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Libby v. Union County Board of Chosen Freeholders

Decided: November 15, 1973.

WILLIAM F. LIBBY, ET AL., PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS,
v.
UNION COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANT-APPELLANT AND CROSS-RESPONDENT



Halpern, Matthews and Bischoff.

Per Curiam

Plaintiffs, county employees, sued defendant Union County Board of Freeholders to recover longevity pay. They premise their action on defendant's resolution dated April 13, 1967, establishing a program of longevity pay retroactive to January 1, 1967.

Plaintiffs, all former employees of various municipal police departments in the County of Union, are now employed in the county prosecutor's office, sheriff's office, or as county clerks. They contend their prior municipal employment should be used in computing their eligibility for longevity pay, citing as authority N.J.S.A. 40:11-5 (now N.J.S.A. 40A:9-5).

On cross-motions for summary judgment the trial judge held plaintiffs were entitled to longevity pay for the years 1971 and 1972, the years after suit was filed (the complaint having been filed March 2, 1971), but denied longevity pay

to plaintiffs for the period January 1, 1967 to January 1, 1971. This denial was based upon a belief there would be budgetary problems on the part of defendant and the conclusion that plaintiffs were guilty of laches and, by delay, had waived their right to be paid for prior years. Both parties have appealed.

N.J.S.A. 40A:9-5 provides as follows:

Whenever heretofore or hereafter a transfer has been or shall be effected by appointment, assignment or promotion of a municipal employee to any other department or position in municipal employment, or to a position or department of the county government; or of a county employee to any other position or department in county employment, or to a department or position of a municipal government, in counties of the first or second class, the period of such prior service in said county or municipal employment, for any purpose whatsoever, shall be computed as if the whole period of employment of such employee had been in the service of the department, or in the position, to which the said employee had been transferred.

Defendant contends this statute applies only where a municipal employee involuntarily goes from municipal employment to county employment, and further argues that the statute does not apply where a municipal employee voluntarily terminates his employment and immediately thereafter enters county employment.

Municipal governments and county governments are separate entities and an involuntary transfer from one to the other would be a rarity. The only application which the county suggests is the possible creation of a regional police force into which municipal police might be incorporated.

It is conceded by the parties that there is no law now in effect which would require a municipal employee to submit to an involuntary transfer to county employment or require a county employee to submit to an involuntary transfer to municipal employment. Any such transfer must be voluntary on the part of the employee.

To accept the argument of defendant that this statute only applies in the event of an involuntary transfer, we would have to assume the statute is ...


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