In the Matter of Prosecutor s Agents, Gloucester County Prosecutor s Office DOP Docket No. 2004-532 (Merit System Board, decided July 14, 2004) Richard A. Dann, President of the Communications Workers of America, Local 1085 (Petitioner), presents a challenge to the Gloucester County Prosecutor s Office (Respondent) appointment of additional Prosecutor s Agents beyond the limit set by the Department of Personnel in In the Matter of County Prosecutor s Agents (Merit System Board, decided May 23, 1989). A copy of that decision is attached hereto. By way of background, the title of Prosecutor s Agent was originally established by the Civil Service Act, at N.J.S.A. 11:4-4(s), and placed in the unclassified service. Moreover, N.J.S.A. 11:4-4(s) set forth the maximum number of Prosecutor s Agents that could be employed at any one time by Prosecutor s Offices on the basis of county population: Agents, investigators or special officers in the office of the prosecutors of the pleas not in excess of 12 in counties having a population of more than 300,000; 6 in counties having a population in excess of 160,000 and not more than 300,000; and 2 in other counties. When the Civil Service Act was repealed in 1986, the newly-enacted Civil Service Act, at Title 11A, New Jersey Statutes, did not make any provision for the continuation of this title. Thereafter, in recognition of the sensitive nature of the Prosecutor s Office and the longstanding use of Prosecutor s Agents, the Merit System Board provided for the continued use of this unclassified title in Prosecutor s Offices pursuant to N.J.S.A. 11A:3-4(l), which provides for allocation of titles to the unclassified service as determined by the Board, with the proviso that their numbers remain at the levels established by the above-cited repealed provision. I/M/O County Prosecutor s Agents, supra. Thus, pursuant to this decision, Respondent would be limited to six Prosecutor s Agents. 1 Further, by way of clarifying the exact entitlement of each county, the decision required those counties that had exceeded the permissible number of Prosecutor s Agents to reduce their number through attrition. Lastly, the Department of Personnel had to ensure that counties did not exceed the permitted numbers and that excess appointments be disapproved. The present record reflects that Respondent currently employs eight Prosecutor s Agents and has received approval from the county assignment judge for the hiring of four additional Prosecutor s Agents. Specifically, on September 4, 2002, Respondent obtained a Resolution from the Gloucester County Board of Chosen Freeholders approving expenditures for increasing the staff of Prosecutor s Agents from eight to 1 According to the United States Census Bureau, the population of Gloucester County in the last census (2000) was 254,673.
twelve Prosecutor s Agents. Thereafter, on September 19, 2002, the Honorable George H. Stanger, Jr., Assignment Judge of the Superior Court of New Jersey, Gloucester County, entered an order increasing the staffing levels for the Prosecutor s Agents from eight to twelve in order to allow [Respondent] to meet the imperative duties of his office pursuant to N.J.S.A. 2A:158-5 and N.J.S.A. 2A:158-7. In support of its request that these appointments be disapproved, Petitioner raises a variety of legal and equitable arguments. Thus, he argues that Respondent s actions are in clear violation of the Merit System Board decision issued in 1989. In this regard, Petitioner contends that neither the Gloucester County Board of Chosen Freeholders nor the Assignment Judge possessed the legal authority to grant a deviation from the Merit System Board s decision. In particular, Petitioner maintains that there are no statutes granting the Freeholders and the Assignment Judge such authority. In this connection, Petitioner notes that Respondent s reliance on the two statutes, i.e., N.J.S.A. 2A:158-5 and N.J.S.A. 2A:158-7, is misplaced since neither statute grants an Assignment Judge the authority to supersede the Merit System Board s decision regarding Prosecutor s Agents. In Petitioner s view, Respondent s attempt to employ so many Prosecutor s Agents is a blatant violation of the Merit System Board s decision and it tends to undermine the merit system by improperly removing positions from the career service. Petitioner also questions Respondent s reliance on Application of Bigley, 55 N.J. 53 (1969) and Rolleri v. Lordi, 146 N.J. Super. 297 (App. Div. 1977). Petitioner acknowledges that these decisions established an Assignment Judge s authority to approve a county prosecutor s hiring of assistant prosecutors, county investigators, and county detectives beyond the limits set by statute but questions the legal validity, pursuant to N.J.S.A. 2A:158-7, of granting an Assignment Judge and a prosecutor the power to abrogate legislative limits on the number of detectives and investigators that may be hired. Citing Cetrulo v. Byrne, 31 N.J. 320 (1960), Petitioner indicates that the New Jersey Supreme Court has recognized that county prosecutors must observe the statutory limits for the hiring and appointment of detectives and investigators. Lastly, Petitioner notes that even if the validity of this procedure were not in question, there is still no logical basis for extending N.J.S.A. 2A:158-7 to the hiring of Prosecutor s Agents beyond the prescribed statutory limits. In short, Petitioner concludes that the Department of Personnel is not bound by the Assignment Judge s order. Rather, the Department of Personnel is obligated to enforce the Merit System Board s decision limiting the number of Prosecutor s Agents and must direct that all excess appointments be disapproved. In response to Petitioner s arguments, Respondent, represented by Susan M. Leming, Esq., argues that New Jersey case law clearly establishes that pursuant to N.J.S.A. 2A:158-7 and N.J.S.A. 2A:157-19, a county prosecutor may, with the authorization of an Assignment Judge, employ personnel in the county prosecutor s office in excess of the prescribed statutory limits. In support of this proposition, it relies on Application of Bigley and Rolleri, supra. Bigley, Respondent notes, held that the Assignment Judge has the final and conclusive authority to approve the expenditures of
