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Mizerak v. County of Middlesex

Decided: February 10, 1989.

THOMAS MIZERAK, TEOFIL WEBER, JOSEPH BUSCO, DOUGLAS M. SHEEHAN, KATHERINE ANTONITIS, MARY ANN CASTELL, THERESA H. SETTLECOWSKI, TERENCE J. BRUNDAGE, PETER J. HYLKEMA, GARY S. LANDIAK, HARRIETT ZIVIN, PATRICIA A. ELLIOT, ANN M. SCOTT, KATHLEEN DONAHUE, KAREN SCOTT, MICHAEL GROSS, AND DAVID BATHA, PLAINTIFFS-RESPONDENTS,
v.
COUNTY OF MIDDLESEX, NEW JERSEY, A GOVERNMENTAL BODY POLITIC AND CORPORATE OF NEW JERSEY; THE BOARD OF CHOSEN FREEHOLDERS OF SAID MIDDLESEX COUNTY, N.J.; NAMELY STEVEN J. CAPESTRO, DIRECTOR, THOMAS F. BOYLAN, III; DAVID E. CRABIEL, J. THOMAS CROSS, VINCENT R. MARTINO, DOROTHY K. POWER AND DONALD J. WERNIK; THE COUNTY ADMINISTRATOR OF SAID MIDDLESEX COUNTY, N.J.; NAMELY, JOHN J. MCHUGH; AND THE DEPARTMENT OF HEALTH OF SAID MIDDLESEX COUNTY, N.J., A DEPARTMENT OF SAID COUNTY, JOINTLY AND SEVERALLY, DEFENDANTS-APPELLANTS



On appeal from Superior Court of New Jersey, Law Division, Middlesex County.

Baime and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.

D'annunzio

[230 NJSuper Page 578] Plaintiffs, employed by the Middlesex County Health Department as sanitary inspectors, commenced this action for a declaratory judgment that they are entitled to the benefit of N.J.S.A. 26:3-25.1 (hereinafter § 25.1) which provides that sanitary inspectors and others employed "by any board of health, municipality or group of municipalities shall receive his or her maximum salary in their respective salary ranges, within five years of the date of his or her appointment. . . ."*fn1 See DeHay v. West New York, 189 N.J. Super. 340 (App.Div.1983), certif. den.,

94 N.J. 591 (1983), applying this statute to benefit a sanitary inspector employed by a local board of health. In addition to a judgment establishing their entitlement to the maximum salary in the range and to back pay based on the maximum salary for prior years, plaintiffs also seek benefits, such as employer pension contributions, for prior years calculated on their corrected salaries.

Defendants contend that § 25.1 is not applicable to employees of a county health department created pursuant to N.J.S.A. 26:3A2-1 et seq.

On cross motions for summary judgment, the Law Division judge ruled that the "clear and unambiguous language of the Legislature . . . makes it clear that the county board is a local board within the meaning of § 25.1 and bound by it" and entered judgment for plaintiffs. Defendants appeal, and we now reverse.

The Middlesex County Board of Chosen Freeholders created the Middlesex County Health Department (department) by its resolution of April 6, 1978, adopted pursuant to the Local Health Services Act (the Act). L. 1975, c. 329, as amended by L. 1977, c. 443, now codified as N.J.S.A. 26:3A2-1 et seq. The Act's objective is the delivery of health services by areawide health agencies as an alternative to the delivery of such services by local boards of health. Thus, two statutory health services schemes exist; the traditional system which relies on local boards of health to provide health services, N.J.S.A. 26:3-1 et seq., and the areawide system established by the Act, N.J.S.A. 26:3A2-1 et seq. The Act requires every municipality to provide health services in compliance with certain performance standards. These services may be provided directly by a local board of health, the traditional system pursuant to N.J.S.A. 26:3-1 et seq., or through a regional or areawide system, such as a county health department. N.J.S.A. 26:3A2-10.

The Act provides for the establishment, by the freeholders, of a county board of health, N.J.S.A. 26:3A2-4, authorized to

exercise all the powers of a local board of health, N.J.S.A. 26:3A2-3c. and 5c., including the power to adopt, amend and repeal health ordinances, N.J.S.A. 26:3A2-8. Initially, the Act required the establishment of a county health department by the county board of health. L. 1975, c. 329, § 6, now codified at N.J.S.A. 26:3A2-6a. The 1977 amendment empowered any board of freeholders to establish a county health department directly, without creating a county board of health. L. 1977, c. 443, § 5, now codified as N.J.S.A. 26:3A2-6b. Middlesex County Board of Freeholders' April 6, 1978 resolution clearly expressed an intent to avoid creation of a county board of health and to take advantage of chapter 443 by directly establishing a county health department.

The department performs health services for 18 Middlesex County municipalities, but these services are performed pursuant to individual contracts between each participating municipality and the Middlesex County Board of Chosen Freeholders. Each participating municipality contracts to pay a specified annual sum to the county for these health services. The department's budget, including the salaries of its employees, such as the plaintiffs, is established and funded by the freeholder board, and the department is not empowered to adopt, amend and repeal health ordinances.

Thus, although the department provides services to municipalities, the department is not a local or county board of health. Consequently, the department is not covered by the plain language of § 25.1 which applies only to "any board of health, municipality or group of municipalities." Moreover, the history and rationale of § 25.1 indicates that it does not apply to the department.

The current statute establishing and regulating local boards of health, N.J.S.A. 26:3-1 et seq., was originally enacted in 1887. L. 1887, c. 68. See generally Grosso v. Paterson, 55 N.J. Super. ...


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