cdTOCtest

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,