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Horner v. Township Committee of Township of Ocean

Decided: October 3, 1980.


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

Matthews, Morgan and Morton I. Greenberg. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.


Plaintiff, the tax assessor of the Township of Ocean, brought this action against defendant officials of the township.*fn1 Plaintiff alleged that defendants were harassing him and interfering with his performance in carrying out his duties as tax assessor. He sought injunctive relief against them. They counterclaimed, requesting an order compelling him to establish office hours consistent with his compensation or alternatively removing him from office.*fn2 The trial judge on defendants' motion for summary judgment determined that plaintiff should have regular office hours and defendants were directed to establish them by ordinance. Plaintiff's accusations and allegations of harassment were dismissed with prejudice. Ultimately, after a motion for rehearing of the summary judgment application, the trial judge himself, by an order dated September 26, 1979, fixed the hours for plaintiff to have office hours. The hours were 8:30 a.m. to 10:00 a.m., Monday through Friday, and from 9:00 a.m. to 12:00 noon on Saturday. In addition, plaintiff was directed to devote five hours weekly to field work and related tasks. The judge reached this decision largely on the basis of oral testimony from plaintiff himself describing his duties. Plaintiff appeals from the order of September 26, 1979.

Though there are disputes between the parties as to the availability of plaintiff to the public, the germane facts necessary

to resolve this appeal are not in dispute. Plaintiff has been Ocean Township tax assessor since 1972. The assessor's office is located in the township hall. In 1968 the township by ordinance fixed the assessor's office hours as 6:30 p.m. to 8:30 p.m. on Wednesdays and Thursdays. On January 1, 1973 an assistant for the office was appointed. Her hours were established as 9:00 a.m. to 3:00 p.m., Monday through Friday. The assistant kept the office open and, according to plaintiff, did "all of the paper work and administrative work of the Assessor." Starting in 1962 and until the events giving rise to this litigation, plaintiff maintained office hours on Thursday evenings from 7:00 p.m. to 10:00 p.m. In addition, plaintiff does field work, inspecting properties and buildings. While this schedule did not comply with the ordinance, apparently the parties informally agreed to it.

In December 1978 plaintiff became full-time tax assessor in Stafford Township. Nevertheless, he continued as part-time assessor in Ocean Township. His hours in Stafford Township were set at 8:30 a.m. to 4:30 p.m., Monday through Friday. He is paid $15,177 annually by Stafford Township and $9,900 annually by Ocean Township.

The dispute generating this litigation dates from an ordinance adopted by Ocean Township in January 1979 establishing the hours of the tax assessor's office as 8:30 a.m. to 4:30 p.m. from Monday through Friday. Subsequently, defendants effectively precluded plaintiff from holding public office hours on Thursday evenings by adopting a resolution on February 8, 1979, which excluded the public from the township hall from 5:00 p.m. to 8:00 a.m. unless accompanied by a township committeeman. On March 1, 1979, the township committee passed a resolution discharging the office assistant.*fn3 According to plaintiff, "the obvious effect of this action by the Township Committee was to shut down the full-time operation of the assessor's office and to

force me to do all of the administrative work which my office assistant had been doing . . . ." Plaintiff did not comply with the new ordinance but, starting February 3, 1979 and continuing at least to the time of the proceedings in the trial court, he increased his office hours by adding Saturday mornings from 9:00 a.m. to 12:00 noon to his Thursday evening hours.

In granting summary judgment against plaintiff the trial judge in his oral opinion stated:

The Court makes a finding as a matter of law that the governing body has the power pursuant to [ N.J.S.A. ] 40A:9-146 to adopt an ordinance fixing the amount of compensation and terms of the part-time assessor, tax assessor, that that is not contrary or in violation of Title 54 or the holding of the unreported Law Division case of Paterson versus Rooney , which was referred to by counsel for the plaintiff.*fn4

On this appeal the basic questions to be determined are whether the municipality has threshold power to regulate the assessor's hours and, if so, whether the State has preempted the power. Both the municipality and the State have some role in the office of assessor. A tax assessor is appointed by the municipality in which he serves. N.J.S.A. 40A:9-146; N.J.S.A. 40A:9-148. In addition, the municipality by ordinance fixes his compensation, which may be increased, decreased or altered except that the compensation of a tax assessor may not be reduced during his term of office. N.J.S.A. 40A:9-146; N.J.S.A. 40A:9-165. The municipality, however, is restricted in its appointment to persons who have received a tax assessor certificate from the Director of the Division of Taxation of the Department of the Treasury. N.J.S.A. 54:1-35.30. If a tax assessor attains a tax assessor certificate and completes not less than four years in office, he will upon reappointment attain ...

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