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When the Civil Service Act was repealed in 1986, the newly-enacted Civil Service Act, at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:34(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above-cited repealed provision.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.