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North Haledon Fire Company No. 1, John Bleeker and Daniel Stevenson v. Borough of North Haledon

May 16, 2012

NORTH HALEDON FIRE COMPANY NO. 1, JOHN BLEEKER AND DANIEL STEVENSON, PLAINTIFFS-RESPONDENTS/ CROSS-APPELLANTS,
v.
BOROUGH OF NORTH HALEDON, DEFENDANT-APPELLANT, AND LINCOLN NATIONAL CORPORATION D/B/A LINCOLN FINANCIAL GROUP, APPROVED FOR PUBLICATION DEFENDANT/CROSS-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1502-09.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 7, 2012

Before Judges Messano, Yannotti and Kennedy.

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

Defendant Borough of North Haledon (Borough) appeals from a judgment entered by the trial court on November 12, 2010, which required the Borough to return to plaintiffs John Bleeker (Bleeker) and Daniel Stevenson (Stevenson), monies withdrawn from their individual Length of Service Award Program (LOSAP) accounts. The Borough also appeals from an amended judgment entered by the court on January 7, 2011, which extended the relief granted to Bleeker and Stevenson to all members of the Borough's Fire Department. Plaintiffs cross-appeal from the trial court's order of August 14, 2009, granting summary judgment to defendant Lincoln Financial Corp. d/b/a Lincoln Financial Group (Lincoln).

For the reasons that follow, we affirm in part and reverse in part on the appeal, and affirm on the cross-appeal. We remand the matter for entry of an amended judgment limiting the relief granted to plaintiffs Fire Company No. 1, Bleeker and Stevenson.

I.

This appeal arises from the following facts. The Emergency Services Volunteer Length of Service Award Program Act (the LOSAP Act), N.J.S.A. 40A:14-183 to -193, was enacted into law in 1997 and became effective on January 19, 1998. L. 1997, c. 388, § 1. The LOSAP Act authorizes a county or municipality in which a fire district does not exist to establish by ordinance a LOSAP for active volunteer members of the emergency service organizations operating under the county's or municipality's jurisdiction. N.J.S.A. 40A:14-185(a).

The LOSAP Act provides that every ordinance or resolution creating a LOSAP shall include:

(1) A general description of the program;

(2) A statement of the proposed estimated total amount to be budgeted for the program;

(3) A statement of the proposed maximum annual contribution for an active volunteer member;

(4) If the proposed program authorizes the crediting of prior year service, a statement of the number of prior years of service available for crediting for each active volunteer member; and

(5) Any such other provisions as may be reasonably required by the [Director of the Division of Local Government Services in the Department of Community Affairs] to carry out the purposes of this act. [N.J.S.A. 40A:14-185(d).]

An ordinance or resolution establishing a LOSAP may not take effect until presented as a public question at a general election and ratified by the voters. N.J.S.A. 40A:14-185(c).

On August 15, 2001, the Borough adopted Ordinance No. 12-2001 establishing a LOSAP for the active members of the Borough's volunteer fire department. The ordinance provides for the payment of annual contributions to a deferred income account for each active volunteer member of the fire department that meets certain criteria. The maximum annual contribution is $1,150. The Borough submitted the ordinance to the voters at the general election on November 6, 2001. The voters ratified the ordinance, and it became effective on January 1, 2002.

According to the ordinance, members of the volunteer fire department had to earn at least sixty points in each qualifying year in order to qualify for a LOSAP contribution. Points are earned for fire department responses, training, holding a specified elected position, drills and other activities, and length of service.

The ordinance indicates that a maximum of sixty points and a minimum of thirty points could be earned for fire department responses, based on the following schedule:

45% or more attendance - 60 points 35% to 44% attendance - 50 points 25% to 34% attendance - 40 points 20% to 24% attendance - 30 points less than 20% attendance - 0 points The ordinance also indicates that a member could earn from between ten and fifty points for training; between two and forty points for holding certain elected positions; between five and fifteen ...


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