the person in charge of the
Public Defender's Hudson office invited the plaintiff to resume
his public employment. Ibid. The plaintiff was offered a
position at a level lower than the position he held in 1986 with
the understanding that he would be quickly promoted to his prior
senior position, conditioned only on his maintaining a
satisfactory work record. Id. at 5-7. The plaintiff accepted
the invitation and began work in July 1988. Id. at 7. Over the
course of the next three years the plaintiff was denied three
promotions. Ibid. The record indicated that the denials were
due to a continuing freeze on promotions; no one disputed that
the plaintiff “fully performed his duties in accordance with the
high expectations of the parties.” Id. at 6 n.4, 7.
The plaintiff filed suit seeking damages for breach of the
alleged oral agreement to promote him. The trial court ruled in
favor of the plaintiff, finding “'there was an offer. It was
reasonably understood by the plaintiff to be an offer. And he
accepted [by] performance.'” Id. at 9. A divided panel of the
Appellate Division affirmed. The majority concluded: “Only by
enforcing the promise made by the commissioner's duly delegated
representatives can defendants fulfill their obligations of good
faith and fair dealings to [the plaintiff] in these
circumstances.” Id. at 12.
Judge Skillman disagreed. He concluded that in establishing
an at-will relationship between the Public Defender and his or
her deputies pursuant to N.J.S.A. 2A:158A-6, the Legislature
intended to confer wide discretion on the Public Defender in
respect of employment matters. He described the authority of the
Public Defender as expansive in the personnel context, noting,
“so long as his personnel actions are not invidiously
discriminatory, the Public Defender has unfettered discretion in
determining when to hire, discharge, transfer, demote or withhold
promotion from an [a]ssistant [d]eputy [p]ublic [d]efender.” Id.
at 13. No voluntary promise by the Public Defender's Office
could infringe upon that discretion. Ibid. The dissent
disagreed with the contrary belief expressed by the majority,
explaining:
The majority's conclusion that subordinates
of the Public Defender made an enforceable
promise to promote plaintiff . . . rests upon
private sector employment decisions that
“have been willing to recognize implied-in
fact contracts in the at-will employment
setting.” (maj. op. at 10, 674 A.
2d at 993).
See Woolley v. Hoffmann-LaRoche, Inc.
99 N.J. 284,
491 A.2d 1257 (1985). However, the
relationship between an [a]ssistant [d]eputy
[p]ublic [d]efender and the Public Defender,
like the relationship between other public
officials and the agencies appointing them,
“is not ipso facto contractual in character,”
Espinos v. Township of Monroe,
81 N.J. Super. 283, 288,
195 A.2d 478 (App. Div. 1963), but
is instead controlled by the statutes
pursuant to which the public official has
been appointed.
[Id. at 15.]
In a unanimous decision, we reversed the majority on the basis of
Judge Skillman's dissent. Walsh, supra,
147 N.J. 595.
As indicated, although the Walsh statute pertained to the Public
Defender's Office, its operative language is similar to the text
of the statute at issue here.
Similarly, we do not need to decide whether the preface to the section 5 procedures is sufficient to disclaim the formation of an implied contract. Prosecutors may not limit their statutory prerogatives by issuance of a manual, regardless of the manual's text. Drawing a distinction between the manual's “procedural” requirements and the prosecutor's “unfettered right” to discharge plaintiff, the Appellate Division concluded that the section 5 procedures could be enforced without unduly infringing upon the prosecutor's substantive rights. Golden, supra, 317 N.J. Super. at 70. The dissent joins in that conclusion. Post at __ (Slip op. at 1).
We disagree. Because the procedural and substantive issues are so interwoven, it is not possible to separate them in the context of this case. For example, requiring the prosecutor to engage in a lengthy process that includes the service of notice with built-in time delays and a formal hearing attended by adverse counsel, would limit his ability immediately to discharge a subordinate. That limitation would be contrary to the statute.
