On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-326-08.
The opinion of the court was delivered by: Gilroy, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Simonelli.
Defendant, City of Hackensack (City), appeals from that part of the April 25, 2008 order granting partial summary judgment to its tax assessor, plaintiff Arthur Carlson, determining the City had wrongfully reduced plaintiff's salary. The City also appeals from a second order of the same date denying its cross-motion for partial summary judgment.
The issue presented on appeal is whether a municipality is permitted to reduce the salary of its tax assessor during his or her term of office if the municipality also reduces the assessor's weekly work hours commensurate with the salary reduction. We answer the question in the negative and affirm.
The City first employed plaintiff as a full-time tax assessor in 1992. The City reappointed plaintiff in 1997 giving him tenure in that office, pursuant to N.J.S.A. 54:1-35.31(1). He continues to hold that position. Effective January 1, 2008, the City reduced plaintiff's employment from full time (35 hours per week) to part time (15 hours per week); reduced his salary from approximately $107,000 ($111,613 with longevity) to $44,288 ($47,837 with longevity) per annum; and eliminated his health benefits because he was no longer a full-time employee.
On January 11, 2008, plaintiff filed a complaint in lieu of prerogative writs, seeking an order declaring that the City's action: in reducing his salary and eliminating his health benefits was unlawful, contrary to N.J.S.A. 40A:9-146 (count one); in reducing his salary was unlawful, contrary to N.J.S.A. 40A:9-165 (count two); and in reducing his salary and eliminating his health benefits was unlawful, contrary to N.J.S.A. 40A:9-146.4, (count three). On February 25, 2008, plaintiff filed a motion seeking partial summary judgment on count two. The City filed a cross-motion for partial summary judgment on the same count.
On April 25, 2008, the trial court entered an order, supported by an oral decision that: granted plaintiff's motion determining that the City's action in reducing plaintiff's salary violated N.J.S.A. 40A:9-165; awarded plaintiff back pay from January 1, 2008; and enjoined the City from reducing plaintiff's 2007 salary of $111,613 during his term as tax assessor. In so doing, Judge Harris reasoned that the unambiguous proscription contained in N.J.S.A. 40A:9-165 prohibits a municipality from reducing its tax assessor's salary during the term of his or her office. On the same day, the court entered an order denying defendant's cross-motion.
On December 26, 2008, plaintiff voluntarily dismissed count three of his complaint. On January 23, 2009, the court granted plaintiff's unopposed motion for partial summary judgment on count one. The City appeals from the two April 25, 2008 orders.
The City argues that it did not violate N.J.S.A. 40A:9-165 when it changed plaintiff's employment from full time to part time, reducing his salary commensurate with the reduction in his weekly work hours. Plaintiff counters that the City is prohibited from reducing his salary during his term as tax assessor by the plain language of N.J.S.A. 40A:9-165. Amici curiae State of New Jersey and the Association of Municipal Assessors of New Jersey support plaintiff's position.
A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).
On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2010). We employ the same standard that governs trial courts in reviewing summary judgment orders. Block 268, LLC v. City of Hoboken ...