Handler, Meanor and Kole. The opinion of the court was delivered by Kole, J.s.c. Temporarily Assigned.
Defendant John Brennan was appointed clerk of the Hudson County District Court by its presiding judge in 1967. He is a member of the Public Employees Retirement System (PERS). In 1971 he reached the age of 70 but, on November 14, 1970, the presiding judge approved his continuance in employment until February 1, 1972 by filing the required notice with PERS pursuant to N.J.S.A. 43:15A-47(b). On January 3, 1972 the presiding judge filed a similar notice extending defendant's employment until February 1973.
On January 12 and 22, 1973 the assignment judge for Hudson County and the presiding judge of the county district court, respectively, advised defendant by letter that no further extensions of his service would be granted. On January 25, 1973 the Board of Chosen Freeholders of Hudson County (Board), by resolution, directed that a notice of request for continuance of employment of defendant be forwarded to PERS.
After a hearing pursuant to an order to show cause issued to defendant and the Board by the assignment judge, he entered an order enjoining defendant from performing duties
as clerk of the county district court and the Board from endeavoring to continue defendant in that position. Defendant Brennan appeals.
The sole issue is whether the assignment judge or presiding judge of the county district court on the one hand, or the Board on the other, shall be considered the "employer" of the clerk of the county district court for the purposes of N.J.S.A. 43:15A-47(b).
That statutory provision states:
Any member in service who attains 70 years of age shall be retired by the board of trustees on a service retirement allowance forthwith on the first day of the next calendar month, or at such time within 1 month thereafter as it finds advisable, except that an employee attaining 70 years of age may be continued in service on an annual basis upon written notice to the retirement system by the head of the State department or employer where the employee is employed. [Emphasis added]
We hold that the employer under this section of the statute is not the Board, but rather the presiding judge of the county district court, subject to the supervision of the assignment judge and the Chief Justice.
We so hold even though the attributes of fiscal control as to an employee normally associated with being an employer reside in the Board and the latter may otherwise be considered an "employer" under the PERS Act (N.J.S.A. 43:15A-6 et seq.) by reason thereof. Thus, the clerk's salary is fixed and paid by the Board N.J.S.A. 2A:6-26 and 27. The Board is the "employer" that in the first instance must consent by resolution to permit county employees such as Brennan to be eligible for participation in PERS N.J.S.A. 43:15A-65(a). Permission for county employees to participate in fact was accomplished by Board resolution. As the agency in control of the money used to compensate employees paid by the county, such as the clerk of the county district court, the Board makes the required salary deductions and contributions to be paid to PERS on their behalf. See, e.g., N.J.S.A. 43:15A-65(a), 10, 19 and 24. Additionally, the
Board is the "employer" under N.J.S.A. 43:15A-67 whose chief fiscal officer must submit to the retirement system such information and perform such other duties as would be performed in the state service by the head ...