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Flagg v. Essex County Prosecutor

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Argued November 5, 2001

This appeal involves a municipal worker whose job was forfeited based on illegal disposition of solid waste, a disorderly persons offense under the Solid Waste Management Act (Act), N.J.S.A. 13:1E-9.4. We are called on to establish the appropriate standard for determining whether the Attorney General or a county prosecutor has properly declined to seek a waiver of forfeiture of public employment pursuant to N.J.S.A. 2C:51-2 based on a conviction for a disorderly or petty disorderly persons offense. The trial court applied a “heightened standard of review” and held that the prosecutor’s decision not to seek a waiver pursuant to N.J.S.A. 2C:51-2e was an “extraordinary abuse of discretion.” The Appellate Division reversed, holding that the “patent and gross abuse of discretion” standard used for pretrial intervention matters should be applied and that that standard was not satisfied in this case. We hold that because the decision whether or not to seek a waiver does not involve law enforcement policy issues, that heightened standard is not required. Rather, the appropriate standard is simply abuse of discretion applied pursuant to written guidelines to assist in decision-making.

I.

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