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David M. Fried v. Lakewood Township Municipal Utilities Authority

Decided: December 17, 1979.

DAVID M. FRIED, PLAINTIFF-APPELLANT,
v.
LAKEWOOD TOWNSHIP MUNICIPAL UTILITIES AUTHORITY AND DON VAN SANT, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Ocean County.

Bischoff, Botter and Dwyer. The opinion of the court was delivered by Dwyer, J.A.D.

Dwyer

On cross-motions for summary judgment the trial judge held that the Veterans' Tenure Act, N.J.S.A. 38:16-1 et seq. , did not apply to plaintiff David M. Fried in his position as executive director of defendant Lakewood Township Municipal Utilities Authority (Authority), a corporation organized under N.J.S.A. 40:14B-1 et seq. , and dismissed Fried's action in lieu of prerogative writs challenging his termination without a hearing or establishing cause. Fried filed a timely appeal.

The following facts are not disputed. Fried was an honorably discharged veteran. Fried was employed as executive director from April 8, 1976 to February 9, 1977 on a part-time basis. On the latter date the Authority adopted a resolution appointing Fried executive director on a part-time basis at a stated salary without specifying any period of service. On January 31, 1978 the Authority adopted a resolution terminating Fried as executive director and appointing defendant Don Van Sant, an honorably discharged veteran, in his place.

The Authority states that the appointment was made pursuant to the provisions of N.J.S.A. 40:14B-18, which provides in relevant part:

Counsel for Fried urges that the judgment should be reversed because the trial judge erred in his interpretation of the law. The trial judge held that the Legislature, in enacting the provision found in N.J.S.A. 40:14B-18, expressed an intent that tenure should not attach to the three specified offices and thereby limited the earlier general law, the Veterans' Tenure Act, N.J.S.A. 38:16-1 et seq. , which gives tenure to veterans in all state, county and municipal offices except those offices excluded by the limitations in that law. The trial judge relied upon Perrella v. Jersey City Bd. of Ed. , 51 N.J. 323, 331 (1968); Koribanics v. Clifton Bd. of Ed. , 48 N.J. 1, 5 (1966), and Barringer v. Miele , 6 N.J. 139 (1951).

Although these cases support the denial of tenure under the Veterans' Tenure Act, we do not find it necessary to consider the arguments advanced by appellant why those cases are inapplicable, because there is another reason that makes the Veterans' Tenure Act not applicable.

The Legislature has provided in N.J.S.A. 40:14B-18 that the Authority, in respect to the three specified offices, "shall determine their . . . terms of office, duties and compensation . . .." We interpret this provision to mean that the Legislature directed that the Authority shall fix terms for the three specified offices.

In Talty v. Hoboken Bd. of Ed. , 10 N.J. 69 (1952), the Supreme Court construed the provision in R.S. 18:14-56, which provided that

Every board of education shall employ a competent physician to be known as the medical inspector, and may also employ a nurse, and fix their salaries and terms of office.

The court viewed this language as a direction by the Legislature that boards of education were to fix a term of office for the

office of medical inspector. Hence, such office was one for which there was a term fixed by law within the exclusion of the Veterans' ...


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