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Keuerleber v. Township of Pemberton

Decided: November 24, 1992.

DEBORAH KEUERLEBER, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF PEMBERTON, MAYOR THAILA C. KAY, AND BETTY STOVER, DEFENDANTS-RESPONDENTS



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

J.h. Coleman and Shebell. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.

Coleman

The core question raised in this appeal is whether a nontenured tax collector is entitled to remain in office for the remainder of his or her term of office following a change in the plan of the municipality's government. The Law Division held that such a tax collector's term of office expired the day the new form of government became effective. We agree and affirm.

The operative facts are not disputed. On July 30, 1987, the Pemberton Township Committee appointed plaintiff Deborah L. Keuerleber to the position of Municipal Tax Collector for a term to expire December 31, 1991. See N.J.S.A. 40A:9-142. In November 1990, the voters of the township decided, pursuant to N.J.S.A. 40:69A-22, that the Township Committee plan of government should be changed to the Mayor-Council Plan of government under the Faulkner Act. See N.J.S.A. 40:69A:13 and 18. The Mayor-Council plan of government became operational at 12:00 noon on January 1, 1991.

During the first meeting of the newly formed plan of government, conducted the afternoon of January 1, 1991, the municipality established certain offices, including that of the tax collector. The council under the new plan of government adopted a resolution appointing defendant Betty Stover as the new tax collector, for a four year term, effective immediately.

Although plaintiff had been appointed by the governing body under the old plan of government, she never acquired tenure, and her position falls under the municipality's unclassified services. See N.J.S.A. 11A:3-5.

On January 22, 1991, plaintiff filed a complaint seeking back pay and reinstatement as tax collector until her term expired on December 31, 1991. Cross-motions for summary judgment were argued on September 26, 1991. The Judge granted summary judgment to the defendants. He reasoned that there is no conflict between the Faulkner Act, N.J.S.A. 40:69A-207, which is special legislation, and the general law contained in N.J.S.A. 40A:9-141 and 142. He held that the Faulkner Act established the procedural mechanism for changing from one plan of government to another and described the consequences of such a change. Under that theory, he found N.J.S.A. 40A:9-141 and 142 simply mandate that the office of tax collector is one of the positions a municipality must have irrespective of the plan of government, and that the term of that office must be for four years.

In this appeal, plaintiff contends that when a municipality adopts "a new form of government under N.J.S.A. 40:69A-1 et seq., the unexpired term of the municipal tax collector does not come to an end and the office does not become vacant." She argues that there is a conflict between a provision of the Faulkner Act, N.J.S.A. 40:69A-207, and the provisions of the general law, N.J.S.A. 40A:9-141 and 142. She asserts that where such a conflict exists, the general law must prevail. We reject plaintiff's assertion that there is a conflict between the controlling statutes.

The Faulkner Act was enacted to present New Jersey's municipalities with various optional methods of organizing their local governments. The act was intended to confer upon the municipalities the greatest possible powers of local self-government and home rule consistent with the Constitution of this State. See N.J.S.A. 40:69A-30; Local Self-Government in

New Jersey: A Proposed Optional Charter Plan. Final Report of the Commission on Municipal Government, at x to xi (1949); Myers v. Cedar Grove Township, 36 N.J. 51, 57, 174 A.2d 890 (1961).

When defendant municipality changed from the Township Committee plan of government to the Mayor-Council plan, certain provisions in the Faulkner Act designed to facilitate the transition from the old to the new were triggered. In that vein, the Faulkner Act, N.J.S.A. 40:69A-26, provides that once the new plan of government has been adopted, "the municipality shall thereafter be governed by the plan adopted, by the provisions of this Act [ N.J.S.A. 40:69A-1 to 40:69A-210] common to optional plans and by all applicable provisions of general law, subject to the transitional ...


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