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2 N.J.A.R. 398

Yarson, Thomas v. Mercer, County of
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Citation: 2 N.J.A.R. 398
Decision Date: 1980
Synopsis: Yarson, an officer in the Mercer County Sheriff's Department, was suspended from that position on the ground that he had violated Supreme Court Rule 1:17-1 by engaging in political activity while assigned to court duties. A hearing was requested and the matter, with all facts stipulated, was heard before an administrative law judge. In 1976, after certification by the Civil Service Commission, Yarson was appointed to the position of sheriff's officer and permanently assigned to duty with the courts in 1978. Yarson had been politically active for several years and had formed a preliminary intent to seek the office of county sheriff in the general election of November 1979. After an inquiry by the county sheriff, the local assignment judge indicated that on the basis of R. 1:17-1 if Yarson was assigned to a judge or court he could not seek elective office without the specific approval of the Supreme Court. (Prior to this, Yarson had filed a complaint in lieu of prerogative writ with the Law Division alleging that his regular assignment to the courts was inconsistent with the title of sheriff's officer and requested an order compelling the county to transfer him to an appropriate position). On April 26, 1979 Yarson filed a nominating petition for county sheriff with the county clerk. On the next day, Yarson requested that the Superior Court enjoin the county from instituting any disciplinary proceedings against him for filing as a candidate pending a final hearing before the court; that motion was denied. On that same day, the county sheriff notified Yarson that he was being removed from his duties for the period of his candidacy. The county informed the Department of Civil Service of this action on May 8, 1979. On May 9, 1979 Yarson sought relief through the Administrative Office of the Courts pursuant to R. 1:17-1 and two days later in acknowledging the request, the AOC stated 'the Civil Service matter is not encompassed by your letter application under R. 1:17-1 .' State of New Jersey 399 In response to the county's notice, the Department of Civil Service informed the county that in its view the matter was governed by Civil Service procedures and that Yarson was entitled to a hearing. The county maintained that Yarson was suspended pursuant to the court rule and the matter was outside the jurisdiction of Civil Service. On May 31, 1979 the New Jersey Supreme Court denied Yarson's request for a rule exemption and on June 27, 1979 Yarson's complaint in lieu of prerogative writ was dismissed for failure to exhaust administrative remedies. The administrative law judge determined that three issues were to be resolved: (1) whether the Civil Service Commission had jurisdiction over the matter; (2) whether Yarson's appeal to the Commission was timely within N.J.A.C. 4:15.3 and (3) had Yarson been assigned to work out of title. As to the first issue, the administrative law judge observed that in dealing with this matter, the courts had raised no objections to a resolution of Yarson's appeal by the Commission and thus either as a matter of right, or of comity, the Commission should properly exercise jurisdiction over the matter. The administrative law judge found that Yarson's appeal was timely since it was filed within 20 days of the day that Yarson became aware that Civil Service procedure was applicable. Since Yarson filed his appeal on June 5, 1979, he was within the time limit of N.J.A.C. 4:1-5.3. As to the issue of working out of title, the judge observed that in Clark v. Department of Civil Service, (N.J. App. Div., 1977, A-2322-75) (unreported) the Appellate Division had questioned the wisdom of mixing the duties of court attendant and sheriff's officer. As a result of the Clark decision, Civil Service revised the duties of sheriff's officer stating 'the sheriff's officer's series shall not encompass the duties involved in attending the courts.' Accordingly, the judge found that Yarson's permanent assignment to the courts was improper and that no suspension would have been necessary had Yarson been assigned duties consistent with his job title. The administrative law judge ordered that Yarson be awarded his salary and benefits for the period of suspension. Michael R. Canfield, Esq., for Appellant (Fless, Hunter & Canfield, Attorneys) Paul D. McLemore, Assistant County Counsel for Respondent (Paul T. Keonig, Mercer County Counsel, Attorney)
Rule(s) Cited: 4:1-5.3