As another example, we note that the disciplinary measures set forth in the manual indicate that an employee may be discharged for a variety of infractions (i.e., for cause), and that prior to the discharge, the prosecutor must conduct a hearing to determine that the infractions indeed occurred. Specifically, the manual defines the circumstances under which employees may be disciplined:
Employees, regardless of title, shall be subject to progressive disciplinary action, according to the nature of the offense. For failure, either willfully or through negligence or incompetence, to perform the duties of their title or assignment; or for violation of any General Order, section of this manual; or for failure to obey any lawful instruction, order or command of a Supervisor or Superior Officer, the Prosecutor or his assistants. Disciplinary action in all cases will be decided on the facts of each case.
Office of Employee Relations v. Communications Workers of America, 154 N.J. 98 (1998), on which plaintiff also relies, is distinguishable. In that case, we upheld the enforcement of a statutory right to arbitration pursuant to employment negotiations under N.J.S.A. 34:13A-5.3, notwithstanding the separate statute permitting the Public Defender unfettered discretion to terminate deputies at will. The dispute touched upon the interplay between two statutory provisions, whereas the present case involves a single statute with no competing statutory scheme.
Plaintiff does not contend that he is entitled to disciplinary procedures under a collective bargaining agreement negotiated pursuant to statute or some other pertinent law. That being the case, the principles enunciated in Office of Employee Relations do not control.
Accordingly, we hold that, so long as his actions are not invidiously discriminatory or contrary to some other pertinent law, the prosecutor may discharge plaintiff without a formal hearing, in keeping with the at-will relationship established by statute. Plaintiff has made no allegation of discrimination, nor has he pointed to any countervailing statute in support of his claim. Thus, his discharge is sustained.
The Legislature's mandate as embodied in N.J.S.A. 2A:158-15 would be thwarted if prosecutors could, by an implied agreement contained in an employee manual, abrogate or otherwise encumber their statutory prerogatives. We interpret the section 5 procedures collectively to be such an encumbrance; thus, they must yield to prosecutorial authority established by the statute. Prosecutors occupy the foremost role in the enforcement of laws within their respective counties, second only to the Attorney General. N.J.S.A. 52:17B-103 (providing Attorney General with express supervisory authority over county prosecutors); Winne, supra, 12 N.J. at 171. Commensurate with that role and responsibility, the Legislature has provided prosecutors with wide authority to structure, maintain, and manage their offices. Cetrulo, supra, 31 N.J. at 328; Zamboni v. Stamler, 199 N.J. Super. 378, 386 n.3 (App. Div. 1985). That authority would be seriously compromised if implied contractual requirements were engrafted into the process of hiring and discharging subordinates.
Noting the value of allowing employees the opportunity to be heard before being discharged, the Appellate Division observed: “There may well be situations in which . . . the [p]rosecutor may realize after the hearing that he [or she] had acted overhastily or in which the [p]rosecutor may conclude that a lesser disciplinary penalty is more appropriate.” Golden, supra, 317 N.J. Super. at 71. Similarly, the dissent expresses the view that the “fair thing to do” would be for the prosecutor to “take the small amount of time that would be required at least to hear the assistant prosecutor's side of the case.” Post at ___ (Slip op. at 4).
In that regard, the record indicates that plaintiff was, in fact, afforded the opportunity to speak face-to-face to the prosecutor to relay “his side of the case.” Although not required, the meeting that took place prior to the discharge allowed plaintiff to defend or explain his conduct. It also appears that the prosecutor acted in an informed manner, upon the advice of his senior staff, and was convinced that plaintiff's conduct warranted dismissal based on several eye-witness accounts. Although he did not follow precisely the section 5 procedures, the prosecutor did provide plaintiff a form of process, which, at a basic level, appears to have been fair. In addition, he offered the employee one month's grace to find other employment.