the county prosecutor beyond the budget appropriations. Respondent further notes that Rolleri recognized that it was appropriate for a county prosecutor to apply to the Assignment Judge to obtain authorization to appoint detectives and investigators in excess of the statutory limits. Respondent also underscores that Rolleri clearly established that although the Legislature fixed the maximum number of county detectives and county investigators, according to the class of the county, those limits are nevertheless not immutable since due consideration has to be given, as provided by N.J.S.A. 2A:157-19, to the power of the prosecutor to incur expenses in the performance of his duties. In this connection, Respondent has generally set forth the areas where the four additional Prosecutor s Agents will be assigned based on the prosecutor s expressed needs. They are: (1) a Director of Community Relations who will work with local law enforcement agencies, code officials, elected officials, school officials, and community residents in the identification and formation of long term solutions in high crime areas; (2) an additional staff member assigned to the Victim/Witness Unit in order to offset other transfers in the Prosecutor s Office; (3) a media relations representative who will to respond to the media as well as the public s requests for information, and who will compile information for reporting requirements to the Attorney General; and (4) a Prosecutor s Agent who will assume responsibility for inventorying evidence for all the criminal matters prosecuted in Superior Court. Respondent further contends that Petitioner s reliance on Cetrulo, supra, is clearly misplaced since that decision did not hold that county prosecutors must observe the statutory maximums for detectives and investigators. Rather, Respondent points out that the New Jersey Supreme Court observed, only in dicta, that if the prosecutor needs additional personnel, he appoints them with the limitations prescribed by law and the judicial decisions. Respondent further argues that Petitioner s contention that an Assignment Judge does not have the legal authority to approve appointments is unfounded. Relying on Bigley, Rolleri, and Tate v. Amato, 220 N.J. Super. 235 (App. Div. 1987), Respondent contends that an Assignment Judge acts as a legislative agent, and not in his judicial capacity, when he authorizes the appointment of personnel at levels higher than what statutory limits prescribe. Lastly, Respondent observes that Bigley allowed the appointment of additional non-law enforcement personnel beyond the statutory limits, i.e., five additional clerk stenographers. Accordingly, Respondent s contention that there is no judicial precedent for extending the holding in Rolleri to Prosecutor s Agents, since that case dealt only with detectives and investigators, is incorrect and must be rejected. In summary, Respondent argues that there is no logical basis for concluding that the rationale in Bigley and Rolleri does not extend to the appointment of Prosecutor s Agents. CONCLUSION
The critical inquiry that must be addressed here is whether a county prosecutor may, pursuant to the order of an assignment judge, appoint Prosecutor s Agents beyond the limits set by the Merit System Board in In the Matter of County Prosecutor s Agents, supra, considering that court decisions have permitted county prosecutors to appoint assistant prosecutors, county investigators, and county detectives beyond the statutory maximums prescribed for these titles. 2 Moreover, an equally important consideration is whether the hiring of additional Prosecutor s Agents, a title that is in the unclassified civil service, may have an impact on career service employees. Initially, it should be noted that this appears to be a question of first impression. Additionally, the present record contains only a general description of the duties to be performed by the additional Prosecutor s Agents. 3 However, after careful review and consideration of the pertinent case law, statutes and public policy, there appears to be no reason why a county prosecutor cannot, consistent with an assignment judge s authorization, conditionally appoint Prosecutor s Agents in excess of the limits imposed by the Department of Personnel. These excess appointments, however, must be subject to the Department of Personnel s review of the duties and tasks that will be performed by these additional Prosecutor s Agents to ascertain whether their tasks should be allocated to career service titles. In examining the present controversy, it will be helpful to first look at the nature of the county prosecutor s office in New Jersey. The county prosecutor is a constitutional officer, nominated and appointed by the Governor with the advice and consent of the Senate. See, N.J. Const., Art. 7, sec. 2, par. 1. County prosecutors serve in their individual jurisdictions as the foremost representatives of the executive