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McEvoy v. Mayor and Council of Borough of Cliffside Park

Decided: April 13, 1964.

JOHN J. MCEVOY, PLAINTIFF,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF CLIFFSIDE PARK, AND LOUIS S. KORB, BOROUGH AUDITOR OF THE BOROUGH OF CLIFFSIDE PARK, DEFENDANTS; JOHN GERRITY, FRANK LINARDI, EDWARD FLIPOWICZ, LOUIS ALFANO AND JOSEPH CICCONE, INTERVENERS



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

Schneider

[83 NJSuper Page 269] Plaintiff was the Chief of Police of Cliffside Park, Bergen County, New Jersey. The facts are set forth in McEvoy v. Mayor and Council of Cliffside Park , 78 N.J. Super. 534 (App. Div. 1963), affirmed 40 N.J. 600 (1963). The Appellate Division reversed a ruling of the trial judge which set aside a resolution retiring the chief of police and the matter is closed as to this phase of the case.

The original resolution retiring the chief of police granted accumulated sick leave of $6,461.20 to be paid weekly until said amount was exhausted. As set forth in the Appellate Court opinion, the sick leave benefits were paid for 11 weeks and then discontinued. The council refused to continue sick leave payments on the ground that part of the resolution which authorized them was illegal. In his complaint plaintiff sought reinstatement to his position or, in the alternative, payment of the sick leave benefits granted to him by the resolution of December 3, 1961.

The interveners were other policemen whose rights were affected. They are not necessary to this part of the case.

The decision of the Appellate Division, sustained by the Supreme Court, discussed only the question of the right of plaintiff to stay in office. The matter of sick leave was remanded to the trial court to adjudicate plaintiff's alternative demand for payment of sick leave benefits. Motion was made for summary judgment, and there being no dispute as to the facts, final decision was referred to this court.

Cliffside Park has never adopted the provisions of Civil Service and we must look entirely to the borough for our situation. The resolution of December 3, 1961 states in part:

"Whereas the borough of Cliffside Park desires to grant to the said John J. McEvoy an accumulated sick leave amounting to $6,461.20, which the borough of Cliffside Park recognizes as the vested right of said John J. McEvoy to accumulated sick leave, to be paid weekly until said amount is exhausted.

Now, therefore, be it resolved by the Mayor and Council of the Borough of Cliffside Park as follows:

2. That the Mayor and Council grant to the said John J. McEvoy, an accumulated sick leave amounting to $6,461.20, which the Borough of Cliffside Park recognizes as the vested right of the said John J. McEvoy to accumulated sick leave, to be paid weekly until the said amount is exhausted.

3. That the Mayor, Borough Clerk, Tax Collector and other necessary officials of the Borough of Cliffside Park, be and they are hereby authorized, empowered and directed to execute any and all documents necessary to effectuate the aforesaid accumulated sick leave payment."

The only ordinance of the municipality is chapter 15, section 13 (as set forth in agreed stipulation of facts), which provides:

"Except with the written approval of the Chairman of the Public Safety Committee of the Mayor and Council, not more than 14 days leave of absence with full pay shall be granted any officer or member of the police department on account of sickness or for any other cause in any calendar year. The Mayor and Council shall have the power ...


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