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Viviani v. Rogough of Bogota

February 25, 2002

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



ON APPEAL FROM On certification to the Superior Court, Appellate Division, whose opinion is reported at 336 N.J. Super. 578 (2001).

The opinion of the court was delivered by: Per Curiam

Chief Justice Poritz PRESIDING

DISSENTING OPINIONS BY Justices Verniero and Zazzali

Argued January 2, 2002

In a published opinion the Appellate Division concluded that provisions of the Exempt Firemen's Tenure Act, N.J.S.A. 40A:14-60 to -65 (Act), precluded the Borough of Bogota from abolishing plaintiff's position as Assistant Superintendent of the Department of Public Works (DPW) for good faith economic reasons unrelated to plaintiff or the quality of his performance. Viviani v. Borough of Bogota, 336 N.J. Super. 578, 583 (2001). A different panel of the Appellate Division has construed the Act differently, concluding that it does not prohibit a public entity subject to its provisions from abolishing a position or office held by an exempt fireman for good faith economic reasons. Roe v. Borough of Upper Saddle River, 336 N.J. Super. 566, 573-75 (2001). Although we acknowledge that plausible arguments can be advanced to support either interpretation of the Act, we are thoroughly persuaded that the analysis set forth in Roe more accurately reflects the underlying legislative purpose. Accordingly, we reverse the judgment of the Appellate Division and remand the matter to the Law Division for further proceedings consistent with that disposition.

We add only these additional observations. Our dissenting colleagues express the concern that the construction of the Act we adopt will invite litigation focused on discerning the true intent of the public entity. Post at ___ (slip op. at 4) (Verniero, J., dissenting); post at ___ (slip op. at 3)(Zazzali, J., dissenting). Although we agree that cases will arise in which the public entity's actual intent in abolishing a position may be contested, we disagree that pretextual reasons for such action will be difficult to identify and refute. The record before us, however, reflects no such issue.

It reveals that between 1992, the year plaintiff was appointed Assistant Superintendent, and 1996, the Borough reduced the number of DPW workers from eighteen to nine. That work force reduction was largely attributable to the Borough's 1994 decision to transfer the DPW's trash collection and recycling responsibility to private companies. Moreover, in 1996 the Borough faced a budget shortfall of approximately $300,000 that was attributable in part to excessive expenditures during the prior year as well as an anticipated reduction in state aid of approximately $187,000. The enactment of an ordinance eliminating plaintiff's position reflected the Borough's determination to reduce unnecessary expenditures in order to reduce the anticipated budget deficit. Accordingly, this record indicates that the Borough abolished the position of DPW Assistant Superintendent for good faith economic reasons, and not for the purpose of terminating plaintiff's services. Although no longer in a supervisory capacity, plaintiff remains a member of the Borough's DPW work force.

Reversed and remanded.

CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, and LaVECCHIA join in this opinion. JUSTICE VERNIERO filed a separate dissenting opinion in which JUSTICES LONG and ZAZZALI join.

VERNIERO, J., dissenting.

This appeal centers on N.J.S.A. 40A:14-65, which protects the holder of an exempt firefighter's certificate (certificate) from a change in job title or reduction in emoluments except in certain circumstances. The Borough of Bogota (Borough) eliminated plaintiff's position in one of its departments, but continued to employ him in a lower-paid position. The Borough's asserted reason for that action was to save money in the face of reductions in State aid. Viviani v. Borough of Bogota, 336 N.J. Super. 578, 582 (App. Div. 2001).

As a certificate holder, plaintiff claimed before the trial court that his tenure rights had been violated by the change in position and salary. The trial court and the Appellate Division agreed. Id. at 583. I would affirm the judgment of the Appellate Division substantially for the reasons expressed in Judge Lintner's comprehensive and persuasive opinion. Id. at 583-92.

The statute 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 a widespread economic depression or mandatory retrenchment, but in any such case, the ...


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