branch of government in the enforcement of the criminal law. In this capacity, our Legislature has entrusted county prosecutors with the power to use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws of the State. Moreover, county prosecutors are granted, by statute, within their jurisdictions, the same powers as the Attorney General of the State. See, N.J.S.A. 2A:158-5. As a corollary to the powers and responsibilities vested on our county prosecutors, it is axiomatic that they must have the ability to incur all necessary expenses in the lawful performance of their functions. The Supreme Court of New Jersey, in State v. Winne, 12 N.J. 152 (1953), noted the prosecutor s dominant position and primary responsibility for the enforcement of the criminal laws in his county and his implied 2 N.J.S.A. 2A:158-15 fixes the number of assistant prosecutors that may be appointed by county prosecutors on the basis of the class assigned to the respective counties. The County Detectives and County Investigators Act, at N.J.S.A. 2A:157-1 et seq., prescribes the limits on the number of county detectives and county investigators that may be hired on the basis of the same criteria. It should be noted that county detectives and county investigators have been allocated to the classified (now career service) and unclassified service, respectively, pursuant to N.J.S.A. 2A:157-2 and N.J.S.A. 2A:157-10. 3 In connection with this matter and by way of providing an example of how Prosecutor s Agents have been used in county prosecutor s offices, it is noted that in State of New Jersey v. Schultz, 176 N.J. Super. 65 (App. Div. 1980), a Prosecutor s Agent was assigned the task by the Passaic County Prosecutor s Office of obtaining an electronic recording of telephone conversations between a defendant and a third party who had consented to the recording.
powers to appoint additional personnel when needed for the proper discharge of his duties. The Legislature recognized this principle and provided a remedy for the prosecutor to have those expenses paid when it enacted N.J.S.A. 2A:158-7, stating that: All necessary expenses incurred by the prosecutor for each county in the detection, arrest, indictment and conviction of offenders against the laws shall, upon being certified to by the prosecutor and approved, under his hand, by a judge of the superior court, be paid by the county treasurer whenever the same shall be approved by the board of chosen freeholders of such county. The amount or amounts to be expended shall not exceed the amount fixed by the board of chosen freeholders in its regular or emergency appropriation, unless such expenditure is specifically authorized by order of the assignment judge of the superior court for such county (Emphasis added). In Application of Bigley, supra, the New Jersey Supreme Court held that, pursuant to N.J.S.A. 2A:157-19, a county prosecutor has the power to incur expenses in the detection, arrest, indictment and conviction of offenders and he is therefore entitled, with the approval of the assignment judge, to hire five additional assistant prosecutors, six additional county investigators (beyond their statutory limits), and five additional stenographers. Rolleri, supra, following the precedent established in Bigley, noted that although the Legislature has fixed the maximum number of county detectives and county investigators that may be hired by a county prosecutor, according to the class of the county, those limits are not immutable and the prosecutor may have recourse to the courts. The Appellate Division in Tate, supra, cited by Respondent, reaffirmed the validity and necessity of the Bigley application whenever a county prosecutor needs to incur expenses in the performance of his duties that are in excess of the board of freeholders appropriations. It should be noted that the constitutionality of the section authorizing an assignment judge to approve the expenditures of a county prosecutor beyond the appropriations made by the county freeholders was upheld by the New Jersey Supreme Court in Application of Schragger, 58 N.J. 274 (1971). Specifically, Schragger held that the remedy provided by this section is neither an unconstitutional delegation of legislative power to a court nor is it vague for failing to set forth a standard for the exercise of the delegated power. Furthermore, Schragger left no doubt that the phrase necessary expenses contemplates such expenses as the hiring of additional personnel and the consequent payment of salaries not provided for by the board of freeholders in its regular or emergency appropriations. Thus, Petitioner s contention that the validity of the procedure used in hiring additional Prosecutor s Agents is questionable is without merit and must be rejected. By the same token, the Board cannot perceive any reason why, given the undisputed validity of the Bigley remedy, Respondent cannot avail himself of the opportunity to appoint Prosecutor s Agents beyond the numbers set forth by the Merit System Board in 1989 if the prosecutor has established a bona fide need for increased staffing and has received judicial approval. The Merit System Board decision
