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Haus v. Mayor and Council of Borough of South Plainfield

Decided: January 10, 1990.

CHARLES C. HAUS, JAMES V. ECKERT AND GARY TOTH, PLAINTIFFS-APPELLANTS,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF SOUTH PLAINFIELD, DEFENDANT-RESPONDENT



J.h. Coleman, Brody and Muir, Jr. The opinion of the court was delivered by Brody, J.A.D.

Brody

This appeal requires us to interpret that portion of N.J.S.A. 40A:9-165 which protects a municipal tax assessor, municipal tax collector and municipal clerk (protected officers) from being denied "without good cause an increase in salary given to all other municipal officers and employees. . . ." In the only reported opinion on the subject, Judge Rimm found that the statute protected a municipal tax assessor whom the governing body obviously had singled out for a token raise as a political reprisal. Mun. Assessors of N.J. v. Mullica Tp., 225 N.J. Super. 475 (Law Div.1988). Here, aside from the alleged disparity in salary increases, there is no evidence that the protected officers were the object of political reprisal. Also, the reported opinion does not offer guidance for deciding whether a salary increase given protected officers satisfies the statute.

Plaintiffs are protected officers. Charles Haus is the South Plainfield tax collector, James Eckert is the borough clerk, and Gary Toth is the borough tax assessor. In this action in lieu of prerogative writs, plaintiffs demand judgment invalidating the Borough's 1986, 1987 and 1988 salary ordinances because their raises for those years were allegedly less than raises generally given other Borough officers and employees. The trial judge, relying largely on the presumption of validity that attaches to ordinances, Reingold v. Harper, 6 N.J. 182, 196-197 (1951), granted the Borough summary judgment respecting these

claims. We conclude that matters of fact and opinion need to be established before these claims can be adjudicated.

I.

We will first discuss an unrelated claim raised by the borough clerk. By a resolution adopted in February 1986, the governing body appointed him to the additional office of borough administrator "for the year 1986." The governing body removed him from that office by a resolution adopted January 12, 1987. The clerk demands back pay and reinstatement to the office of administrator because the resolution removing him neither gave him three months' notice of his removal nor alternatively provided that he be paid his salary for three months following his removal as required by statute. The trial judge refused to order reinstatement but directed the Borough to pay the clerk his salary through April 12, 1987, three months after he was removed. We affirm that determination.

A municipal administrator serves "at the pleasure of the governing body," N.J.S.A. 40A:9-137, but may be removed only by at least a 2/3 vote. N.J.S.A. 40A:9-138 provides:

The municipal administrator may be removed by a 2/3 vote of the governing body. The resolution of removal shall become effective 3 months after its adoption by the governing body. The governing body may provide that the resolution shall have immediate effect; provided, however, that the governing body shall cause to be paid to the administrator forthwith any unpaid balance of his salary and his salary for the next 3 calendar months following adoption of the resolution.

Here the governing body apparently believed that by limiting the original appointment to "the year 1986," the same resolution by which he was appointed administrator gave the clerk more than three months' notice that he would be removed at the end of the year. However, the Borough does not advance that argument in this action. Rather, it contends that the removal was lawful because the resolution of removal was adopted by a 2/3 vote of the governing body. We agree.

The statutory requirement that when the removal is immediate "the governing body shall cause to be paid . . . his salary

for the next 3 months following adoption of the resolution" does not mean that the removal is invalidated if the resolution does not authorize payment of the additional salary. Nor is the removal later invalidated if the governing body does not cause the salary to be paid forthwith. The statute merely gives a former administrator a claim for payment of three months' salary following his immediate removal. Cf. Cabarle v. Governing Body of Tp. of Pemberton, 167 N.J. Super. 129 (Law Div.1979), aff'd o.b. 171 ...


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