Caldwell v. Rochelle Park Tp.

• Decision Date: 02 June 1975
• Citation: Caldwell v. Rochelle Park Tp., 342 A.2d 583, 135 N.J.Super. 66 (N.J. Super. 1975)
• Parties: Lloyd E. CALDWELL, Plaintiff, v. TOWNSHIP OF ROCHELLE PARK, Defendant.
• Court: New Jersey Superior Court

Page 66

135 N.J.Super. 66

342 A.2d 583

Lloyd E. CALDWELL, Plaintiff, v. TOWNSHIP OF ROCHELLE PARK, Defendant.

Superior Court of New Jersey Law Division.

June 2, 1975.

William M. Messineo, Garfield, for plaintiff (Messineo & Messineo, Garfield, attorneys).

Elmer J. Skiba, Hackensack, for defendant (Skiba & Atkins, Hackensack, attorneys).

PETRELLA, J.C.C., Temporarily Assigned.

This matter is before the court on cross-motions for summary judgment. Both parties agree that the controversy is ripe for summary judgment on the legal issue.

It is undisputed that plaintiff was employed as a patrolman by the Borough of Ramsey from June 1, 1964 to April 30, 1967, when plaintiff voluntarily transferred from the Police Department of Ramsey to that of defendant Township of Rochelle Park. A March 20, 1967 township committee resolution appointed plaintiff a patrolman 'effective May 1, 1967 at a salary as provided in the Salary Ordinance for a patrolman having two years prior experience.' The appointment was conditioned on an initial one-year probationary period and was expressly subject to the terms and conditions of the salary ordinance adopted March 6, 1967. In February 1975 (apparently after learning in 1974 of certain recent court decisions), and relying on the 1971 enactment of N.J.S.A. 40A:9--5, plaintiff filed a complaint in lieu of prerogative writ ¹ seeking additional longevity and vacation pay from the township based on his 2 years and 11 months prior experience with the Ramsey Police Department. Apparently he also seeks credit for an additional 11 months of benefits not received under his appointment resolution. Defendant denies plaintiff is entitled to additional compensation or benefits.

The parties agree that the issue before the court is the applicability of N.J.S.A. 40A:9--5 to plaintiff upon a transfer from employment in one municipality to employment in another municipality in the same county.

The Appellate Division has recently ruled on transfers from municipal to county employment under N.J.S.A. 40A.9--5, effective July 1, 1971 in L.1971, C. 200. This statute provides as follows:

Rights of certain employees transferred to other positions.

Whenever heretofore or hereafter a transfer has been or shall be effected by appointment, assignment or promotion of a municipal employee to any other department or position in municipal employment, or to a position or department of the county government; or of a county employee to any other position or department in county employment, or to a department or position of a municipal government, in counties of the first or second class, the period of such prior service in said county or municipal employment, for any purpose whatsoever, shall be computed as if the whole period of employment of such employee had been in the service of the department, or in the position, to which the said employee had been transferred.

If the above statute applies to Officer Caldwell then he would be entitled to credit for previous municipal employment, measured from the date of his first employment with Ramsey, and a salary adjustment from either that date or the effective date of N.J.S.A. 40A:9--5, unless limited by laches or waiver. See Libby v. Union Cty. Bd. of Freeholders, 125 N.J.Super. 471, 474, 311 A.2d 749 (App.Div.1973).

Defendant township contends that N.J.S.A. 40A:9--5 is inapplicable to plaintiff and that while New Jersey cases have held that a transfer described in the statute need not be involuntary, they involved employee transfers from municipal employment to positions in county government, relying upon Libby v. Union Cty. Bd. of Freeholders, supra (voluntary municipal to county employment) and an unreported decision of this court decided in Bergen County on December 6, 1974.

The municipality urges that the statute was not designed to cover individuals employed in one municipality who voluntarily resign and take employment in another municipality. Rather, it contends the statute was designed to cover employees who are involuntarily transferred from one position to another position in the same municipality by appointment, assignment or promotion, or a transfer from municipal to county employment.

Plaintiff argues that N.J.S.A. 40A:9--5 and subsequent case law entitle him to the relief sought. See also Fivehouse v. Passaic Valley Water Comm'n, 127 N.J.Super. 451, 317 A.2d 755 (App.Div.), certif. den. 65 N.J. 565, 325 A.2d 699 (1974) (transfer between municipal employment and public agency not covered). In addition, plaintiff contends that changes in the wording of N.J.S.A. 40A:9--5 from the Source law, N.J.S.A. 40:11--5, as well as the wording of the current statute itself, would support a finding of legislative intent to make the statute applicable where a municipal employee voluntarily transfers to employment in another municipality as opposed to a transfer within the same municipality.

