On appeal from the Superior Court, Law Division, Essex County, whose opinion is reported at 177 N.J. Super. 87.
Matthews, Pressler and Petrella. The opinion of the court was delivered by Matthews, P.J.A.D.
[183 NJSuper Page 25] This is an appeal by defendant Essex County Board of Chosen Freeholders from a summary judgment entered in the Law Division holding that under the Optional County Charter Law, N.J.S.A. 40:41A-1 et seq. , the authority to set salaries of county employees below the level of department head is vested in the county executive and not in the board. The facts, which are not in dispute, and the question presented for resolution are set forth in Judge Baime's opinion which is reported in 177 N.J. Super. 87.
We agree with Judge Baime that the fixing of the salaries here in question is an administrative act and that the Legislature has granted that power to plaintiff. In reaching our conclusion, however, we proceed by a slightly different route for the reasons hereinafter expressed.
Prior to the enactment of the Charter Law the boards of freeholders determined the salaries of all county employees pursuant to N.J.S.A. 40A:9-10:
Except as otherwise provided by law, the board of chosen freeholders of the county or the governing body of the municipality shall fix the amount of salary, wages or other compensation to be paid to county and municipal officers and employees unless they are to serve without compensation.
Whether this general statute applies to Charter Law counties depends upon whether it is "not inconsistent" with the Charter Law. N.J.S.A. 40:41A-26(a).
The only clear statement on the subject of determining salaries under the Charter Law, as Judge Baime noted, is found in N.J.S.A. 40:41A-100(d). That section authorizes the freeholders to fix the compensation of its members, the county executive, the county administrator and all department heads. More specifically, it provides:
The compensation of the county executive, supervisor, manager or board president, and of freeholders and the administrative officer and department heads shall be fixed by the board by ordinance promptly after its organization.
Utilizing the expressio unius interpretive aid to statutory construction, Judge Baime concluded that § 100(d) was an exhaustive list of those positions for which the freeholders may set salaries. Since that section was narrower than the general salary setting power of N.J.S.A. 40A:9-10, Judge Baime held that that statute was inconsistent with the Charter Law and thus inapplicable.
Having concluded that N.J.S.A. 40A:9-10 did not apply, Judge Baime resolved the question of who was empowered to set administrative salaries as dependent on how that function was characterized:
Under the County Executive form of government, both the board and the county executive constitute the "governing body" of the ...