The Appellate Division and our dissenting colleagues also advance that a section 5 hearing would intrude only slightly on the operation of the Prosecutor's Office. However, it became clear at oral argument that plaintiff considers the remedy of a hearing to be part of only the first phase of this litigation. It appears that the plaintiff also wishes to pursue a claim for monetary damages in the “next phase” of what has already been a protracted suit. As part of his colloquy with the Court on the question of damages, plaintiff's counsel stated:
If the prosecutor should have followed the procedures and didn't _- what flows from that? Well, that hasn't been briefed; it is not before the Court because it was never reached below. But our contention would be that clearly the Court can't, no court can simply turn its back to the fact that if indeed there was a contract, which we believe there was, that if indeed there was a violation, that some damages would flow from that. . . . I do think that it's the next hurdle that Mr. Golden would have to deal with if he prevails here. And the courts below never reached that question. I think that it's something that will have to be faced if we get that far. . . . [The damages question would be] the next battleground. . . . I am concerned that the Appellate Division's remedy would be to go back to have the hearing now. . . . But it would put [plaintiff] in a situation which, pragmatically speaking, he could not possibly win. I think it's clear that the prosecutor now isn't going to say “oh yes, if this were presented five years ago, you would have prevailed.”
The prospect of a “next battleground” convinces us that we are correct in our conclusion. The Legislature simply did not intend prosecutors to be encumbered in their personnel actions or to be exposed to monetary damages for the discharge of a supposedly at will employee to the extent possible under the Appellate Division decision.
Lastly, it has been over five years since plaintiff's discharge. It is not disputed that even if forced to conduct a section 5 hearing, the prosecutor retains the sole discretion to discharge plaintiff. Prosecutor Ruotolo is now deceased and we were informed at oral argument that the manual itself has been rescinded. Additionally, the current prosecutor has made clear that plaintiff will not be rehired. The notion of rerunning the process at this late juncture has an air of futility to it. It is time for closure.
CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI and COLEMAN join in JUSTICE VERNIERO's opinion. JUSTICE O'HERN filed a separate dissenting opinion in which JUSTICE STEIN joins. JUSTICE LONG did not participate.
SUPREME COURT OF NEW JERSEY
A- 105 September Term 1998
HOWARD GOLDEN,
Plaintiff-Respondent,
v.
COUNTY OF UNION and THE UNION
COUNTY PROSECUTOR'S OFFICE,
Defendants-Appellants.
O'HERN, J., dissenting.
The Court holds today that adherence to agreed-upon
procedures, to afford assistant prosecutors a hearing before
firing them, impermissibly infringes on a prosecutor's
“unfettered right” to discharge from office an assistant
prosecutor. Ante at ___ (slip op. at 18). I respectfully
disagree primarily for the reasons stated by Judge Pressler in
the opinion of the Appellate Division reported at
317 N.J. Super. 64 (1998). Specifically, I agree that
[m]ost significantly, the Prosecutor's
adherence to [the Manual's] procedures confer
and has the capacity to confer absolutely no
substantive job rights on the employee,
unlike the case in Walsh. Chapter 5 does not
prescribe any substantive limitation on the
Prosecutor's exclusive disciplinary authority
either by defining conduct eligible for any
degree of discipline or by superimposing any
conditions or standards on the Prosecutor's
substantive disciplinary determination. Nor
does it provide for any mediation or
arbitration, and, clearly, in view of the
scope of the Prosecutor's authority pursuant
to N.J.S.A. 2A:158-15, there is no review of
or appeal from the Prosecutor's unilateral
decision. That is to say, the Manual's
adoption of applicable provisions of law with
respect to appeals must be read as
incorporating N.J.S.A. 2A:158-15, pursuant to
which there can be no appeal for at-will
assistant prosecutors. Moreover, there is
nothing in the disciplinary procedures
interfering with the Prosecutor's right to
suspend summarily an assistant prosecutor
pending the hearing. Thus, all that the
disciplinary procedures require is that the
assistant prosecutor be notified of the
charges against him and have a right to be
heard thereon by the Prosecutor. We do not
regard the holding of a hearing and the
maximum thirty-day delay in effecting
dismissal of a suspended employee as unduly
compromising the Prosecutor's unfettered
discretion, particularly in view of the
countervailing considerations.
