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Conway v. Borough of Florham Park

March 5, 2010

JOHN P. CONWAY, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
BOROUGH OF FLORHAM PARK, MAYOR AND COUNCIL OF THE BOROUGH OF FLORHAM PARK, DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2716-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 1, 2010

Before Judges Rodríguez and Yannotti.

Defendants Borough of Florham Park and the Mayor and Counsel of the Borough (collectively "the Borough") appeal from an order entered by the trial court on December 30, 2008, which granted summary judgment to plaintiff John P. Conway on his wrongful termination claim and awarded him damages. Plaintiff cross-appeals from the court's order. For the reasons that follow, we affirm in part, reverse in part and remand for further proceedings on the appeal; and affirm on the cross-appeal.

I.

The relevant facts are undisputed. In June 2006, the Borough appointed plaintiff as its borough administrator and the parties executed an employment agreement which stated that plaintiff's appointment was for the period from June 20, 2006 through December 31, 2006. The Borough reappointed plaintiff for a one-year term beginning on January 1, 2007, and ending on December 31, 2007.

On November 12, 2007, the Mayor-elect informed plaintiff that he would not be reappointed in January 2008. This verbal notice was confirmed by letter dated December 6, 2007. On December 31, 2007, plaintiff turned in his keys and did not report to work after January 1, 2008.

At a meeting held on January 2, 2008, by a vote of five to zero, the Borough Council appointed another person to serve as borough administrator. The Borough of Berkeley Heights subsequently appointed plaintiff as its borough administrator and he began to serve in that capacity on April 1, 2008.

On September 16, 2008, plaintiff filed an action in lieu of prerogative writ in the Law Division. In his complaint, plaintiff alleged that the Borough had terminated his employment as borough administrator in violation of N.J.S.A. 40A:9-138. Plaintiff also alleged that the members of the Borough's governing body violated the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21 (OPMA), when they discussed his employment at a meeting from which the public was excluded.

Thereafter, the parties filed motions for summary judgment. The trial court considered the motions on December 5, 2008, and placed its decision on the record on that date. The court concluded that the Borough was entitled to summary judgment on plaintiff's OPMA's claims. The court further concluded that plaintiff was entitled to summary judgment on his wrongful termination claim.

The trial court found that the Borough had violated N.J.S.A. 40A:9-138 when it terminated plaintiff's employment because his removal was not approved by a two-third vote of the governing body. The court further found that Conway was entitled to three months salary, at a rate of $90,000 per annum, for the period from January 1, 2008 through April 1, 2008, as well as an additional three months of salary thereafter. The court also rejected plaintiff's claim for accrued vacation, sick and personal days after December 31, 2007.

The court entered an order dated December 30, 2008, memorializing its decisions on the ...


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