Rimm, J.t.c. (temporarily assigned).
[225 NJSuper Page 476] The issue before the court is the right of a tax assessor to an increase of salary given to all other municipal officers and employees. The statute applicable to the controversy between the parties is N.J.S.A. 40A:9-165 which provides that the governing body of a municipality shall fix the salaries, wages or
compensation paid to the officers and employees of a municipality. Specifically, the statute provides in pertinent part as follows:
Salaries, wages or compensation fixed and determined by ordinance may, from time to time, be increased, decreased or altered by ordinance. No such ordinance shall reduce the salary of, or deny without good cause an increase in salary given to all other municipal officers and employees to, any tax assessor, tax collector or municipal clerk during the term for which he shall have been appointed. [ N.J.S.A. 40A:9-165]
In the present case, plaintiff tax assessor claims that he was denied "without good cause an increase in salary given to all other municipal officers and employees." This specific language resulted from amendments to N.J.S.A. 40A:9-165 by L. 1981, c. 393, § 28 and L. 1981, c. 394, § 5, effective January 6, 1982. With regard to the last quoted language in the statute, this case is, as counsel for plaintiffs has pointed out, a case of first impression.
Plaintiff, William H. Reeser (Reeser), is the tax assessor of defendant township and has been tax assessor since February 1980. He is a certified tax assessor pursuant to N.J.S.A. 54:1-35.25. For the calendar year 1986 Reeser's salary as tax assessor was $16,542.33. For the calendar year 1987, in accordance with Ordinance No. 6-87, adopted on June 23, 1987, Reeser's annual salary was increased to $17,212, or an increase of 4.05%. Plaintiffs allege, in their complaint, that all other employees of the township received salary increases in excess of 10% up to a high of 48.72%, with the exception of the heavy equipment operator and the landfill operator who are covered by a collective bargaining agreement. Plaintiffs also assert that the disparity between the increase in Reeser's salary and the increases in the salaries of other employees is contrary to N.J.S.A. 40A:9-165. Plaintiffs further allege that the smaller increase in Reeser's salary, as compared with the increases in the salaries of other employees, resulted from Reeser's refusal to provide the mayor of the township with weekly reports describing his assessing activities. Upon the filing of their verified complaint, plaintiffs obtained an order directing defendants,
the township and the mayor, to show cause why judgment should not be entered in favor of plaintiffs and against defendants ordering defendants to grant a salary increase to Reeser for the year 1987 commensurate with the increases in salaries given to all other municipal employees.
In addition to filing an answer, defendants filed an affidavit of the mayor in which he said that "[b]ased upon the limits of . . . [Reeser's] duties and his performance as I have observed it, I was of the opinion that a fair salary increase would be in the amount of approximately 4%." He made a recommendation to the township council accordingly. The affidavit also states that Reeser refuses to submit a monthly activity report to the mayor about his assessing activities.*fn1
On the return date of the order to show cause, the parties presented oral testimony, and plaintiffs had various documents marked in evidence. Reeser testified that he had been the tax assessor since February 1980, and that, during the five-year period prior to 1987, he had never received any letter or other communication expressing dissatisfaction with his services as township assessor.
Defendant, mayor, became mayor on January 1, 1986, and was the first popularly elected mayor under a new form of government effective on that date. On April 18, 1986, the mayor wrote a letter to Reeser asking him to prepare "a weekly activity report for me, with a copy to the Administrator, of your outside*fn2 assessing activities." Thereafter, the mayor made an oral request for bi-weekly reports instead of weekly reports. Following receipt of these requests, Reeser discussed them
with the Atlantic County tax administrator. He then advised the mayor that he would not ...