unconstitutional as applied to a county sheriff. In re
Burlington County Bd. of Chosen Freeholders, 99 N.J. 90,
100-01 (1985); State v. Musto, 187 N.J.Super. at 291-92;
accord State v. Pitman, 201 N.J.Super. at 23.
F. Matters Directly Related to the Conduct of Office
The phrase “matters directly related to the conduct of
... office” in N.J.S.A. 2A:81-17.2a(1) should be broadly
construed consonant with the statutes purpose. See Hyland
v. Ranone, supra. In State v. Bielecki, 196 N.J.Super. 332,
337-38 (App. Div. 1984), certif. denied, 99 N.J. 216
(1984), the court held that defendant admitted the
commission of a crime -- namely false swearing,“relating to
his employment or touching the administration of his
office.” The state grand jury before which defendant
admitted that he lied was investigating charges that police
officers in the police department of which defendant was
the chief were improperly misappropriating property.
Since defendant’s false swearing impeded this investiga-
tion, it related to his employment, touched the
administration of his office, and compelled his removal
from office.
G. Prosecutor’s Discretion to Seek Removal
N.J.S.A. 2A:81-17.2a(4) provides that the county
prosecutor or the Attorney General may institute removal
proceedings by an action in lieu of prerogative writ. In
State v. Bielecki, 196 N.J.Super. at 337, the court held that
the prosecutor has discretion as to whether he or she should
institute removal proceedings. That discretion is similar to
the discretion prosecutors have as to whether they should
institute criminal proceedings. In a given case where
evidence exists that would support both removal and
criminal charges, the prosecutor does not commit an abuse
of discretion simply by deciding to seek removal and to
forego criminal charges.
H. Conflict With Other Statutory Provisions and
Ordinances
In State v. Bielecki, 196 N.J.Super. at 336, the court,
relying in part on N.J.S.A. 2A:81-17.2a(5), held that the
removal provisions of N.J.S.A. 2C:51-2 and thus of
N.J.S.A. 2A:81-17.2a(1) et seq. are not mutually exclusive,
and that in an appropriate case the prosecutor may rely
upon either or both.
The Legislature has preempted matters relating to the
removal of elected officials. Thus, municipalities are
denied authority to enact ordinances pertaining to this
subject. Traino v. McCoy, 187 N.J.Super. 638, 646-48
(Law Div. 1982).
I. Application of These Statutes to Administrative
Proceedings
The immunity N.J.S.A. 2A:81-17.2a(2) affords
manifestly applies only to an ongoing proceeding before a
court, grand jury, or the State Commission of
Investigation. It does not apply to an administrative
hearing, such as a State Police disciplinary proceeding. In
re Toth, 175 N.J.Super. 254, 261-62 (App. Div. 1980).
J. Applicability of Criminal Defenses
In State v. Bielecki, 196 N.J.Super. at 334-37,
defendant chief of police gave testimony before the state
grand jury. Approximately two months later, he returned
to the grand jury and admitted that he had committed false
swearing during his earlier testimony. He provided new
retraction testimony that differed from his earlier
testimony. The Attorney General then sought his removal
from office under N.J.S.A. 2A:81-17.2a3, and relied upon
defendant’s admission that he had committed false
swearing. The Law Division disagreed and ordered his
removal. On appeal the Appellate Division characterized
retraction as a “nonexculpatory, public policy defense” and
held that, although retraction may be a defense to criminal
charges, it has no relevance to N.J.S.A. 2A:81-17.2a(3)
removal proceedings. See State in re J.S., 273 N.J.Super.
450, 456 (Ch. Div. 1994).
IV. CIVIL SERVICE
The Civil Service Commission, in appeals de novo
from decisions of state and local appointing authorities in
disciplinary proceedings against employees, is not
restricted to an “abuse of discretion” test, even if the
authority is a law enforcement agency. Nevertheless, in
Henry v. Rahway State Prison, 81 N.J. 571, 578-80 (1980),
the Commission acted arbitrary, capriciously, and
unreasonably in reducing a penalty imposed on a
corrections officer from removal to a 90 day suspension
where the officer falsified a report regarding his discovery
of marijuana within a prison.
V. MISCELLANEOUS PROVISIONS
As to the removal from office of municipal officials for
failure to comply with various provisions of the Faulkner
Act, see Traino v. McCoy, and Stern v. Hall, 183 N.J.Super
536 (Law Div. 1982). As to the removal of county officials
who fail to comply with valid residency requirements,