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Cutler v. Borough of Westwood

November 27, 1996

CHARLES CUTLER, PLAINTIFF-APPELLANT,
v.
BOROUGH OF WESTWOOD, MAYOR AND COUNCIL OF THE BOROUGH OF WESTWOOD, DONALD RAINEY, ADMINISTRATOR FOR THE BOROUGH OF WESTWOOD, GEORGE LUCIA, ACTING BUILDING SUBCODE OFFICIAL, CONSTRUCTION OFFICIAL AND BUILDING INSPECTOR, DEFENDANTS-RESPONDENTS.



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

Approved for Publication December 6, 1996.

Before Judges King, Conley and Loftus. The opinion of the court was delivered by King, P.j.a.d.

The opinion of the court was delivered by: King

The opinion of the court was delivered by

KING, P.J.A.D.

In this case appellant Charles Cutler claims that the Law Division Judge erred in denying him tenure as a construction code official of the Borough of Westwood under N.J.S.A. 52:27D-126. We find no error and affirm.

Cutler was appointed to serve a four-year term as "Construction Official/Building Sub-Code/Building Inspector" for the Borough of Westwood, a non-civil service municipality, effective March 4, 1991. The term expired on March 3, 1995. Cutler continued to perform his duties for eleven days after his term expired. There is no indication that he was working during these eleven days with the knowledge or acquiescence of the municipality. On March 14, 1995, at the first meeting following the expiration of Cutler's term, the Mayor and Council of the Borough of Westwood resolved not to reappoint him for a second term. The Council desired to eliminate the position and enter into an interlocal agreement with a neighboring community.

Cutler filed a complaint in lieu of prerogative writs against the Borough of Westwood and its mayor, council, and certain officials (Westwood) on March 24, 1995. Injunctive relief was denied on March 30. Cutler urged he had earned tenure pursuant to N.J.S.A. 52:27D-126(b) and could not be "removed from office except for just cause after a fair and impartial hearing." Judge Simon heard the matter on October 6 and 12, 1995. She held that Cutler was not entitled to tenure under the statute and entered judgment in favor of Westwood.

The basic issue in this case is whether Cutler achieved tenure pursuant to N.J.S.A. 52:27D-126(b). If he did, then he could not be removed from office without a hearing. If he did not, then Westwood acted within its authority in not reappointing him. N.J.S.A. 52:27D-126(b) provides, in pertinent part:

A construction official or subcode official in a noncivil service municipality shall be appointed for a term of 4 years and shall, upon appointment to a second consecutive term or on or after the commencement of a fifth consecutive year of service, including years of service in an equivalent job title held prior to the adoption of the State Uniform Construction Code , be granted tenure and shall not be removed from office except for just cause after a fair and impartial hearing.

The dispute in this case concerns the meaning of "on or after the commencement of a fifth consecutive year of service." There is no judicial precedent which interprets this section of the statute. Both parties assert that the meaning of the provision is clear and unambiguous.

Judge Simon accepted Westwood's position, explaining:

In short, this case revolves upon interpretation of the statute in question. This court agrees with the statutory interpretation suggested by defendant municipality in its trial brief. There is some ambiguity in the language. However, the legislative history makes it clear that the alternative language was drafted to cover those "grandfathered" in prior to SUCC and those in civil service municipalities. It might be noted that the legislature has in certain instances imposed an affirmative obligation upon municipal agencies to act. For example, in a land use context, rights are conferred upon an applicant where a municipality fails to act within the statutory period. See e.g. N.J.S.A. 40:55D-76. It is logical to infer that in the statute in question there would be some specific provision alerting the municipality to the risks of inaction. This court cannot accept plaintiff's proposed interpretation which would confer tenure upon a technicality.

Westwood argues that the provision in question grants tenure in two circumstances: (1) when an official originally appointed under the SUCC is appointed to a second consecutive term, or (2) when an official who had been doing a job equivalent to a construction official or subcode official, only some period of which was under the SUCC, begins a fifth consecutive year. Cutler does not fit into ...


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