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Miskowitz v. Union County Utilities Authority

January 05, 2001

LOIS MISKOWITZ,
PLAINTIFF-APPELLANT
V.
UNION COUNTY UTILITIES AUTHORITY,
DEFENDANT-RESPONDENT.
HARRY P. PAPPAS, A-1342-99T2
PLAINTIFF-APPELLANT
V.
UNION COUNTY UTILITIES AUTHORITY,
A PUBLIC BODY CORPORATE AND POLITIC
OF THE STATE OF NEW JERSEY; JAMES
KENNEDY, AS CHAIRMAN OF THE UNION
COUNTY UTILITIES AUTHORITY AND IN
HIS INDIVIDUAL CAPACITY; EDWARD
JACKUS, RICHMOND LAPOLLA, JOHN G.
KULISH, WILLIAM WOLF, AS COMMISSIONERS
OF THE UNION COUNTY UTILITIES
AUTHORITY AND IN THEIR INDIVIDUAL
CAPACITIES; COUNTY OF UNION; MICHAEL
LAPOLLA, AS COUNTY MANAGER OF UNION
COUNTY AND IN HIS INDIVIDUAL CAPACITY;
AND LAWRENCE M. CAROSELLI, AS
DIRECTOR OF FINANCE OF UNION COUNTY
AND IN HIS INDIVIDUAL CAPACITY,
DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Union County, L-3090-98 and L-3291-98.

Before Judges Baime, Wallace, Jr. and Lintner.

The opinion of the court was delivered by: Baime, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 29, 2000

Plaintiffs Harry Pappas and Lois Miskowitz appeal from a summary judgment dismissing their complaints against the Union County Utilities Authority (UCUA), its individual members, and other public officers. At issue is whether the UCUA acted lawfully in terminating plaintiffs' fixed term employment contracts as part of a restructuring to meet the fiscal crisis prompted by federal decisions declaring unconstitutional New Jersey's solid waste flow orders. We hold that the UCUA's decision was incidental to the exercise of its statutory powers, and that plaintiffs' complaints were properly dismissed.

I.

The UCUA administers Union County's solid waste management system. The system includes a resource recovery facility owned by the UCUA and operated by Ogden Martin Systems of Union, Inc., an ash residue disposal landfill owned by Empire Sanitary Landfill, Inc., and a countywide recycling program.

In 1988, the UCUA hired Miskowitz as a bookkeeper. She was promoted to assistant comptroller in 1994. As assistant comptroller, Miskowitz's duties included billing hauler and municipal accounts, scheduling maintenance on UCUA's vehicles, keeping employee attendance records and supervising assistants.

In 1996, the UCUA appointed Pappas to the position of deputy executive director. His duties included assisting the executive director in day-to-day operations, serving as acting executive director in his absence, attending meetings, dealing with vendors and consultants, overseeing bid specifications and invoices, and acting as liaison with UCUA commissioners and representatives of local governments.

Both Miskowitz and Pappas were given five-year contracts. Miskowitz's contract ran from March 9, 1994 to March 8, 1999. Pappas' contract was to run from January 2, 1997 to January 1, 2002. As we will note more fully later in our opinion, these contracts were inartfully drafted. Read literally, the agreements purport to guarantee that the plaintiffs' respective positions would not be abolished, and their duties would not be altered during the five-year fixed terms, at least in the absence of some act of misfeasance.

The operative contractual language in Miskowitz's employment agreement reads as follows:

Termination - EMPLOYER shall not abolish or alter EMPLOYEE's position or duties and EMPLOYEE shall not be discharged, disciplined, reprimanded, reduced in status, rank, or compensation, or deprived of any professional or employment advantage, or given any adverse evaluation of her[/his] performance without just cause.

The termination of the EMPLOYEE's employment shall be deemed to have been for "Cause" if termination of her[/his] employment shall have been the result of:

(i) an act or acts of dishonesty on the part of the EMPLOYEE constituting a felony or resulting or intended to result directly or indirectly in gains or personal ...


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