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Butler v. Amato

Decided: March 23, 1988.

LARRY BUTLER, PLAINTIFF-APPELLANT,
v.
NICHOLAS AMATO, COUNTY EXECUTIVE OF ESSEX COUNTY, AND COUNTY OF ESSEX, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Essex County, whose opinion is reported at 220 N.J. Super.. 409 (Law Div. 1987).

Pressler, Bilder and Muir. The opinion of the court was delivered by Pressler, P.J.A.D.

Pressler

This controversy requires us to determine the term of office of a county jail warden appointed to fill a vacancy caused by the death of a tenured incumbent. The issue is whether the appointment is for a new three-year term pursuant to N.J.S.A. 30:8-15 or for the extrapolated balance of his predecessor's term. The trial judge concluded that the appointment is for the "balance" of the predecessor's term. We disagree and, accordingly, reverse.

The essential facts are set out at length in the trial court's opinion, 220 N.J. Super. 409 (Law Div.1987). In brief, in January 1976 Albert Collier was duly appointed to a three-year term as warden of the Essex County jail in accordance with N.J.S.A. 30:8-15 which prescribes that term of office. In January 1979,

upon the expiration of his term, Collier was reappointed to the office. That reappointment was attended by the right of tenure pursuant to N.J.S.A. 30:8-15.2, adopted five years after the enactment of N.J.S.A. 30:8-15 and providing that

Any person now or hereafter holding such office, position or employment, who has been or shall be appointed for a full term of three years and after serving such full term shall be reappointed to such office, position or employment, shall, from and after his said reappointment, continue to hold such office, position or employment during good behavior and efficiency and shall not be removed therefrom except as provided in section one of this act [ N.J.S.A. 30:8-15.1].

Collier died in July 1984, leaving the office of warden vacant. On December 4, 1984 then Essex County Executive, Peter Shapiro, appointed plaintiff Larry Butler to the office. Defendant Nicholas Amato succeeded Peter Shapiro as County Executive effective January 1, 1987. In preparation for taking office, Amato wrote to Butler on December 5, 1986, requesting his resignation since he, Amato, wanted his own "management team." Amato nevertheless assured Butler that he would consider retaining him in the office of warden or in any other capacity Butler was interested in. Butler complied with Amato's request, submitting his resignation as of January 1, 1987, by a letter requesting Amato to retain him. Amato did not, and Butler instituted this action claiming that his term of office continued until December 1987, that his resignation was not voluntary, and that his termination by Amato violated his First Amendment rights.

The trial judge dismissed Butler's complaint following hearings on the order to show cause by which the action was commenced. The basis of the judge's decision was his conclusion that on January 2, 1987, the date on which Amato accepted Butler's resignation, Butler's status was that of a holdover in office and that he was therefore terminable at will by the appointing authority. In reaching this conclusion, he relied on N.J.S.A. 30:8-15, which expressly provides that a vacancy in the office of warden shall be filled for the unexpired term. He reasoned, therefore, that the entire period of Collier's incumbency

should be viewed as a succession of separate three-year terms commencing January 1976 when he was first appointed. Thus, he would have started separate three-year terms in January 1979 when he was reappointed, and in January 1982. The January 1982 term would then have expired December 31, 1984. He was thus satisfied that the balance of the term to which Butler was effectively appointed on December 4, 1984 was the term which came to an end three weeks later. Thus, he concluded that from January 1, 1985 forward, Butler was merely a holdover in office.

Had N.J.S.A. 30:8-15 not been supplemented by the subsequent adoption of N.J.S.A. 30:8-15.2, we would have agreed. See Monte v. Milat, 17 N.J. Super. 260, 268 (Law Div.1952). Our difference with the trial judge lies in the significance of that later enactment. As we read N.J.S.A. 30:8-15.2, its import is to abrogate the scheme of a fixed term provided for by 30:8-15 upon the incumbent's reappointment and to substitute therefor a right of tenure in office. Clearly, when an incumbent is reappointed, he is not permitted to be appointed for an additional fixed term or for any term limited by a number of years. He is required by the statute to be permanently appointed to the office, removable therefrom only by cause. In short, he is accorded tenure, not a fixed term.

That that was the intent of the statute is clear from its legislative history. Accompanying the assembly bill, which was enacted as L. ...


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