This matter is before me on remand from the Appellate Division. On May 7, 1979 I decided that it was not permissible for fire commissioners to establish paid positions in fire districts without prior authority from the governing bodies of their municipalities. I also held that they were not authorized to pay certain expenses otherwise budgeted for payment. That decision, reported in Oughton v. Board of Fire Comm'rs , 168 N.J. Super. 434 (Law Div.1979), was appealed. Before argument the Legislature adopted Chapter 453 of the Laws of 1979, amending a number of fire protection laws, including those relating to the payment of salaries and expenses of fire districts. This legislation occasioned the remand, which provided in pertinent part:
Sua sponte we remand this case to the trial court to reconsider its determination and the judgment entered in the light of the enactment of L. 1979, c. 453.
Shortly after the passage of the 1979 law and in accordance with one of its provisos, the Moorestown Fire District adopted a resolution authorizing the retroactive payment of salaries for positions created in 1979 and expenses, including counsel fees, otherwise prohibited as a result of my decision. Implementation of this resolution was stayed until this response to the remand could be provided.
The history of the 1979 amendments indicates a clear intent to resolve the problems underlined in the first Oughton decision, a gratifying legislative response to a difficult statewide problem. The statement accompanying the initial amendatory bill expressly set forth its intention "to nullify the primary effects" of Oughton v. Board of Fire Comm'rs. Statements attached to later amendatory bills reflect a like intention. Still to be resolved, however, is the question of whether the 1979 law gives fire commissioners autonomy with respect to the creation of paid fire departments. May they do so without the prior approval of municipal governing bodies? Plaintiffs argue that they may not, pointing to the reasoning in the original Oughton
opinion, which agreed with that contention. That conclusion was based upon an analysis of the existing statutes, particularly N.J.S.A. 40A:14-7 and 41, which provided express authority for municipal governing bodies to establish paid fire departments and prohibited the conversion of volunteer fire companies into such departments without voter approval. No express authority of that kind was given to fire commissioners. The first draft of the new law contained an express repealer of § 7, deleted in subsequent drafts; the statute finally adopted did not alter either § 7 or § 41. Plaintiffs rely upon this circumstance, in part, in arguing that the Legislature did not intend to change my interpretation of the earlier law. However, I have decided that the contrary is true -- that fire commissioners now have independent authority to create paid positions for fire districts and to raise money for all district expenses.
It must be recognized at the outset that fire commissioners have always enjoyed a certain amount of independence, having had the authority to raise money through taxation with which to purchase equipment and supplies and pay the expense of training personnel, all without municipal approval. Nevertheless, the extension of their tax power to permit the raising of money for paid positions and for all district expenses represents a significant change in philosophy. Fire commissioners now constitute a seldom-created public body, one which decides upon the nature and extent of fire district expenses and then raises the money to meet them by taxing the owners of real estate in the district, uncontrolled except by certain annual statutory budget caps and the requirements that the voters elect them and approve their budgets. They need not, as in the case of a governing body, consider all municipal expenses and may raise money for fire-fighting purposes without regard to other obligations of their district taxpayers. Plaintiffs quarrel with the policy which permits this extension of power, but that dispute is not for judicial resolution. The delegation of power to fire commissioners is the business of the Legislature, subject to judicial interpretation
No doubt the Legislature has recognized the fact that paid personnel for some fire fighting units have become a necessity. At the trial of this cause, for example, fire personnel from Old Bridge testified that fires occurred in their municipality at the rate of nearly three a day, making the burden of constant response to fire emergencies too heavy to be carried by volunteers. Furthermore, the new legislation merely recognizes the de facto creation of paid positions in many fire districts in New Jersey, as revealed by many witnesses. Paid fire departments have long been recognized by our statutes; only the process by which these departments are to be created has been questioned in these proceedings.
It must be assumed that the Legislature, in clarifying the authority of fire commissioners, was aware of existing practices in fire districts and intended its new law to provide for them. It said so when it announced its intention to address the effects of Oughton. These statements and the contemporary factual setting for the legislation constitute its history, recognized by courts as a basic guide to intention. Levin v. Parsippany-Troy Hills , 82 N.J. 174 (1980); Accardi v. North Wildwood , 145 N.J. Super. 532 (Law Div.1976). This history strongly supports the conclusion that the Legislature intended to provide fire commissioners with autonomous financial authority. This determination is further supported by the fact that the pertinent provisions of the 1979 amendment are added to N.J.S.A. 40A:14-81, which previously provided in full that:
The commissioners of a fire district shall have the powers, duties and functions within said district to the same extent as in the case of municipalities, relating to the prevention and extinguishment of fires and the regulation of fire hazards.