[Id. at 70.]
I add only these observations. To hold that a prosecutor
cannot even agree to use fair procedures in discharging an
assistant prosecutor sends the wrong message to county
prosecutors in whom so much discretion is vested.
In its previous decisions, this Court has explained that
agreed-upon “procedures for implementing substantive decisions
. . . pose no significant threat of interference with the public
employer's ability to make substantive policy determinations.”
Council of N.J. State College Locals v. State Bd. of Higher Ed.,
91 N.J. 18, 33 (1982)(citing In re Local 195, IFPTE v. State,
88 N.J. 393, 417 (1982)); see also Bethelehem Township Bd. of Ed. v.
Bethlehem Township Ed. Ass'n.,
91 N.J. 38, 47 (1982)
(distinguishing between evaluation criteria and evaluation
procedures); State v. State Supervisory Employees Ass'n,
78 N.J. 54, 90-91 (1978)(concluding that “promotional criteria are not
manditorily negotiable while promotional procedures are so
negotiable”). Such procedures often have the beneficial effect
of making the decision maker's ultimate judgment a better one.
Local 195, supra, 88 N.J. at 409.
We have always viewed a prosecutor as holding a unique
position in the legal community whose duty is not just to obtain
convictions “but to see that justice is done.” State v. Ramseur,
106 N.J. 123, 320 (1987).
Society wins not only when the guilty are
convicted but when criminal trials are fair;
our system of the administration of justice
suffers when any accused is treated unfairly.
An inscription on the walls of the Department
of Justice states the proposition candidly
for the federal domain: “The United States
wins its point whenever justice is done its
citizens in the courts.”
[Brady v. Maryland,
373 U.S. 83, 87,
83 S.Ct. 1194, 1197,
10 L.Ed.2d 215, 218-19 (1963).]
In terms of justice, “[a]udi alteram partem [to hear the
other side] is said to be 'certainly the oldest established
principle in Anglo-American administrative law.'” Julian M.
Joshua, The Right to be Heard in EEC Competition Procedures, 15
Fordham Int'l L.J. 16 (1991)(quoting Bernard Schwartz, An
Introduction to American Administrative Law 105 (2d ed. 1962)).
What separates our system of law from all others is our
unflinching insistence on the value of procedure. It is the “Due
Process” of the law that is guaranteed by the Fifth Amendment,
not any particular substantive right.
I realize that the prosecutor who made the agreement with
his assistants has died, but I fail to understand why it is so
burdensome that a successor prosecutor could not take the small
amount of time that would be required at least to hear the
assistant prosecutor's side of the case. That is the fair thing
to do. Emerging democracies understand the value of fair
procedure.
The right to an administrative hearing is of
paramount importance because it compels a
decision-maker to see and hear the affected
individual and confront that person's side of
the dispute. As a result, a hearing may well
forestall an incorrect decision or cause an
agency to exercise discretion more favorably
to the individual than it otherwise would
have done. Beyond these utilitarian benefits,
a hearing is important because it safeguards
an individual's dignitary interest, treating
that person as a human being . . . .
[Michael Asimow, Toward a South African
Administrative Justice Act, 3 Mich. J. Race &
L. 1, 6-7 (1997).]
The Court should not hold that a prosecutor cannot agree to
be fair about implementing a decision to fire an assistant
prosecutor.
Justice Stein joins in this opinion.
NO. A-105 SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Superior Court, Appellate Division
HOWARD GOLDEN,
Plaintiff-Respondent,
v.
COUNTY OF UNION and THE UNION
COUNTY PROSECUTOR'S OFFICE,
Defendants-Appellants.
DECIDED May 9, 2000
Chief Justice Poritz PRESIDING
OPINION BY Justice Verniero
CONCURRING OPINION BY
DISSENTING OPINION BY Justice O'Hern