On appeal from Superior Court of New Jersey, Law Division, Hudson County.
Ard, King and McElroy. The opinion of the court was delivered by McElroy, J.A.D.
Appellant Taylor, an attorney-at-law of this State and a veteran, appeals from a decision of the Law Division holding that he was not entitled to veteran's tenure when dismissed as attorney to respondent board of education (board). See N.J.S.A. 38:16-1. The action was started by a complaint in lieu of prerogative writs in which plaintiff contended he had been dismissed, without a hearing and demonstration of good cause, from his position as attorney (first count) and from a position he also held with the board in "a responsible administrative capacity" (second count). That position was not otherwise defined in the complaint. The Law Division judge did not deal with the issues raised by the second count and we will treat that count later in this opinion. With respect to the claim of veteran's tenure grounded in Taylor's role as attorney to the board, Judge Dowden rendered a comprehensive oral opinion essentially holding that DR 2-110(B)(4) governed the issue; that Taylor as attorney to the board was mandatorily required by that disciplinary rule to withdraw from his position when his client no longer wished him to serve as its counsel, and in such circumstances the provisions of N.J.S.A. 38:16-1 were inapplicable to Taylor's tenure claim. We affirm Judge Dowden's able opinion on that issue substantially for the reasons he gave and add the following.
The trial judge made no specific findings of fact, deeming the issue presented as purely legal in nature. In the exercise of our right to do so, we have examined the record presented and make the following factual findings. R. 2:10-5.*fn1
Taylor was appointed attorney to the board by a resolution effective May 16, 1966 at an initial annual salary of $6,500 payable, as were the salaries of all board employees, in semimonthly installments. There was no fixed term of employment stated in the resolution. Respondent regularly withheld monies for federal and state taxes, Social Security, pension fund contributions and "other key deductions," the latter not otherwise explained. Taylor apparently enjoyed certain "fringe benefits" not delineated by the testimony below except to designate such benefits as those that were "the same as every employee," with the exception, perhaps, of a newly-added dental plan adopted immediately prior to his discharge.
Taylor was admitted to the bars of New York and New Jersey. During the time in question he maintained a law office at 160 Broadway in the City of New York where he had a suite of two rooms and employed a secretary. There is no testimony as to whether he also maintained a law office in New Jersey. He was a certified accountant of New Jersey and New York. He practiced that profession and the law in both states for other clients, in addition to his work for the Board. His accounting firm was styled as Robert W. Taylor and Company and he was a principal of that organization. There is no indication as to where the firm was located. Taylor was supplied with board stationery which designated him as counsel.
When first hired in 1966, and until 1973 or 1974, Taylor acted solely as counsel for the board until its former accountant
resigned. Taylor then performed professional accounting services, but we find that this work was done sporadically and for separate fees.
In 1975 Taylor was given what he termed "administrative" duties in addition to his regular legal work. These functions indeed were of an administrative nature but no new position was created for him and no additional job title was granted. The tasks were "merely assigned to [him] . . . and [he] agreed to undertake them." He admitted that such duties "became part of my regular job." The board passed no resolution creating any additional position for appellant and there was no approval given for any additional title, position or office by the county superintendent of schools.*fn2 Taylor was given additional salary with these added duties, but no separate pay check was given to him in addition to those made out to him as attorney.
Taylor testified, and we find as a fact, that he did some work for the board in connection with school bonds for new school construction. We find, as he testified, that to the extent he did legal work in this connection it was part of his usual duties for which he was paid his regular salary, and any separately connected billing was merely to obtain reimbursement of expenses. The major part of the legal work for the bond issue was done by independent bond counsel. Appellant stated, and we find as a
fact, that whatever additional tasks he performed relative to the bonds were professional accounting work for which he separately billed the board as an accountant on a professional fee basis.
Appellant also testified, and we find no evidence or reasonable inferences to the contrary, that all legal work performed for the board during his 13 years with that body was paid for by way of salary and was not billed to the board, or paid for, on any legal fee basis. Taylor worked an average of 1,000 hours a year for the Board and spent about 600 of those hours on purely legal work and about 400 hours on the additional general tasks assigned to him. He had no regular daily hours nor were any expected of him. He, by agreement or understanding, was expected to do whatever work arose that fit within his duties. All of his work was of a continuous nature, performed for a salary with the usual withholding and deductions, and required almost daily attendance.
In April 1979 appellant and the board had a dispute as to the amount of money he was to receive by way of annual salary increase. Taylor insisted upon a 7% increment and the board offered an increase slightly in excess of 4%. As a result, the board passed a resolution terminating "the service of its legal counsel, Robert W. Taylor, effective May 16, 1979."
On or about July 9, 1979 Taylor filed a petition with the Commissioner of Education claiming veteran's tenure as school board attorney under N.J.S.A. 38:16-1 (first count) and employment tenure "as school business administrator" pursuant to N.J.S.A. 18A:17-2 and N.J.S.A. 18A:6-9 et seq. (second count). A third count, not relevant to any issue here raised, was also pleaded.
The matter was assigned to Administrative Law Judge Springer who, after a hearing, rendered an initial decision on March 17, 1981 holding he had no jurisdiction to determine the question of veteran's tenure. Fox v. Newark Bd. of Ed., 129 N.J.L. 349 (Sup.Ct.1943), aff'd o.b. 130 N.J. 531 (E. & A. 1943). With respect to employment in a role appellant termed "school
business administrator,"*fn3 Judge Springer held, as noted, that Taylor's claim to employment tenure had no merit. In addition to that mentioned in footnote 2, supra, the judge found that Taylor never acquired a certificate as a school business administrator, as required by N.J.S.A. 18A:17-14.2 and N.J.A.C. 6:3-1.18(a)(4), and thus could not, and did not, act de jure or de facto as such administrator.*fn4
On April 16, 1981 Taylor filed his present complaint in lieu of prerogative writs. The matter was heard by Judge Dowden on September 25, 1981 ...