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Oughton v. Board of Fire Commissioners

Decided: January 30, 1981.

SAMUEL E. OUGHTON AND JEANNETTA W. KEYSER, PLAINTIFFS-RESPONDENTS,
v.
BOARD OF FIRE COMMISSIONERS, FIRE DISTRICT NO. 1, MOORESTOWN TOWNSHIP, BURLINGTON COUNTY, ET AL, DEFENDANTS-APPELLANTS, AND DOVER TOWNSHIP FIRE COMMISSIONERS, DEFENDANT-INTERVENOR-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Burlington County. Opinion reported at 168 N.J. Super.. 434 (1979) and N.J. Super. (1980).

Bischoff, Milmed and Francis.

Per Curiam

In a decision reported at 168 N.J. Super. 434 (Law Div.1979) Judge Haines, sitting in the Law Division of the Superior Court, ruled that:

1. Fire commissioners in fire districts may not create paid positions in volunteer fire companies without the prior authorization of the municipal governing body. Id. at 449.

2. The power to create a paid fire department resides only in the governing body of a municipality. Id. at 449.

3. Fire prevention subcode officials are municipal officials and their salaries can only be fixed and paid by the municipality and not the fire commissioners. Id. at 455.

4. Commissioners of fire districts are not authorized to employ either an attorney or an administrator. Id. at 455-456.

5. The Open Public Meetings Act applies to meetings at which the fire commissioners discuss the annual budget and other fire district matters and, while here the initial consideration of the annual budget was undertaken at private meetings held in violation of the Open Public Meetings Act since the budget was adopted at a public meeting which met the requirements of the act it was not adopted in violation of the act. Id. at 456-457.

The defendant Board of Fire Commissioners appealed from the judgment entered implementing that opinion, as did the intervenors Dover Township Fire Commissioners. Those appeals were consolidated.

While the appeals were pending in this court awaiting argument, the Legislature, as a direct response to the Oughton opinion, adopted Chapter 453 of the Laws of 1979 which amended a number of fire protection laws including those relating to the payment of salaries and expenses by fire districts. We thereafter sua sponte remanded the case to the trial court for reconsideration of its determination and judgment in light of the enactment of the statute indicated.

Upon reconsideration Judge Haines filed an opinion reported at 178 N.J. Super. 633 (Law Div.1980) (slip opinion dated Sept. 22, 1980) in which he ruled that as a result of the new legislation:

1. "All New Jersey fire districts . . . are now empowered to create paid positions and incur expenses for district operations, subject only to voter ...


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