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Lamb v. City of Ventnor

June 30, 1978


Francis, A.j.s.c.


[161 NJSuper Page 141] Plaintiff Raymond Lamb brings this action pursuant to N.J.S.A. 40A:9-144.1 to review

his dismissal as tax collector of the City of Ventnor. In general terms, the issue raised by plaintiff is whether a municipality may dismiss its tax collector for refusing to assume responsibility for the implementation and collection of a newly initiated charge on excess water usage. Plaintiff now seeks reinstatement as tax collector, reimbursement of back pay and restoration of the status quo.

Plaintiff was appointed tax collector of the City of Ventnor on September 1, 1970, at which time he also assumed the duties of official tax searcher. Among the responsibilities he assumed as tax collector were billing and collecting local property taxes, preparation of monthly and annual revenue reports for presentation to the board of commissioners, and maintenance of the records relating thereto.

In 1973, in response to pressures from the State of New Jersey to take water conservation measures, the board of commissioners of Ventnor (board) began taking steps to implement a water metering system whereby residents would be billed on a graduated scale for water usage in excess of a standard allowance. From 1974 on plaintiff, in his capacity as tax collector, had administered the billing program on water meter installations as part of his routine duties. By the summer of 1976 the city had begun to intensify its implementation efforts, hiring an independent expert to design and draw up specifications for a water billing system.

A series of workshop meetings designed to expedite implementation were held throughout the Fall of 1976. On November 10, 1976 plaintiff was informed in writing by Commissioner Best, who had charge of the Revenue and Finance Department, of the specific responsibilities which were to be assigned to him as tax collector in implementing and administering the new water billing system. By late January 1977 implementation of the system lagged behind schedule, due at least partially to plaintiff's refusal to follow Best's directive. As a result, Best served plaintiff on February 11, 1977 with notice of a hearing to remove

plaintiff from the office of the tax collector on the ground that plaintiff failed to fulfill the obligations thereof.

Plaintiff responded by contracting Bernard M. Murphy, tax collector of the Township of Egg Harbor, who had also been active on the tax collectors' grievance committee, and by arranging a meeting of Best, Murphy and himself at a diner. At that meeting plaintiff demanded increased pay and additional help in return for assuming the additional duties of the water billing program. Best represented to plaintiff that he would attempt to satisfy both demands, but that ultimately the increased pay would be subject to board approval, and additional help would depend upon a demonstrated need therefor. Plaintiff left Best at the diner meeting with the impression that the offer was reasonable and that plaintiff would assume the new duties.

When the additional help and pay appeared doubtful, over the next few days, plaintiff again refused to cooperate with implementation efforts, and his removal hearing was rescheduled for March 11. On April 1, after a hearing on the record, plaintiff was advised that he had been found guilty of violating the requirements of his office, and that he was terminated effective April 7, 1977.

Plaintiff thereafter filed the complaint on which this action is based, alleging the additional responsibilities engendered by the water billing program would have made it impossible for him to fulfill his statutory obligations as tax collector and that the action of defendant City of Ventnor in terminating his employment was arbitrary, capricious and unreasonable. Plaintiff has advanced four main arguments in his brief and summation. Plaintiff first contends that the charge for excess water usage is not a tax and therefore is not the responsibility of the tax collector. The next three contentions proceed on that premise. Plaintiff's second contention is that, because detailed statutory provisions create numerous duties for the municipal tax collector, and such provisions do not expressly mention the duty of collections

for excess water usage charges, the defendant city exceeded its grant of taxing authority from the State by imposing such a responsibility on plaintiff. Plaintiff further contends that the imposition of such responsibility creates a conflict which interferes with the statutorily mandated duties of the office of tax collector. Finally, plaintiff contends that the imposition of the additional duties effects a reduction in the salary of the municipal tax collector in violation of N.J.S.A. 40A:9-165. Plaintiff's contentions will be considered ad seriatim.

As to plaintiff's first contention, it is clear in New Jersey that charges for water usage may be distinguished from taxes in certain kinds of cases. However, examination of cases making such a distinction reveals that these cases have focused on the contractual nature of the relationship between the municipality providing water and the residents consuming that water rather than on the procedure for collecting water charges. See Daniel v. Oakland , 124 N.J. Super. 69 (App. Div. 1973); Lehigh Valley R.R. Co. v. Jersey City , 103 N.J.L. 574 (Sup. Ct. 1927); Ford Motor Co. v. Kearny , 91 N.J.L. 671 (E. & A. 1918). See also, K.S.B. Technical Sales Corp. v. North Jersey Water Supply Comm'n , 151 N.J. Super. 218 (App. Div. 1977). On the other hand, the Legislature in New Jersey has often elected to include water rents with taxes in statutory provisions dealing with various aspects of the administration of the taxing power. See, e.g., N.J.S.A. 40:62-79; N.J.S.A. 54:5-19.

Under these circumstances the question becomes not so much whether water rents are "taxes" under a strict definition of that term, an essentially semantical exercise, but whether municipal government may treat water rents as taxes for purposes of municipal collection procedures. Plaintiff contends that the duties and obligations of the tax collector flow exclusively from the State and are not a matter of local prerogative. In support of this contention he cites a plethora of statutory directives in N.J.S.A. 54:4 and 54:5 which

impose mandatory duties upon the tax collector. Plaintiff posits that these duties are exhaustive, thus indicating a legislative intent to preclude the municipal governing body from adding to them.

It is, of course, true that there may be limits as to the amount of control which a municipality may exercise over its tax collector, but this will not preclude a municipality from exercising the reasonable control required to administer the affairs of the municipality in a reasonable and efficient manner.

Although the tax collector holds an elective office and his duties are in the main defined by statute, he is nevertheless a borough officer engaged in performing an important branch of the borough's business, a division of public enterprise that is closely integrated with and in some name respects placed under the direction of borough council. Hewitt v. Seaside Park Mayor and Council , 133 N.J.L. 467 (Sup. Ct. 1945).

Shortly before plaintiff assumed the office of tax collector in 1970, Ventnor duly adopted Ordinance 6 (1969), which established and defined numerous positions and their respective duties within the scheme of its local government. The ordinance incorporated a reclassification survey report in which are stated, among other matters, examples of the kinds of work required of the tax collector. The report states that the tax collector "in addition to supervising and performing the work involved in the collecting of personal and property taxes, may supervise and perform the work involved in the collection of other revenues. * * *" In effect, plaintiff challenges the validity of that ordinance as violative of state preemption in the field of taxation.

To prevail on a claim of preemption, plaintiff must demonstrate an unreasonable conflict between the ordinance and the statute. Alternatively, plaintiff may show preemption by demonstrating legislative intent to completely occupy an area of regulation to the exclusion of local ...

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