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Ream v. Kuhlman

Decided: November 9, 1970.


Lewis, Matthews and Mintz. The opinion of the court was delivered by Lewis, P.J.A.D.


Plaintiffs, five residents and taxpayers of the Township of Evesham (township), on behalf of themselves and all other similarly situated taxpayers, appeal from that part of a judgment of the Chancery Division entered on July 9, 1970 denying their demands for a declaration that Henry W. Haines is the duly appointed tax assessor of the township for the term prescribed by N.J.S.A. 40:46-6.2.

Essentially, the background facts are uncontroverted. In November 1968 Haines was elected tax assessor of the township under the then existing township committee form of government. Thereafter, effective July 1, 1969, the electorate of the township duly adopted Council-Manager Plan B of the Optional Municipal Charter Law, L. 1950, c. 210, N.J.S.A. 40:69A-1 et seq. , commonly known as the Faulkner Act. On that date the office occupied by Haines under the pre-existing form of government was abolished

pursuant to N.J.S.A. 40:69A-207.*fn1 By resolution 12C-69 (July 1, 1969) the township council (council) availed itself of the permissive provision of section 207 empowering it to appoint interim municipal officers pending the adoption of reorganizational ordinances, and carried over all officers of the former government, including Haines as tax assessor, for the statutory 30-day transitional period. Subsequently, by resolutions 19C-69 (July 28, 1969) and 26C-69 (September 2, 1969), the terms of the officers and employees of the township were further continued for periods of 30 days and 15 days, respectively.

On October 21, 1969 the township adopted an administrative code (ordinance 20-69), which in § 1-8.3 provides that "[t]he division of Tax Assessments shall consist of a board of three members to be appointed by council and hold office for two years; the first of such appointments to be for one year and the other [ sic ] for two years. * * *" On the same day, by resolution 42C-69, council appointed Haines to the board of tax assessors for a one-year term commencing July 1, 1969. No further appointments were made until February 17, 1970, when council designated John Howarth and James Hogan as members of the board, each for a term of two years.

Haines was recognized as the tax assessor by Acting Manager Inez Bochis and by Thomas Gramigna, who was appointed township manager (manager) effective September 8, 1969. On or about October 1, 1969 Gramigna, in his official capacity as manager, signed and issued to Haines

an identification card certifying him as "Township Taxes [ sic ] Assessor." Haines was paid for performing the duties of that office, which included the preparation of a complete assessment list for 1970 and the filing of a duplicate thereof with the Burlington County Board of Taxation. This list contained increases in the assessed valuation of 608 properties which Haines found to be underassessed, amounting to about $2.7 million, or about 5% of the tax roll of the township.

Thereafter, following the receipt of 253 letters from taxpayers concerning these assessments, the Burlington County Board of Taxation, on its own initiative, conducted a hearing on February 11, 1970 at which the township appeared by its attorney to contest Haines' assessments. The testimony at the hearing indicated that the reassessed properties which had previously been on the tax rolls at an average assessment ratio of 67% had been raised to 86% of true value to conform generally with the assessments throughout the township.

On March 18, 1970 the county tax board unanimously certified Haines' tax list and assessor's duplicate. Following this action, council indicated it would challenge the validity of the assessments in an appeal to the Division of Tax Appeals. Moreover, the mayor publicly invited taxpayers to join in the appeal or to contest their assessments individually.

In April 1970 plaintiffs initiated the instant proceedings, seeking, among other things, declarations that § 1-8.3 of the 1969 code was invalid and that Haines was entitled to serve a four-year term as tax assessor, and injunctive relief restraining council from acting under the aforementioned section, restraining the township's appeal from the county board"s certification of Haines' assessments and restraining Hogan and Howarth from assuming any duties of the office of tax assessor.

On the return of an order to show cause, and on cross-motions for summary judgment, the judge of the Chancery

Division delivered an oral opinion on July 2, which is embodied in an order of July 9, 1970. He declared § 1-8.3 invalid because it contravened the provision of N.J.S.A. 40:46-6.2 requiring a four-year term for tax assessors, and held all appointments made thereunder void. Furthermore, he ruled that the township's appeal from the county board's certification was ultra vires and an unlawful expenditure of public funds. Although the court denied plaintiffs' demand to declare Haines' status as the duly appointed tax assessor, it held that the appointments under § 1-8.3 were invalid and that, inasmuch as Haines was the former assessor, he should continue as temporary assessor until the position was filled.

On July 2, 1970 Richard Messenger, having replaced Gramigna as manager, appointed Howarth, Hogan and Edward Bligh to four-year terms as tax assessors beginning July 1, 1970. In addition, he notified Haines of these appointments and requested that he "return all books, records and other Town property" in his possession. Within a week thereafter, both council and manager appointed Hogan as sole tax assessor for a four-year term. On July 22, 1970 council amended its administrative code (ordinance 15-70), changing § 1-8.3 as follows: "The Division of Tax Assessments shall consist of a board of three members to be appointed by council and hold office for the term of four (4) years * * *." This provision was qualified thusly: "The appointments of the Assessors in their initial term shall be appointed to one (1) year, two (2) years and three (3) years respectively * * *." On the same date, council again appointed Howarth, Hogan and Bligh to the board of tax assessors.

Plaintiffs were unsuccessful in their attempts before the Chancery and Appellate Divisions and our Supreme Court to obtain a stay of that portion of the judgment under review which denied Haines' legal status as a tax assessor.

To facilitate a full consideration of the pending controversy, we entered, at oral argument, a consent order adding Haines as a party plaintiff-appellant, permitting plaintiffs to further amend their complaint to include an allegation

challenging the validity of § 1-8.3 of the 1970 code and allowing the record to be supplemented by the addition of an affidavit by Haines and an answering affidavit by Gramigna. At the court's request, counsel has submitted supplemental memoranda.

When the involved fact pattern of this case and the several contentions of the respective parties, augmented by extensive arguments of counsel, are brought into proper focus, there emerge three critical issues for resolution: (1) Who has the power to appoint the township tax assessor? (2) Did the township create a valid board of tax assessors? (3) Was Haines appointed for a four-year statutory term within the meaning of N.J.S.A. 40:46-6.2? We shall consider these questions seriatim.


Who has the Power to appoint the Township Tax Assessor

Article 10 of the Faulkner Act, N.J.S.A. 40:69A-99 to 103, "Council-Manager Plan B," provides in substance that a municipality adopting such form of government shall be governed by its provisions together with those of Article 2, N.J.S.A. 40:69A-26 to 30, a general article entitled "Incorporation and Powers"; portions of Article 9 N.J.S.A. 40:69A-86 to 98, dealing with council and manager under "Council-Manager Plan A"; and Article 17, N.J.S.A. 40:69A-150 to 210, containing "Additional Provisions Common to Optional Plans." By the terms of N.J.S.A. 40:69A-26, such a municipality is governed by "all applicable provisions of general law." N.J.S.A. 40:69A-28 defines "general law" to mean "any law or provision of law, not inconsistent with this act, heretofore or hereafter enacted which is by its terms applicable or available to all municipalities," plus certain enumerated laws not here germane.

The Legislature has not stated with specificity, either in the Faulkner Act or by general law, that "tax assessors" in council-manager municipalities shall be appointed in a

given manner. The legislative intent, however, appears to be readily ascertainable from the pertinent statutes when read in pari materia and considered with reference to related legislative history.

The appointing power of the municipal manager is set forth in N.J.S.A. 40:69A-95, which in relevant part provides:

The municipal manager shall:

(a) be the chief executive and administrative official of the ...

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