In determining whether plaintiff comes within the statutory provision, the court has examined the source law, case interpretation of the prior statute, the circumstances leading to its amendment in a legislative revision and the changes made in its wording, to see if they shed light on legislative intent.

The Appellate Division, in construing N.J.S.A. 40A:9--5, did not cite or rely on the case of Carroll v. Caufield, 80 N.J.Super. 472, 194 A.2d 35 (Law Div.1963), as to legislative history or interpretation. In Carroll five Newark employees who voluntarily became members of that city's fire department sought credit for past service with various other city departments from which they had voluntarily resigned after successfully passing Civil Service examinations. The court in Carroll looked to the legislative intent of N.J.S.A. 40:11--5 (in effect since at least 1931) and other applicable laws, including the Civil Service laws, to resolve conflicting policies, and said:

This case must turn, then, on the intent of the Legislature in enacting R.S. 40:11--5. It is clear that the interpretation urged by plaintiffs would cast its shadow on certain sections of the Civil Service Act. For example, R.S. 11:22--6 provides for a probationary period of three months following appointment or promotion to a new position. N.J.S.A. 11:22--34 provides that seniority be given due consideration in making promotions. Could the probationary period be held to apply to one who already has lengthy service in another Civil Service post? Should this service be counted as seniority, thus entitling a new recruit to the Fire Department, for example, who has had five years in the Police Department, to priority on the promotion list over a four-year veteran of the Fire Department? Can it be said that such a result is any more incongruous than having newly appointed Firemen paid at a higher rate than firemen with three or four years of experience, as is urged by plaintiffs herein? Did the Legislature intend such an effect?

Even more basically at issue is the question of whether or not the Legislature intended that R.S. 40:11--5 be applicable to those situated as plaintiffs herein, thus limiting the power of the municipality to set salary schedules by ordinance for its firemen. Defendant city claims this power under three statutes. ² (at 475--476, 194 A.2d at 37.)

It also examined the preamble and the statement that accompanied the bill when it was introduced in the Legislature as well as the wording of the statute itself, and found that:

Each of these * * * appears to be protective in tone. The wording of each (as well as R.S. 40:11--5 itself) implies passivity in the employee. Each indicates that the act is designed to supply a measure of security for the employee who would otherwise, through forces beyond his control, be deprived of certain of his rights insofar as continuity of service as a public employee is concerned. The accompanying statement is the most clear as it cites those who 'must begin as new employees thereby losing their seniority rights, which their previous service entitled them to.' (at 480, 194 A.2d at 39).

The court concluded in Carroll that since plaintiffs in that action were volunteers, they did not come under the protection of seniority rights afforded by the statute.

N.J.S.A. 40:11--5, entitled 'Rights of certain employees transferred to other positions in certain counties,' was repealed and replaced by N.J.S.A. 40A:9--5 as part of a revision or codification of Title 40. ³ The appendix to the bill introduced in the Legislature (Senate Bill 641 of 1970) indicates that the repealed section was the source of the present section. The changes in the wording of this specific section are few and insubstantial, and its basic design was kept intact. On March 8, 1971 Governor Cahill conditionally vetoed Senate Bill 641 embracing the statute here under consideration, returning it with his objections for reconsideration with suggested amendments. His veto message stated that:

Senate Bill No. 641 is the result of a long and arduous effort to codify existing laws relating to county and municipal officers and employees and to eliminate obsolete statutory provisions in Title 40 of the New Jersey Statutes.

There was no recommended change by the Governor in his conditional veto message to the section which was enacted subsequently as section 5 of Chapter 9 of Title 40A, 'Officers and Employees.' Nor had there been any amendment in the legislative process or statement of the sponsor regarding that section. The general rule is that where a statute is ambiguous, messages of the Executive to the Legislature can be used to determine legislative intent, and the action of a Governor in approving or vetoing a bill is part of the legislative process. State v. Madden, 61 N.J. 377, 388, 294 A.2d 609 (1972); Asbury Park Bd. of Ed. v. Hoek, 38 N.J. 213, 235--236, 183 A.2d 633 (1962); Dept. of Health v. Sol Schnoll Dressed Poultry Co., 102 N.J.Super. 172, 176--177, 245 A.2d 532 (App.Div.1968); and 2A...