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Viviani v. Borough of Bogota

February 07, 2001

DONALD G. VIVIANI,
PLAINTIFF-RESPONDENT,
V.
BOROUGH OF BOGOTA,
DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey Law Division, Bergen County, L-5811- 96.

Before Judges Wallace, Jr., Carchman and Lintner.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 20, 2000

The central issue raised by this appeal is whether the provisions of the Exempt Firemen's Tenure Act, N.J.S.A. 40A:14-60 to -65 (the Act), prevents a municipality from a good faith elimination of a position, held by an employee occupying exempt fireman status, for valid cost reduction reasons. Judge Harris held that N.J.S.A. 40A:14-65 prevents municipalities from abolishing positions held by exempt firemen in all circumstances except "widespread economic depression or mandatory retrenchment." We agree and affirm.

The undisputed facts are as follows. Plaintiff joined defendant's volunteer fire department in 1968 and received a certificate of exemption pursuant to N.J.S.A. 40A:14-55 to -59 in 1977. In 1990, defendant adopted an ordinance appointing plaintiff to a full time position of laborer in defendant's Department of Public Works (DPW). For many years prior to his appointment, plaintiff had served as a temporary seasonal laborer. In 1991, the DPW was comprised of eighteen employees headed by a superintendent and a foreman. In an effort to avoid having to pay overtime to the foreman, who was a member of the collective bargaining unit, defendant's mayor and council created, by ordinance, a new salaried position of Assistant Superintendent. Plaintiff was appointed to the position of Assistant Superintendent in April 1992.

Between 1992 and 1996, defendant reduced its DPW workforce from eighteen to nine. In 1994, defendant decided to reduce the costs associated with the DPW by privatizing its trash collection and recycling functions, leaving the department responsible for maintenance and repair of defendant's roads, buildings, sewers, parks and other public areas. In January 1996, a new mayor and council majority took office finding itself faced with what defendant described as a double-edged hardship. The previous administration had increased defendant's operating budget each year from 1988 to 1995. In 1996, defendant faced an immediate cut of $187,000 and future phase-out in Density Aid, a State program that had been instituted in 1991, which provided revenue to densely-populated municipalities. Defendant undertook a systematic review of all its spending, which resulted in reductions in spending commencing in 1996 and continuing each year into 1999. As part of its efforts to reduce spending, the Mayor and Council adopted Ordinance No. 1115 (the Ordinance) on March 1, 1996, eliminating plaintiff's position of Assistant Superintendent of the DPW.(*fn1) Because of plaintiff's position in seniority, he remained on the work force as a laborer after the abolishment of his supervisory position.

On June 19, 1996, plaintiff filed an Order to Show Cause and Verified Complaint in Lieu of Prerogative Writ seeking injunctive relief restraining defendant from enforcing the Ordinance, and reinstating plaintiff's position and salary. The complaint alleged that defendant violated (1) his tenure rights as an exempt fireman by adopting the Ordinance and abolishing the position of Assistant Superintendent of Public Works and (2) his rights under the New Jersey Law Against Discrimination.

Injunctive relief was denied. Thereafter, the New Jersey Exempt Firemen's Association was granted leave to participate as Amicus Curiae. A subsequent motion for summary judgment filed by defendant seeking to dismiss plaintiff's complaint as time barred, pursuant to R. 4:69, was denied. Plaintiff abandoned his constitutional and LAD based claims and a bench trial, limited to plaintiff's claim that defendant's adoption of the Ordinance was in violation of the Act, commenced before Judge Harris.

Judge Harris found that defendant was precluded by N.J.S.A. 40A:14-65 from abolishing plaintiff's position as Assistant Superintendent for good faith economic reasons. Defendant raises essentially three issues on appeal:

POINT I - THE TRIAL JUDGE ERRED WHEN HE FOUND THAT DEFENDANT'S GOOD FAITH ADOPTION OF THE ORDINANCE ELIMINATING AN UNNECESSARY OFFICE VIOLATED PLAINTIFF'S TENURE RIGHTS AS AN EXEMPT FIREMAN.

POINT II - THE TRIAL JUDGE'S INTERPRETATION OF N.J.S.A. 40A:14-65 VIOLATED THE NEW JERSEY CONSTITUTION BY EITHER CREATING A GIFT OF PUBLIC FUNDS OR CONSTITUTING SPECIAL LEGISLATION.

POINT III - THE MOTION JUDGE ERRED IN REFUSING TO DISMISS PLAINTIFF'S COMPLAINT AS TIME-BARRED PURSUANT TO R. 4:69-6(A).

We reject defendant's contentions and affirm. We agree with the conclusions reached by Judge Harris that, after tracing the evolution of N.J.S.A. 40A:14-65, the legislative purpose was to avoid the pre-1938 case law that construed the 1911 version of the Act to permit the discharge of exempt firemen employees for good faith reasons of economy.

Originating in 1911, the Act bestowed tenure on public employees who were exempt volunteer firemen, conferring upon them the right to retain their jobs during good behavior subject to removal only for good cause and after a hearing. L. 1911, c. 212, ยง 1. The law forbade removals "for political reasons." ...


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