Kaman v. Montague Tp. Committee
| Decision Date | 17 December 1997 |
| Citation | 306 N.J.Super. 291,703 A.2d 680 |
| Parties | Maureen E. KAMAN, Plaintiff-Appellant, and Director, Division of Taxation, Intervenor-Appellant, v. MONTAGUE TOWNSHIP COMMITTEE, Mayor Richard Dickson, Deputy Mayor William Campana, Committeemen Patrick Smith, Paul Brislin, and Leroy Vandermark and Ben Murdock, Tax Assessor, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
Maurice J. Donovan, West Orange, for plaintiff-appellant Maureen E. Kaman (Benjamin M. Del Vento, Newark, attorney; Mr. Donovan, of counsel and on the brief).
Patrick DeAlmeida, Deputy Attorney General, for intervenor-appellant Director, Division of Taxation (Peter Verniero, Attorney General, attorney; Joseph L. Yannotti, Assistant Attorney General, of counsel; Mr. DeAlmeida, on the brief).
John D. Frederickson, Edgewater, for defendants-respondents (Carmel & Frederickson, attorneys; Mr. Frederickson, on the brief).
John R. Lloyd, Secaucus, for amicus curiae The Association of Municipal Assessors of New Jersey (Rosenblum Wolf & Lloyd, attorneys; Mr. Lloyd, on the brief).
Before Judges PETRELLA, SKILLMAN and EICHEN.
The opinion of the court was delivered by
PETRELLA, P.J.A.D.
The issue on appeal involves the interpretation and application of N.J.S.A. 40A:9-148 to the appointment and filling of vacancies for the position of municipal tax assessor. Plaintiff Maureen Kaman appeals from an order of the Law Division dismissing her complaint with prejudice and denying her requested restraints against defendant Township of Montague (Township) and various township officials named as defendants (defendants), for terminating her as tax assessor.
The issues on appeal are whether: (1) Kaman should be considered to have been appointed tax assessor for a four year term from July 1994 until June 1998 because of the inaction of the Township in July 1994 in reappointing a new tax assessor; (2) the Director of the Division of Taxation (Director) has the sole authority to remove a tax assessor from office; (3) Kaman is entitled to back pay pursuant to N.J.S.A. 40A:9-172; and, (4) the court erred in dismissing the complaint's CEPA 1 allegation.
The background facts are necessary to understand the arguments of the parties. On March 24, 1981, the Township appointed Donald DeKorte as tax assessor "through the end of 1981." DeKorte served until his resignation on May 8, 1990. On June 12, 1990, Ed Nowicki was appointed tax assessor for a term ending June 30, 1994. However, Nowicki resigned in March, 1991, and Lowery McMillan was appointed as tax assessor. McMillan resigned in May 1992.
On July 31, 1992, the Township Committee appointed Kaman to replace McMillan, but the resolution stated that the appointment was "for the next four (4) years." Kaman functioned as tax assessor from July 1992 through March 1996 without incident. She asserts that the mayor and clerk advised her in late March 1996 that her appointment as tax assessor had been discussed at a meeting and she would be formally appointed to another four year term starting July 1, 1996.
On May 15, 1996, Kaman wrote a memorandum to the clerk describing an incident involving the clerk, planning board secretary and a resident of the town and instructed her secretary not to take messages for another secretary. Kaman contends that as a result of her memorandum, she was labeled a troublemaker and that this incident led directly to defendants' actions in removing her as the tax assessor.
Kaman wrote to the Township Committee on May 23, 1996, expressing her interest in being reappointed. On May 29, 1996, the Township Committee notified Kaman that they would be advertising the position. She interviewed for the position on June 20, 1996, and then apparently for the first time indicated to the Township that she believed her term expired on June 30, 1998 (four years after the date McMillan's term ended), rather than ending June 30, 1996, in accordance with the Township's original appointment.
On June 27, 1996, Kaman received a letter from the Township Committee notifying her that the governing body had decided not to reappoint her, and instead appointed Ben Murdoch as tax assessor.
