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Geraghty v. Township of Berkeley Heights

Decided: March 19, 1990.

THOMAS J. GERAGHTY, JR., PLAINTIFF,
v.
THE TOWNSHIP OF BERKELEY HEIGHTS, JEFFREY W. MACCARELLI, DANIEL W. SEIB, JR., LILLIAN J. WEISGERBER AND ALBERT J. BOYANCE, DEFENDANTS



Beglin, A.j.s.c.

Beglin

Plaintiff Thomas J. Geraghty, Jr. appears to have begun his employment with defendant Township of Berkeley Heights in 1977 when he was appointed its part-time Treasurer and Assistant Tax Collector. Later in 1977, Mr. Geraghty was appointed acting Tax Collector and was reappointed to that position through 1978. He continued as part-time Treasurer until the position was abolished as of September 2, 1988. [Berkeley Heights is not a municipality in the classified service under Title 11A (civil service)].

On March 14, 1977, L. 1977, c. 39 took effect (N.J.S.A. 40A:9-140.7 et seq.). This statute provides that one "who shall have served as the municipal finance officer of any municipality (i.e., treasurer) . . . for a period of not less than five consecutive years and who is a holder of a municipal finance officer certificate . . . shall be granted tenure of office . . . and shall continue to hold office during good behavior . . ." N.J.S.A. 40A:9-140.8.*fn1

Mr. Geraghty was issued a Municipal Finance Officer Certificate by the Division of Local Government Services of the N.J. Department of Community Affairs on January 31, 1984, and on October 16, 1984 the Director of the Division congratulated him "on achieving tenure pursuant to 40A:9-140.8". He therefore claims the Township could not remove him from that position except for just cause and then only after a public hearing upon a written complaint. The Township, on the other hand, claims it could remove him in this fashion because he had not yet attained tenure as its Treasurer, urging that under the cited statute, tenure is not achieved until one serves in the position for five consecutive years after securing the Municipal Finance Officer Certificate. As that would not have occurred until

January 31, 1989, the Township asserts it was free to terminate plaintiff's employment as Treasurer, as it did in 1988.*fn2

The Bureau of Local Management Services of the Division had conducted a study at the request of the governing body and presented its recommendations in a Salary Survey and Classification Study dated April 1988. Among other things, it recommended creation of a full-time Tax Collector/Treasurer position. It appears that the tenured Tax Collector had retired June 30, 1987, and the incumbent Tax Collector resigned May 20, 1988. The result of all of this was the adoption of an ordinance on July 5, 1988 implementing the study's recommendation. It amended the Administrative Code, combining the two separate positions into a single Treasurer/Tax Collector position. By subsequent resolution, a full-time appointment was made to that position, thereby effectively terminating Mr. Geraghty's appointment as Treasurer on September 2, 1988.

Galfo v. Township of Rochelle Park, 166 N.J. Super. 117, 398 A.2d 1355 (Law Div.1979), aff'd. o.b. 173 N.J. Super. 234, 413 A.2d 995 (App.Div.1980) held that, for one to achieve tenure as a municipal finance officer, completion of the five consecutive years of service must occur after March 14, 1977, the effective date of N.J.S.A. 40A:9-140.8. As of September 2, 1988, Mr. Geraghty, -- although a certified Municipal Finance Officer, -- had not served five consecutive years as treasurer, since his certificate was issued on January 31, 1984. In Galfo, the plaintiff had completed only two consecutive years in office after receiving the required certificate before being replaced, and therefore was found not to have tenure in the position. Here, Mr. Geraghty had served over 11 consecutive years as Treasurer, which for all practical purposes were after N.J.S.A. 40A:9-140.8 took effect.

Is the date he obtained certification the starting date for measuring the five years of consecutive service? Galfo does not answer that question, nor does any other reported decision. Galfo recognized a legislative purpose of having "the five consecutive years of service necessary for tenure take place subsequent to the upgrading of requirements" for municipal finance officers. Id., at 121, 398 A.2d 1355. But here, Mr. Geraghty fulfilled all requirements and qualifications for certification in 1984, when he had already served over five consecutive years in the position. Nothing appears to be gained by requiring one such as plaintiff to serve another five consecutive years after receiving certification. The legislative intent of granting tenure to experienced and certified office holders already has been met. Certainly the 1977 statute should be given prospective effect as Galfo determined, but it should not be read so as to require five years of continuous experience in the position after receiving certification as the only way for a municipal treasurer to achieve tenure. Having fulfilled the requirement of serving as the Township's Treasurer for at least five consecutive years and becoming a certified municipal finance officer, Mr. Geraghty had achieved tenure during good behavior and efficiency by operation of law. The governing body therefore could not by its 1988 resolution appointing another, remove him from that office, since no complaint setting forth charges had been filed against him.*fn3

The Township argues, however, that it nevertheless had the power to create the single position of Treasurer/Tax Collector and in so doing abolish plaintiff's part-time position as Treasurer

whether or not he was tenured. Townships, pursuant to N.J.S.A. 40:145-12, are required to provide for a tax collector in the manner generally prescribed by law (see N.J.S.A. 40A:9-141 et seq.). The appointment and employment of a treasurer, however, is permissive. Although the same person may hold both offices, the duties, terms of office and tenure provisions differ. See generally, L. 1979, c. 384, N.J.S.A. 40A:9-141 et seq. Tax collectors collect taxes and if qualified are issued tax collector certificates by the Division of Local Finance. Treasurers are among those qualified to be classified ...


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