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McCartney v. Franco

Decided: March 2, 1964.


Glickenhaus, J.c.c. (temporarily assigned).


The present proceeding was initiated by complaint in lieu of prerogative writs.

On January 25, 1963 plaintiff was appointed to the board of tax assessors of the defendant City of Orange for a four-year term after July 1 next. At the time of plaintiff's appointment, Orange had a commission form of government, and plaintiff was duly appointed by the commissioner of revenue and finance. Plaintiff assumed office on February 1, 1963.

On June 19, 1962 the voters of Orange changed the form of the municipal government to Mayor-Council Plan C, pursuant to the Faulkner Act, the change to be effective on July 1, 1963.

Defendant Nicholas H. Franco was elected mayor on June 18, 1963, and assumed office on July 1, 1963. On July 1, Franco, by letter sent by registered mail, terminated the services of plaintiff. Also on that date, the city council passed a resolution to provide for the temporary organization of the city government pending the preparation of an Administrative Code. Section 7, entitled "Statutory Boards and Commissions," provided:

"All statutory boards and commissions heretofore established and existing within the city on June 30, 1963 are hereby continued and the members thereof shall be appointed as required by the charter; except that the board of assessors shall not be deemed a statutory Board continued by this section." (Emphasis added)

This section was incorporated verbatim on July 30, 1963, in a duly enacted ordinance entitled, "An Ordinance To Provide For The Temporary Organization Of The City Government Pending The Preparation Of An Administrative Code." Thereafter, on October 2, 1963, "An Ordinance To Adopt An Administrative Code Of The City Of Orange Under Mayor-Council Plan C" was approved. Section 5.3 thereof is entitled "Division of Assessments" and provides that within the Department of Finance there shall be a Division of Assessments, the head of which shall be the city assessor.

Plaintiff seeks judgment adjudicating that his dismissal from his office was illegal; that rescission of the letter of termination should be granted; that the abolition of the board of assessors was illegal; that plaintiff was duly appointed as a member of the board of assessors of defendant city for a term ending on July 1, 1967, and is entitled to be reinstated and continued in such office for the duration of the term.

N.J.S.A. 40:69A-207 provides that upon the change of the form of a municipal government under the Faulkner Act, all offices then existing in the municipality are abolished and the terms of all elected and appointed officers are terminated. The reason for these two objectives is so that a "clean slate" of elected and appointed personnel could be created by the first governing body elected under the Faulkner Act. Broadway National Bank of Bayonne v. Parking Authority of Bayonne , 40 N.J. 227, 235 (1963); Loboda v. Clark Tp. , 40 N.J. 424, 429 (1963); Myers v. Cedar Grove Tp. , 36 N.J. 51, 56 (1961).

However, N.J.S.A. 40:69A-207 excludes from the above provisions certain classes of offices:

"* * * nothing in this section shall be construed to abolish the office or terminate the term of office of * * * any official or

employee now protected by any tenure of office law * * *. If the municipality is operating under the provisions of Title 11 of the Revised Statutes (Civil Service) at the time of the adoption of an optional plan under this act, nothing herein contained shall affect the tenure of office of any person holding any position or office coming within the provisions of said Title 11 as it applies to said officers and employees. * * *"

It is contended by plaintiff that he is a member of the unclassified Civil Service by the terms and provisions of N.J.S.A. 11:22-2, Civil Service Rule 7(2)(t) and N.J.S.A. 40:46-6.2, and is therefore protected from the termination of his term and the abolition of his office by R.S. 11:28-2. Conversely, defendant contends that the board of assessors was duly abolished on July 1, 1963, under authority of N.J.S.A. 40:69A-29(a), which reads:

"Each municipality governed by an optional form of government pursuant to this act shall, subject to the provisions of this act or other general laws, have full power to:

(a) organize and regulate its internal affairs, and to establish, alter, and abolish offices, positions and employments and to define the functions, powers and duties thereof and fix their term, tenure and compensation; * * *."

N.J.S.A. 11:22-2(o), provides that the unclassified service shall include "Such other officers and positions not now included in the unclassified service by this section or by any other statute, as the Civil Service Commission shall, from time to time, ...

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