On appeal from Superior Court of New Jersey, Law Division. Middlesex County, Docket No. L-2362-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
Plaintiff, Anthony Cancro, appeals from an order of summary judgment entered in favor of defendant, Township of Edison, on his claim of entitlement to three months of severance pay, following a determination by the Township's newly elected mayor not to appoint him as the Township's Business Administrator, a position that he had held in the prior administration. Plaintiff claims that the court erred in entering summary judgment in favor of the Township, and that summary judgment should, instead, have been awarded in his favor.
On appeal from the entry of summary judgment in favor of the Township, we view the facts in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). In considering whether summary judgment should have been awarded to plaintiff, we reverse our focus.
The record discloses that, in 2006, plaintiff, who was then employed by the United States Department of Environmental Protection, was recruited for the position of Business Administrator for the Township of Edison, under the administration of Township Mayor, Jun Choi. Prior to his appointment to that position, he had informed the consultant hired by the Township to assist in recruitment, Gregory Fehrenbach, the Mayor, and the Township Council that he required, as a condition for accepting employment, that he be given three-months' severance pay if released or not reappointed.
Nonetheless, the resolution passed by the Township Council on June 14, 2006, giving its consent to plaintiff's appointment as Business Administrator by the Mayor, made no mention of severance. The Term Sheet incorporated by reference into the resolution provided, in relevant part, only:
1. Term: The term of appointment of Cancro shall be coterminous with the term of office of the Mayor. Reappointment shall be based upon job performance.
A July 17, 2006 letter from the Mayor to plaintiff informing him of his appointment similarly contained no reference to severance.
However, prior to plaintiff's appointment, the Mayor had requested that the Township's attorney, Jeffery Lehrer, draft an ordinance with respect to severance. According to Lehrer's certification, he "was informed by Mayor Choi and Mr. Fehrenbach that an express term of Mr. Cancro's employment agreement with the Township was that he would be given three months of severance or three months of notice in the event that he was removed or not reappointed." The ordinance drafted by Lehrer and adopted by the Township Council as Section 2-22.1(c), according to Lehrer, "largely mirrored" a State statute that expressly authorized the Township's agreement with plaintiff.
The statute, N.J.S.A. 40:69A-43(c), governs removal of department heads by a mayor and provides that, if a mayor's decision is not vetoed by two thirds of the members of the municipal council, the mayor may remove any department head from his position, after notice and an opportunity to be heard. The statute then provides:
In the event of the removal or failure of reappointment of a business administrator, that administrator may, upon the enactment of an ordinance, be entitled to a three-months' written notice of the removal or non-reappointment, or if the mayor determines that the removal shall be immediate, then the administrator may, upon the enactment of an ordinance, be paid any unpaid balance of his salary plus his salary for a maximum of the next ...