Cooper v. Imbriani

Per Curiam.

Each of the plaintiffs is a veteran and was appointed a county detective without a fixed term. Consequently, each is entitled to the protection afforded by the Veterans’ Tenure Act against discharge, “except for good cause shown after a fair and impartial hearing,” N. J. 8. A. 38:16-1 et seq., absent clear legislative intent to exclude such position from protection under the act. Brennan v. Byrne, 31 N. J. 333 (1960); Perrella v. Board of Education, Jersey City, 51 N. J. 323 (1968).

All indications here point to an intent to confer tenure protection. By the terms of N. J. 8. A. 2A :157-2 it is provided that “county detectives . . . shall be in the classified service” — a plain mandate that, in counties adopting civil service, county detectives were to have tenure. In contrast, section 10 of the same act (N. J. 8. A. 2A:157 — 10) stipulates that the “position of county investigator * * * shall be in the unclassified service,” and that all such investigators shall “serve at [the] pleasure [of] and subject to removal by” the prosecutor. Indeed, it was this very language and the juxtaposition of it in the two sections of the same act upon which the court relied in its determination that the Legislature intended to exclude county investigators from the protection of the Veterans’ Tenure Act in Brennan v. Byrne, 31 N. J. 333, 336 (1960). Cf. Bergen County v. Dept,. of Civil Service of N. J., 115 N. J. Super. 90 (App. Div. 1971).

Accordingly, the judgment of the Law Division setting aside the summary dismissal of the plaintiffs is affirmed — ■ without prejudice, however, to the right of the Prosecutor of Somerset County to initiate and to prosecute to a conclusion appropriate disciplinary proceedings against each of the plaintiffs for discharge or lesser penalties, for cause arising prior to the dismissal of each by defendant Imbriani in 1971. In the event that such disciplinary proceedings are commenced against either or both of the plaintiffs within 30 days after the filing date of this opinion, the affected plaintiff or plaintiffs shall not be reinstated or be paid back pay pending ultimate disposition of said disciplinary proceedings; otherwise, plaintiffs shall be unconditionally restored to the respective positions held by each of them at the time of their discharge by defendant Imbriani, and each shall bo paid his back pay for the period between his discharge and reinstatement, less appropriate mitigation, plus interest.