I previously held that his language, despite its apparent breadth, did not confer any authority upon fire commissioners to pay salaries. This conclusion rested upon a general analysis of related statutes and in particular upon the lack of any express authority, as conferred upon governing bodies under N.J.S.A.
40A:14-7, to pay personnel. The new law gives that express authority to fire commissioners, now making clear that their powers with respect to the creation of paid departments in their districts are as extensive as those possessed by governing bodies with respect to paid municipal departments.*fn1
All New Jersey fire districts, including the Moorestown district, are now empowered to create paid positions and incur expenses for district operations, subject only to voter approval of budgets. Under the retroactive section of the amending legislation they may pay past, promised salaries and previously incurred expenses, if statutory conditions are met. Moorestown proposes to make these payments. Whether it has complied with the statute in that respect requires discussion.
Section 13 of the new act reads as follows:
Any fire district which has prior to the effective date of this act, established any paid position or positions within the fire department, or for the fire district, or has incurred expenses in the operation of said district, may, by resolution of the board of fire commissioners provide for the payment of compensation to persons employed in such paid position or positions for any time of employment prior to the adoption of such resolution during which compensation was discontinued as a result of court action, and for any time remaining after the adoption of such resolution but prior to the date of final adoption of the first fire district
budget pursuant to this act. Such compensation shall not exceed the amount such persons would have received during such time.
It is clearly within the power of the Legislature (with certain exceptions not involved here) to make its laws retroactive. Rothman v. Rothman , 65 N.J. 219 (1974); Skulski v. Nolan , 68 N.J. 179 (1975).
The Moorestown fire commissioners "established" a number of paid positions in 1979 and also "incurred expenses" by way of costs and counsel fees relating to this litigation. These salaries and expenses were not paid by reason of the restraints imposed in accordance with the original Oughton decision. Plaintiffs, subject to their argument that only the governing body may authorize paid positions, concede that all personnel serving in these positions may be paid by virtue of § 13, except the administrator. I am in agreement with this concession, with the caveat that such payments may be made only to personnel who performed or will perform actual work in the positions created. The problem of the administrator requires further discussion. It is plaintiffs' argument that his position was created in the course of proceedings which violated the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. If so, § 15 of that law makes the action void, consequently prohibiting the establishment of the administrator's position.
The Open Public Meetings Act, frequently referred to as the "Sunshine Law," requires meetings of public bodies to be open to the public at all times, except in certain designated cases. N.J.S.A. 10:4-12. The Moorestown fire commissioners, who are subject to this law, decided to create the paid position of administrator for their district at a private meeting held at the home of one of the commissioners on January 16, 1979. At the same time and place a salary for the position was agreed upon. No notice of that meeting was given, as required by N.J.S.A. 10:4-9, and no member of the public was present. On January 22, 1979 the budget, also considered at two prior private meetings,
was presented and adopted at a public meeting of the commissioners. The budget contained an item reflecting the new position and the salary established for it. After a quick reading, without discussion by the commissioners or opportunity for discussion by the public, the budget was adopted. In response to an inquiry by a member of the audience, one commissioner advised that the new position had been discussed and decided upon at a closed meeting. Then, on February 8, 1979, a resolution was adopted creating the post of administrator. It does not appear that notice of this meeting was sent to any newspaper; the resolution was adopted without discussion by the fire commissioners and without opportunity for public discussion until after the resolution had received the favorable, unanimous vote of the commissioners. On April 10, 1979 an effort was made to correct these patent violations of the Sunshine Law. Resolutions were introduced and adopted confirming the creation of the administrator's position and the budgeted salary for that position. At this meeting there was no discussion of any kind by the fire commissioners regarding the resolution. The reasons for establishing the position and the salary were not mentioned. The time for public discussion had passed by the time the confirming resolution was adopted and no opportunity was then given to members of the public for any discussion concerning its passage.
The fire commissioners first suggested in their testimony a belief that the creation of the new job and the fixing of its salary were properly accomplished under the exception contained in N.J.S.A. 10:4-12(b), dealing with personnel discussions. That exception reads:
b. A public body may exclude the public only from that portion of a meeting at which the public body discusses:
(8) Any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public ...