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"
How later courts described this case
- 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"
- stating that “[w]here one branch of government has been specifically vested with the authority to act in a prescribed manner, neither of the other branches may usurp that authority”
- holding that tenure is not an emolument of a de facto office holder, and moreover, the statutory preconditions for tenure were not met
- finding tax assessor appointed by mayor without advice and consent of city council nevertheless was a de facto officer whose acts were binding on the city and third parties
Written by the judges who cited it.
The opinion
O’HERN, J.,
concurring.
I concur in the opinion and judgment of the Court, except insofar as the opinion suggests that the initial appointment could not have been ratified. The trial court determined that the Jersey City Council impliedly ratified Casamasino’s 1987 appointment by its silence because “plaintiff occupied his office in an open and notorious manner,” and “one could not conclude otherwise but that the Council had full knowledge of the fact that plaintiff was functioning in every respect as the tax assessor.”
There is decisional support for the theory that the conduct of the township managers constituted an approbation of [Casamasino’s] status as tax assessor so as to validate his appointment. See Barkus v. Sadloch, 20 N.J. 551 , 120 A.2d 465 (1956), where [the] Court held that the inappropriate appointment of a city employee was subsequently validated by council’s acts in approving payrolls upon which the employee’s name appeared. In this vein, see also Cetrulo v. Byrne, 31 N.J. 320, 330 , 157 A.2d 297 (1960), and Kovalycsik v. Garfield, 58 N.J.Super. 229 , 239, 156 A.2d 31 (App.Div.1959).
[Ream v. Kuhlman, 112 N.J.Super. 175, 193 , 270 A.2d 712 (App.Div.1970).]
However, I do not believe that tenure as tax assessor may be acquired as a holdover. There having been no reappointment by the new mayor when Casamasino’s original term expired in 1991, the qualifications for achieving tenure under N.J.S.A. 54:1-35.31 were not met.