Angelo v. Shapiro

• Decision Date: 02 May 1979
• Citation: 168 N.J.Super. 459,403 A.2d 496
• Parties: Samuel J. ANGELO, Plaintiff, v. Peter SHAPIRO, County Executive of Essex County, the County of Essex, a bodypolitic of the State of New Jersey, and Herbert Gladstone, Director ofPersonnel Department of the County of Essex, Defendants.
• Court: New Jersey Superior Court

Page 459

168 N.J.Super. 459

403 A.2d 496

Samuel J. ANGELO, Plaintiff, v. Peter SHAPIRO, County Executive of Essex County, the County of Essex, a bodypolitic of the State of New Jersey, and Herbert Gladstone, Director ofPersonnel Department of the County of Essex, Defendants.

Superior Court of New Jersey, Law Division.

May 2, 1979.

Harkavy, Goldman, Goldman, Caprio & Levy, East Orange, for plaintiff (Martin S. Goldman, East Orange, of counsel).

Peter G. Stewart, Essex County Counsel and Paul T. Von Nessi, Asst. County Counsel, Newark, for defendants.

YANOFF, J. S. C.

This opinion is an expansion of remarks in an oral opinion rendered May 2, 1979.

The issue raised here involves the interaction between the Optional Municipal Charter Act (N.J.S.A. 40:41A-1 Et seq.) (hereinafter "Charter Act"), and a statute under which a county officer is appointed by the county for a fixed term (N.J.S.A. 40A:9-27).

In this case Samuel Angelo was designated under the cited statute Treasurer of the County of Essex by its freeholders, to complete a three-year term upon the death of the Treasurer. Subsequently, pursuant to petition and referendum (see Citizens for Charter Change in Essex Cty. v. Caputo, 136 N.J.Super. 424, 346 A.2d 605 (App.Div.1975), certif. den. 74 N.J. 268, 269, 377 A.2d 652 (1975) appeal after remand, 151 N.J.Super. 286, 376 A.2d 571 (1977), certif. den. 75 N.J. 527, 384 A.2d 507 (1977) ) the County of Essex opted for the County Executive Plan described in N.J.S.A. 40:41A-31. The new form of government came into effect in 1978. N.J.S.A. 40:41A-37 makes provision for an Administrative Code (hereinafter "Code"), which the Freeholders adopted by ordinance, effective May 1, 1979. The Code comprehensively reorganizes the entire county government, including the freeholders themselves and all county employees. Article 14.3 of the Code, as amended, provides:

Offices Continued, etc. All offices, positions, and employments, which are continued or reestablished by this code are transferred to the respective departments, offices, and agencies to which their functions are allocated and assigned by this code. The terms of all incumbents heretofore appointed for a fixed term to such offices, positions, and employments and the terms of all members of existing boards, agencies, commissions or authorities shall terminate as of the effective date of this code, except that such officers or members of the boards, commissions, and authorities that are continued may continue to serve until appointments and qualification of their successors, or may be reappointed to serve out the unexpired portion of their terms.

Plaintiff was advised by the County Executive that his employment thus terminated by the Code would not be renewed. The result was this prerogative writ action.

The pertinent provisions of the Charter Act, N.J.S.A. 40:41A-26, 27, read 26. General law. For the purposes of this act, a 'general law' shall be deemed to be such law or part thereof, heretofore or hereafter enacted, that:

a. Is not inconsistent with this act; and

b. Is by its terms applicable to or available to all counties, or;

c. Is applicable to all counties or to any category or class of counties, and deals with one or more of the following subjects: the administration of the judicial system, education, elections, health, county public authorities, taxation, and finance, and welfare.

Nothing in this act shall be construed to prevent counties from abolishing or consolidating agencies the existence of which has heretofore been mandated by State statute providing that such abolition or consolidation shall not alter the obligation of the county to continue providing the services previously provided by such abolished or consolidated agency.

27. County powers generally. Any county that has adopted a charter pursuant to this act may, subject to the provisions of such charter, general law and the State Constitution:

a. Organize and regulate its internal affairs; create, alter and abolish offices, positions and employments and define the functions, powers and duties thereof; establish qualifications for persons holding offices, positions and employments; and provide for the manner of their appointment and removal and for their term, tenure and compensation.

Six cases have been determined under § 26; this is the first case under § 27.

