On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-1628-98.
Before Judges Skillman, Conley and Lesemann.
The opinion of the court was delivered by: Conley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiffs appeal a final judgment entered July 8, 1999, dismissing their complaint seeking reinstatement to their abolished municipal positions pursuant to N.J.S.A. 40A:14-64 and -65 based upon their status as "tenured exempt firemen." We affirm.
Plaintiff Raymond R. Roe possesses a "Certificate of Exemption" as a result of his service as a firefighter with the Mahwah Fire Department from August 1971 to December 1978. Plaintiff Harry D. Hansen, similarly, possesses a "Certificate of Exemption" as a result of his service as a firefighter with the Ridgefield Park Fire Department from August 1962 to August 1969. See N.J.S.A. 40A:14-56, -59. Both plaintiffs, subsequent to obtaining their certificates, were employed by defendant Upper Saddle River; Roe as a fire subcode official and Hansen as a plumbing subcode official.(*fn1) Each had occupied their respective positions for more than three consecutive years and, thus, possessed tenure in those positions pursuant to N.J.S.A. 40A:14-64.(*fn2)
In January 1998, Upper Saddle River entered into an Interlocal Agreement with Hillsdale, pursuant to the Interlocal Services Act, N.J.S.A. 40:8A-1 to -11, for the provision of construction code services through the Hillsdale Construction Code Office. One of the effects of this governmental action was the abolishment of plaintiffs' positions.(*fn3) In the ensuing litigation that has generated this appeal, plaintiffs, as well as amicus, contend the abolition of their positions was violative of the tenure protections accorded them under the Exempt Firemen's Tenure Act, N.J.S.A. 40A:14-60 to -65, specifically N.J.S.A. 40A:14-65.
Based upon the evidence presented during the non-jury trial, Judge Lawrence D. Smith concluded that Upper Saddle River's actions were entirely motivated by concerns for economy and efficiency and that plaintiffs' loss of their positions was an unfortunate by-product of good faith governmental action. He found no malice or personal animus towards either plaintiff. Most importantly, he found that the governmental actions challenged by plaintiffs were not taken for the purpose of terminating their services. In this respect, the judge concluded:
[P]laintiffs' positions with the Borough were not abolished and plaintiffs' employment were not terminated for any reasons related to plaintiffs themselves or their performance. Plaintiffs were not terminated by Upper Saddle River based on the thought that their salary could be avoided. They were not terminated for any reasons that focused on them as individuals. In fact, the Town was quite pleased with their services, although there may have been a few minor complaints. . . .
These findings are clearly supported by the record; indeed they are not disputed by plaintiffs. Rather plaintiffs and amicus focus upon N.J.S.A. 40A:14-65 which provides:
No department of the State government, nor any board of chosen freeholders of a county, governing body of a municipality or board of education shall abolish, change the title or reduce the emoluments of any office held by an exempt fireman having tenure therein, for economy reasons or otherwise, for the purpose of terminating his services, except in time of widespread economic depression or mandatory retrenchment, but in any such case, the termination or reduction shall be made in the same ratio as in the case of other employees. [Emphasis added.]
It is the emphasized language upon which plaintiffs and the amicus rely. It is agreed that neither "widespread economic depression" nor "mandatory retrenchment" existed here. They, therefore, read N.J.S.A. 40A:14-65 to preclude the abolition of plaintiffs' positions by virtue of the language "[n]o . . . governing body of a municipality . . . shall abolish . . . any office held by an exempt fireman having tenure therein . . . except in time of widespread economic depression or mandatory retrenchment." This reading of subsection 65, of course, ignores the phrase which immediately precedes the reference to economic depression and which states "for the purpose of terminating his service."
Acts such as the Exempt Firemen's Tenure Act, and its counterpart for war veterans, the Veterans' Tenure Act, N.J.S.A. 38:16-1 to -6, are designed "to remove governmental employees from the shifting political currents in order to . . . protect those who also give additional service without compensation to their communities." Smith v. Board of Chosen Freeholders of County of Bergen, 139 N.J. Super. 229, 238 (Law Div. 1976), aff'd, 146 N.J. Super. 45 (App. Div.), certif. denied, 74 N.J. 266 (1977). It has consistently been recognized, however, that governmental bodies "acting in good faith and in the public interest, ha[ve] the power to abolish . . . offices . . . [This] is too firmly settled to admit of doubt." Doyle v. Town of Secaucus, 10 N.J. Misc. 334, 335 (Sup. Ct. 1932), aff'd, 110 N.J.L. 62 (E. & A. 1933). See Reck v. Board of Comm'rs of N. Bergen, 110 N.J.L. 173, 177 (E. & A. 1933); Geraghty v. Township of Berkeley Heights, 259 N.J. Super. 350, 357 (Law Div. 1990), aff'd, 259 N.J. Super. 327 (App. Div. 1992). Cf. Miskowitz v. Union County Util. Auth., ___ N.J. Super. ___, ___ (App. Div. 2001) (slip op. at 18-19).
For as long as the Exempt Firemen's Tenure Act in its various forms has been in effect, the protections accorded thereunder have never been applied to prevent a bona fide, good faith governmental action, the coincidental effect of which may be the abolition of a position held by an exempt fireman who otherwise would be protected from termination. That is to say, the long-standing and consistent enforcement of the protections accorded by the various provisions of the Exempt Firemen's Tenure Act has always been in the context of governmental action ostensibly labeled for economy or other good faith basis but which, in fact, has been aimed at removing the exempt fireman or ...