in question certainly does not foreclose the possibility that, as a result of increased demands on county prosecutors, there may be a need to increase the number of Prosecutor s Agents. In this regard, it should be noted that the repealed provision, N.J.S.A. 11:4-4(s), was enacted prior to the adoption of the 1947 Constitution, since it utilizes the term prosecutors of the pleas, a term which was changed to county prosecutors with the adoption of the 1947 Constitution. See, Cetrulo, supra. Accordingly, the numerical limits in Title 11 and carried forward in the 1989 Board decision are, in all likelihood, out of date in view of population changes and correspondingly increased demands on law enforcement agencies. However, another consideration of equal importance still remains to be resolved. It is not sufficiently clear from the present record whether the duties that the Prosecutor s Agents will be performing impinge upon career service titles. Respondent, in its submission, has presented a general outline of the areas in which the new hires will be working. It could very well be that the newly hired Prosecutor s Agents will be performing functions of a confidential nature for the prosecutor, consistent with titles that are allocated to the unclassified service. 4 On the other hand, there is a title of Advocate, Victim/Witness Program which is utilized in the Prosecutor s Office and is allocated to the career service. However, the Board has no way, based on the present record, of determining the exact nature of their duties. Viewed from this perspective, Petitioner has raised a serious concern about what may be inappropriate uses of a title that has historically been allocated to the unclassified service by N.J.S.A. 11A:3-4(l) and its predecessor, N.J.S.A. 11:4-4(s). Clearly, there are two competing policies here at work. The Department of Personnel s statutory obligation to provide public officials with appropriate appointment, supervisory and other personnel authority so that they may properly execute their constitutional and statutory responsibilities must be balanced against the need to obtain an efficient public service through merit appointments and tenure. See, N.J.S.A. 11A:1-2. Accordingly, although the Board sees no legal impediment to the appointment of additional Prosecutor s Agents, this finding must be tempered by the concerns raised by Respondent regarding the potential erosion of the career service. Thus, the Board will permit the hiring, on a conditional basis, of additional Prosecutor s Agents beyond the limits set forth in I/M/O County Prosecutor s Agents, supra. However, the Board directs the Department of Personnel s Division of Human Resource Management to undertake a review of the duties to be performed by the four Prosecutor s Agents hired pursuant to the Assignment Judge s order and the two hired in excess of the six allowed by the 1989 Board decision. 4 It should be noted that the unclassified title of Prosecutor s Agent does not have an official Department of Personnel job specification delineating its specific duties (other unclassified titles, like Legal Specialist, do). Nevertheless, the issue raised by Petitioner focuses on whether the Prosecutor s Agent title is being utilized to perform duties that should be performed by career service titles. Thus, although it may be beneficial in the future to have, as a guidepost, a job specification for this title, it is not essential to address and resolve the present inquiry.
In addition, a review of Department of Personnel records reflects that in addition to the Gloucester County Prosecutor s Office, the following County Prosecutor s Offices have exceeded the numerical limits established by the 1989 Board decision based on the populations of the respective counties as of the 2000 United States Census: Atlantic County, Camden County, Morris County and Warren County Prosecutor s Offices. Thus, with a population of 252,552, Atlantic County may only appoint six Prosecutor s Agents and they presently have 12 Prosecutor s Agents. Morris and Warren Counties have populations of 470,212 and 102,437, respectively, and each has appointed 15 and three Prosecutor s Agents within their respective jurisdictions, when their numbers should be limited to 12 and two. Camden County, which has a population of 508,932, has 28 Prosecutor s Agents employed in its Prosecutor s Office. Camden County is only permitted a maximum of 12 Prosecutor s Agents and therefore has an excess of 16 employees holding this title. Based on the foregoing considerations, the Board finds it advisable for the Department of Personnel to undertake a review of the current regulations with a view towards proposing and adopting a rule that will prescribe numerical limits on the hiring of Prosecutor s Agents consistent with population changes and increased demands on law enforcement agencies. ORDER Therefore, it is ordered that Petitioner s request be denied in part and that the appointments of the six Prosecutor s Agents hired in excess of the limits set forth by In the Matter of Prosecutor s Agents (Merit System Board, decided May 23, 1989) be made conditional pending a review of their duties by the Division of Human Resource Management. It is further ordered that the Division of Human Resource Management undertake the review of the affected Prosecutor s Agents presently working in the Gloucester County Prosecutor s Office as soon as practicable. In addition, it is ordered that the Division of Human Resource Management undertake a review of the duties being performed by all of the Prosecutor s Agents in the above-noted counties who have been hired in excess of the limitations prescribed by the Board s 1989 decision. Finally, it is ordered that the Department of Personnel undertake a review of its current regulations with a view towards proposing and adopting a rule that will prescribe numerical limits on the hiring of Prosecutor s Agents consistent with population changes and increased demands on law enforcement agencies. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.