On appeal from Superior Court of New Jersey, Law Division, Sussex County.
Approved for Publication December 18, 1997.
Before Judges Petrella, Skillman and Eichen. The opinion of the court was delivered by Petrella, P.j.a.d.
The opinion of the court was delivered by: Petrella
The opinion of the court was delivered by
The issue on appeal involves the interpretation and application of N.J.S.A. 40A:9-148 to the appointment and filling of vacancies for the position of municipal tax assessor. Plaintiff Maureen Kaman appeals from an order of the Law Division dismissing her complaint with prejudice and denying her requested restraints against defendant Township of Montague (Township) and various township officials named as defendants (defendants), for terminating her as tax assessor.
The issues on appeal are whether: (1) Kaman should be considered to have been appointed tax assessor for a four year term from July 1994 until June 1998 because of the inaction of the Township in July 1994 in reappointing a new tax assessor; (2) the Director of the Division of Taxation (Director) has the sole authority to remove a tax assessor from office; (3) Kaman is entitled to back pay pursuant to N.J.S.A. 40A:9-172; and, (4) the court erred in dismissing the complaint's CEPA *fn1 allegation.
The background facts are necessary to understand the arguments of the parties. On March 24, 1981, the Township appointed Donald DeKorte as tax assessor "through the end of 1981." DeKorte served until his resignation on May 8, 1990. On June 12, 1990, Ed Nowicki was appointed tax assessor for a term ending June 30, 1994. However, Nowicki resigned in March, 1991, and Lowery McMillan was appointed as tax assessor. McMillan resigned in May 1992.
On July 31, 1992, the Township Committee appointed Kaman to replace McMillan, but the resolution stated that the appointment was "for the next four (4) years." Kaman functioned as tax assessor from July 1992 through March 1996 without incident. She asserts that the mayor and clerk advised her in late March 1996 that her appointment as tax assessor had been discussed at a meeting and she would be formally appointed to another four year term starting July 1, 1996.
On May 15, 1996, Kaman wrote a memorandum to the clerk describing an incident involving the clerk, planning board secretary and a resident of the town and instructed her secretary not to take messages for another secretary. Kaman contends that as a result of her memorandum, she was labeled a troublemaker and that this incident led directly to defendants' actions in removing her as the tax assessor.
Kaman wrote to the Township Committee on May 23, 1996, expressing her interest in being reappointed. On May 29, 1996, the Township Committee notified Kaman that they would be advertising the position. She interviewed for the position on June 20, 1996, and then apparently for the first time indicated to the Township that she believed her term expired on June 30, 1998 (four years after the date McMillan's term ended), rather than ending June 30, 1996, in accordance with the Township's original appointment.
On June 27, 1996, Kaman received a letter from the Township Committee notifying her that the governing body had decided not to reappoint her, and instead appointed Ben Murdoch as tax assessor.
Kaman now takes the position, as she did in the Law Division, that she was appointed to finish McMillan's term (which actually was Nowicki's four year term) ending on June 30, 1994. Kaman contends that because she continued in her duties as the tax assessor on and after July 1, 1994 and into 1996, she should be considered as having been appointed to a four year term on July 1, 1994, and running to June 30, 1998.
The trial Judge found that after July 1994 the Township did nothing because it was under the mistaken belief that Kaman's term did not end until June 30, 1996. The Judge concluded that Kaman continued in office in a "holdover" status and was not entitled to an automatic four year term by reason of her holding over. The Judge reasoned that a governing body has a right to decide whether to reappoint a person after her term has expired and did not lose that right because it made an honest mistake in calculating the term of office. The Judge acknowledged that in some situations such a "hold over" position could encourage political deal making and wrongdoing. However, he found no evidence of wrongdoing in not realizing Kaman's term should have expired or that the Township purposefully held over Kaman ...