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Merlino v. Borough of Midland Park

March 27, 2001

ANTHONY MERLINO, PLAINTIFF-APPELLANT,
v.
BOROUGH OF MIDLAND PARK, MAYOR AND COUNCIL OF THE BOROUGH OF MIDLAND PARK, MICHELLE F. DUGAN, AND DAVID HEEREMA, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County, L-6497-98.

Before Judges Pressler, Kestin and Alley.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 27, 2001

Plaintiff appeals from a judgment in favor of defendants entered after a bench trial. Plaintiff seeks to be restored to his position as municipal construction official, building sub-code official and building inspector, with back pay, retroactive benefits, damages, and attorneys fees. He has pled his claims based on State and federal statutes and pursuant to a theory of breach of employment contract.

Plaintiff was appointed to the position in 1990 for an initial four-year term expiring on June 3, 1994. As the expiration date neared, plaintiff inquired about reappointment. By operation of statute, reappointment to a second consecutive term conferred tenure:

A construction official or subcode official in a non-civil 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, . . . be granted tenure and shall not be removed from office except for just cause after a fair and impartial hearing. [N.J.S.A. 52:27D-126b.]

Plaintiff learned eventually there was a difference of view among the mayor and council as to whether, based upon his performance during the initial term, he merited reappointment. A compromise was proposed in lieu of an up-or-down vote with the design of granting plaintiff a second term without the conferral of tenure: he would resign effective June 3, 1994, and be reappointed to a new four-year term commencing June 13, 1994. Plaintiff agreed to this plan and it was effected.

In May 1998, as expiration of that second term impended, the municipal council voted not to renew plaintiff's appointment. This civil action followed in which plaintiff claimed he was entitled to the benefit of the statute's tenure provision as a matter of public policy despite the understanding he had reached with the mayor and council in 1994. He also contended that he had been under duress to agree to the compromise plan.

The trial judge found it undisputed that the 1998 non- reappointment was accomplished without any of the protections afforded a tenured employee, i.e., adequate notice of formal charges, a hearing, and a determination that there was just cause for removal. In his oral opinion, the judge analyzed what had occurred in 1994, stating:

The governing body suggested this plan, it gave the plaintiff the primary relief that he wanted, that was reappointment. If his primary relief was tenure then shame on the plaintiff for having that hidden agenda. But the governing body's plan was unmistakable in what it would do; . . . its intent was to deprive the plaintiff of obtaining tenure at that time. But he received a valuable appointment in exchange therefor, he was given a second chance.

And in light of what was happening . . . I do not find that Mr. Merlino's will was overborne, that undue or unfair pressure was brought to bear. This was in some respects a settlement of a risk, the risk being that the governing body would vote in the absence of the plan and vote not to reappoint. Plaintiff obtained a certainty; he was aware he was obtaining the certainty, he obtained what he set out to obtain that night, there was no coercion, there was no duress . . . .

[P]laintiff could have at any time said I do not go along with the plan and let's see where the votes fall. [It may] have turned out the way Mr. Merlino wanted plus, the plus being he would have been reappointed without a break in service and he would have had tenure. But nobody could have known that and there is nothing inappropriate about one hedging one's bet, one vouching for a sure thing rather than casting the die.

The judge concluded that plaintiff "did not have tenure in May and June 1998, and the discretionary decision of the governing body not to reappoint him was not arbitrary, capricious or unreasonable, was not violative of either the State Uniform Construction Code Act, its regulations," or any other provisions of law. Based on these determinations, judgment was entered for ...


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