American Fed'n of State, Ctys. and Mun. Employees v. Hudson Welfare Bd., 141 N.J.Super. 25, 357 A.2d 67 (Ch.Div.1976), held that a county executive elected pursuant to the Charter Act was empowered to terminate a welfare board as an autonomous body and consolidate it with other county functions. Union Cty. v. State, 149 N.J.Super. 399, 373 A.2d 1037 (Law Div.1977), determined that a county which had adopted a new form of government under the Charter Act could abolish the County Mosquito Commission. Union County Park Comm'n v. Union Cty., 154 N.J.Super. 213, 381 A.2d 77 (Law Div.1976), aff'd 154 N.J.Super. 125, 381 A.2d 33 (App.Div.1977), certif. den. 75 N.J. 531, 384 A.2d 511 (1977), ruled that under the Charter Act a county could abolish the County Park Commission. In all these cases it was held that the reservation as to general law in § 26 did not prevent merger of the agencies involved, so long as the County made provision for continuing their functions.

Contrasted with these should be:

In re Salaries, Probation Officers Hudson Ctys., 158 N.J.Super. 363, 386 A.2d 403 (App.Div.1978), certif. den. 78 N.J. 339, 395 A.2d 208 (1978), which held that a county could not, under the Charter Act remove the officers of the probation department from the supervision of the county judges;

Board of Trustees, Mercer Cty. Commun. College v. Sypek, 160 N.J.Super. 452, 390 A.2d 629 (App.Div.1978), certif. den. 78 N.J. 327, 401 A.2d 560 (1978), holding that a county operating under the Charter Act could not terminate a community college as an independent entity;

State v. Hudson Cty., 161 N.J.Super. 29, 390 A.2d 720 (Ch.Div.1978), ruling that a county which assumed direct administration of the welfare program under the Charter Act could not ignore the effect of an employment and classification regulation previously promulgated by the Division of Public Welfare pursuant to statutory and decisional standards for "categorical assistance programs."

In comparing cases which have held "agencies" subject to consolidation with those which ruled that "units" were immune from reorganization under the Charter Act, one must consider the language of § 28 which reads in part: "Nothing in this act shall be construed to impair or diminish or infringe on the powers and duties of municipalities and other units of government under the general law of this State." "Units of government" under these provisions, read in conjunction with § 26, Supra, are thus put outside the scope of the Charter Act.

Separation of those cases in which a county, under Charter Act powers, may merge an agency of government, from those in which it may not, requires a weighing of the legislative policy which motivated the establishment of a discrete agency against the legislative policy which empowers a county under the Charter Act to merge the agency into the county structure. The reasons on each side may be closely balanced.

In this case there is no substantial problem in determining which objective the Legislature considered more important. An individual officeholder is not a "unit of government." Section 27 which confers power to abolish officers and employments upon a county, and, therefore, upon a county executive, pursuant to appropriate county ordinance, does not contain the limitations of § 26 that the functions must be continued even if the agencies are abolished, or the possible exemption from the Charter Act of "other units of government" under § 28, Supra, when read in conjunction with the definition of "General Law" in § 26.

Very persuasive is the fact that the quoted language from § 27 is taken almost verbatim from the Faulkner Act (N.J.S.A. 40:69A-29(a) ). In McCartney v. Franco, 87 N.J.Super. 292, 209 A.2d 329 (App.Div.1965); Cf. Ream v. Kuhlman, 112 N.J.Super. 175, 191-194, 270 A.2d 712 (App.Div.1970); Hutt v. Robbins, 98 N.J.Super. 99, 105, 236 A.2d 172 (App.Div.1967), certif. den. 51 N.J. 185, 238 A.2d 471 (1968), it was held that a county adopting the Faulkner Act had the right to terminate the office of an assessor on a reorganization pursuant to that statute. In my view, this case is squarely in point. Cf. Beirne v. Gangemi, 74 N.J.Super. 557, 181 A.2d 800 (App.Div.1962), certif. den. 38 N.J. 307, 184 A.2d 420 (1962). The Legislature, in adopting the Charter Act, is considered to have done so with knowledge of the judicial interpretations of language which it took from other statutes, in this case the Faulkner Act, and to have intended that the interpretation given to the earlier language be given also to the language later enacted (Quaremba v. Allan, 67 N.J. 1, 14, 334 A.2d 321 (1975); State v. J. C....