NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0005-04T20005-04T2

___________________________________

IN THE MATTER OF PROSECUTOR'S

AGENTS, GLOUCESTER COUNTY

PROSECUTOR'S OFFICE

___________________________________

Submitted September 21, 2005 - Decided

Before Judges Wefing and Wecker.

On appeal from the Merit System Board,

Department of Personnel.

Brown & Connery, attorneys for appellant

Gloucester County Prosecutor's Office

(William M. Tambussi, on the brief).

Weissman & Mintz, attorneys for respondent

Communication Workers of America, Local

1085 (Rosemarie Cipparulo, on the brief).

Peter C. Harvey, Attorney General, attorney

for respondent Merit System Board (Pamela

N. Ullman, Deputy Attorney General, on the

statement in lieu of brief).

PER CURIAM

The Gloucester County Prosecutor's Office filed a Notice of Appeal from an order of the Merit System Board issued July 16, 2004. Because we conclude that the Board's decision is not final, we dismiss the appeal as premature. We add only these brief comments.

On September 4, 2002, the Gloucester County Board of Chosen Freeholders enacted a Resolution approving a requested expenditure to allow the Gloucester County Prosecutor's Office to increase its unclassified staff from eight Prosecutor's Agents to twelve. Judge Stanger entered an order in the Law Division on September 9, 2002 authorizing this increase in the "staffing limit" as "necessary for the Gloucester County Prosecutor 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."

By letter to the Merit System Board dated July 25, 2003, the President of Communications Workers of America, Local 1085, raised an objection to the increased number of appointments to the position of Prosecutor's Agent in Gloucester County on the ground that "neither the Freeholder Board nor the Assignment Judge possesses the authority to authorize a deviation from the Merit System Board's order in this matter." The Union requested that the Merit System Board disapprove all appointments to the position of Prosecutor's Agent in Gloucester County in excess of six, which it alleged was the limit set by the Board in In the Matter of County Prosecutor's Agents, a "Final Administrative Action" issued by the Merit System Board on May 16, 1989.

On July 16, 2004, the Merit System Board issued a written "Final Administrative Action," in which it recognized that "the numerical limits . . . 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." The Board also noted that "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." The Board's "Action" concluded:

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. [10a]

The above-quoted order merely permits the additional appointments to the position of Prosecutor's Agent to continue in "conditional" status "pending a review of their duties" and requires the Division of Human Resource Management to undertake such a review. The review is ordered not only with respect to the Gloucester County Prosecutor's Office, but also the Atlantic, Camden, Morris, and Warren County Prosecutors' offices, where the Board notes that appointments to the position of Prosecutor's Agent also have been made in excess of the number authorized in 1989.

The Board's "order" of July 16, 2004 is not a final order from which an appeal is permitted as a matter of right. See R. 2:2-3(a)(2). Until the Division completes the ordered review and the Board takes action thereon, there is no final administrative decision, irrespective of the title "Final Administrative Action."

Appeal dismissed.

(continued)

(continued)

4

A-0005-04T2

October 6, 2005