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Cole v. Township of Roxbury

Decided: June 16, 1992.

CECILE E. COLE AND DAVID A. COLE, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF ROXBURY, MORRIS COUNTY, THE MAYOR AND COUNCIL OF THE TOWNSHIP OF ROXBURY, JAMES ZOUVELEKIS, INDIVIDUALLY AND AS MUNICIPAL MANAGER OF THE TOWNSHIP OF ROXBURY, HENRY CROUSE, GEORGE POLICASTRO, CHUCK DAWSON AND ANTHONY POLLARD, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Morris County.

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

Pressler

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

Plaintiff Cecile E. Cole, whose husband David A. Cole sued per quod, filed this complaint against the Township of Roxbury, its municipal manager, mayor, and council members seeking, on a variety of theories, both compensatory and punitive damages for her alleged wrongful discharge in June 1988 from her position as the township's chief financial officer. Among her claims was the contention that having achieved tenure pursuant to N.J.S.A. 40A:9-140.8, she was subject to termination only for good cause established at a proper hearing. Since the township had ultimately denied her tenured status, that issue was bifurcated and separately tried. Following trial, the court concluded that plaintiff had failed to acquire tenure under the statute. It also then dismissed her remaining counts. She appeals. We reverse.

We consider the facts and the trial Judge's findings in the light of the applicable statute. N.J.S.A. 40A:9-140.8, as adopted by L. 1977, c. 39, § 2,*fn1 provides in full as follows:

Notwithstanding the provisions of any other law to the contrary, every person who shall have served as the municipal finance officer of any municipality in this State, except any municipality having adopted any of the plans under articles 7 (Major Council Plan E) and 8 (Major Council Plan F) of the "Optional Municipal Charter Law," P.L.1950, c. 210 (C. 40:69A-68 through 80), for a period of not less than 5 consecutive years and who is a holder of a municipal finance officer certificate issued in accordance with P.L.1971, c. 413 (C. 40A:9-140.1 et seq.), shall be granted tenure of office upon filing with the clerk of the municipality and with the Division of Local Government Services in the Department of Community Affairs a notification evidencing his compliance with this section, and shall continue to hold office during good behavior and efficiency, and shall not be removed therefrom except for just cause and then only after a public hearing upon a written complaint setting forth the charge or charges against him pursuant to section 3 of this act [footnote omitted] or upon revocation of certification by the director of the Division of Local Government Services pursuant to section 5 of P.L.1971, c. 413 (C. 40A:9-140.5).

The statute thus prescribes three conditions for achieving tenure in the office of municipal finance officer. First is service in that position for a period of not less than five consecutive years. Second is the obtaining of the requisite municipal finance officer certificate from the Division of Local Government Services (Division). Third is the filing with the municipal clerk and the Division of "a notification evidencing . . . compliance" with the first two requirements. Plaintiff claimed to have met all three conditions. Defendants denied that she had met any. The trial Judge concluded that she had met only the first two and not the third. While we are in full concurrence with the trial Judge's findings and Conclusions as to the first two conditions, we disagree with his findings and Conclusions as to the third.

According to the record, plaintiff was first employed by the township in 1970 and worked for it continuously until her firing in June 1988. She claims to have acted as chief financial officer since 1977. Because of what the trial Judge described as the disarrayed and apparently inadequate state of the records of municipal action over the years, he was only able to conclude that plaintiff had served as chief financial officer continuously since 1979. He did not find that she had not so served in 1977 and 1978 but only that the state of the municipal records did not permit him affirmatively to find that she had. We are in complete agreement with the trial Judge's Conclusions as to the period of 1979 forward. The record permits no other Conclusion than that plaintiff had so served under color of right to the office, that her service was regularly acknowledged in a myriad of ways by the municipality and its officials, and that it was she alone who had signed all municipal documents required to be filed with the Division by the chief financial officer. Consequently, by the middle of 1988 she had over nine years of such continuous service.

It is also not disputed that plaintiff was accorded the requisite certificate by the Division in January 1987. The township, however, relying on 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), asserted that her acquisition of the certificate on that date was insufficient to meet the statutory requirement. It argued that the statute must be read to require that the officer must have held the certificate at least for the minimum five-year period relied on for tenure. We agree with the trial Judge's rejection of this contention. The issue in Galfo was not, as here, whether the claimant was required to be certified during the entire five-year period of service. There the office holder had served for five consecutive years from January 1, ...


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