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Voges v. Borough of Tinton Falls

Decided: November 15, 1993.


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

Long and Landau. The opinion of the court was delivered by Landau, J.A.D.


Plaintiff Gerd Voges appeals from a Judgement which dismissed his complaint in lieu of prerogative writs following a bench trial in the Law Division. Voges, employed as the Tinton Falls Plumbing Subcode Official, sought damages arising from allegedly improper reduction of his hours and salary to part-time status, and asserted civil rights claims under 42 U.S.C. § 1983 against the Borough of Tinton Falls (Borough); its Mayor and Council; Anthony Muscillo, the Borough Administrator; and Louis Raupp, the Construction Official (collectively "respondents").

Voges left a similar position in another municipality and on April 1, 1988, accepted appointment to a four-year term as the Borough's full-time plumbing subcode official. The appointment was made pursuant to the State Uniform Construction Code Act, N.J.S.A. 52:27D-119 to -141 (hereinafter U.C.C.A.). Voges worked 40 hours per week until 1989 when his work week was changed to 37 1/2 hours, and then again reduced in 1990 to 35 hours. Despite the reduction in hours, his initial $40,000.00 annual salary was increased by seven percent annually, commensurate with increases given to other Borough officials.

The plumbing subcode official is part of the Borough's Division of Code Enforcement. The Division is supposed to be self-funded by revenues generated from fees charged for inspections, permits, and plan reviews. Owing to an expected decline in construction activity, respondents reduced the Division's budget for 1991.

On December 17, 1990, appellant was notified, in writing, that his work hours would be reduced from thirty-five to twenty-one hours per week, effective January 1, 1991, with a corresponding salary reduction. The reduction was fixed at twenty-one hours per week in order that Voges, who had been ill, could retain his

health benefits. The work hours of the building subcode official and the electrical subcode official were reduced at that time. Later, the building inspector and one secretary were also reduced to part-time status. All of these jobs were part-time at the time of trial.

Voges demanded a hearing on the reduction of hours pursuant to N.J.S.A. 52:27D-126b. Although the Borough took the position that a hearing was not required under the U.C.C.A., Voges received an informal hearing before the Borough Administrator, respondent Anthony Muscillo, seven weeks after the reduction in his salary and hours. He objected to Muscillo acting as the hearing officer because Muscillo himself had made the decision to put appellant on part-time status. The informal hearing consisted of a private meeting between Voges and Muscillo, over Voges' objection that the hearing should be public. Muscillo rendered an opinion denying appellant's restoration to full-time service.

Voges then initiated this action, seeking restoration to full-time status, retroactive back pay, compensatory and punitive damages for violations of 42 U.S.C. § 1983, as well as attorneys fees pursuant to 42 U.S.C. § 1988.

The trial Judge found, as a matter of law, that N.J.S.A. 52:27D-126b does not afford appellant protection from a reduction in hours and compensation, because it speaks only to "removal" from office and not to reductions in compensation. The Judge also found as a fact that the Borough reduced appellant's hours and salary in good faith and for economic reasons. Accordingly, he ruled that a predetermination hearing was not required before the decision to reduce appellant's hours and compensation became effective, and dismissed Voges' complaint.

Upon careful study of the record, in light of the arguments raised by appellant, we affirm dismissal of the complaint, but for different reasons than those cited by the trial Judge.

This case raises the novel question whether N.J.S.A. 52-27D-126b affords to a person appointed to a four year term as a full-time

employee protection from a reduction in his salary and work hours during that term. We hold that it does, except if the reduction is shown to be attributable to a good faith effort to cut ...

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