Kaman now takes the position, as she did in the Law Division, that she was appointed to finish McMillan's term (which actually was Nowicki's four year term) ending on June 30, 1994. Kaman contends that because she continued in her duties as the tax assessor on and after July 1, 1994 and into 1996, she should be considered as having been appointed to a four year term on July 1, 1994, and running to June 30, 1998.
The trial judge found that after July 1994 the Township did nothing because it was under the mistaken belief that Kaman's term did not end until June 30, 1996. The judge concluded that Kaman continued in office in a "holdover" status and was not entitled to an automatic four year term by reason of her holding over. The judge reasoned that a governing body has a right to decide whether to reappoint a person after her term has expired and did not lose that right because it made an honest mistake in calculating the term of office. The judge acknowledged that in some situations such a holdover position could encourage political deal making and wrongdoing. However, he found no evidence of wrongdoing in not realizing Kaman's term should have expired or that the Township purposefully held over Kaman or deliberately failed to act in June 1994. In fact, the judge indicated that when the issue of Kaman's term arose in 1996 the Township dealt with it expeditiously. Hence, the judge denied relief to Kaman.
The parties now agree that by virtue of N.J.S.A. 40A:9-148 Kaman's initial appointment should have been, and must be construed as one to fill out the remainder of the preceding tax assessor's term, which expired in June 1994. However, Kaman argues that the Township's inaction in June 1994 and for the following two years constituted an appointment for a four year term ending June 30, 1998. Kaman, the Director, and amicus argue that since she remained in office and fulfilled her duties as tax assessor continuously from June 1994 through June 1996, the Township's failure to realize its mistake in calculating the term should not permit it to consider her merely a "holdover" tax assessor and allow the Township to terminate (on June 30, 1996) her "new" four year appointment, which they allege started July 1, 1994, under something akin to a ratification theory.
In addition, Kaman, the Director, and amicus argue that the Legislature does not permit holdover tax assessors because that status would subject the tax assessor position to undue influence and political pressure. Kaman argues that only the Director of the Division of Taxation has authority to remove a tax assessor from office. Finally, Kaman claims entitlement to back pay and that the lower court dismissed her complaint without any consideration given to her CEPA allegation. 2
The Township and individual defendants argue that after June 1994, and during the period they thought Kaman was serving the four year term, Kaman should be considered a holdover tax assessor, remaining in office pending replacement. They assert that if Kaman is now permitted to remain in office until June 30, 1998, because of an oversight by the governing body in not realizing she was actually appointed to an unexpired term ending June 30, 1994, the will of the duly elected representatives in the Township would be thwarted. Defendants argue that it is illogical to conclude that the Township ratified Kaman's position as the tax assessor for a new four year term beginning June 1994 through its inaction when it erroneously believed the initial appointment of Kaman terminated in 1996. Finally, defendants argue that the Law Division judge properly dismissed Kaman's CEPA claim.
N.J.S.A. 40A:9-148 states:
Every municipal tax assessor and deputy assessor shall hold his office for a term of 4 years from the first day of July next following his appointment.
Vacancies other than due to expiration of term shall be filled by appointment for the unexpired term.
N.J.S.A. 40A:9-148 requires fixed terms. See Ream v. Kuhlman, 112 N.J.Super. 175, 190, 270 A.2d 712 (App.Div.1970) (); Township of Madison v. Fiore, 112 N.J.Super. 23, 26, 270 A.2d 293 (App.Div.1970), certif. denied, 57 N.J. 595, 274 A.2d 50 (1971) (). Tax assessors must be free from political pressure. See Ream v. Kuhlman, supra, 112 N.J.Super. at 190, 270 A.2d 712 ().
The clear language of the statute required that Kaman's initial appointment in July 1992 should have been to fill the remaining two years left in the unexpired term of Kaman's predecessor, despite the Township's then belief that the term would be four years from the time of appointment. The issue here is how do we treat the de facto occupant of the tax assessor's position where that has occurred by mutual mistake and there has been no attempt to subvert the statute.
Kaman, the Director and amicus in effect argue for a bright line test to bar any holdover status and require that service in the position of tax assessor after the end of a term (whether or not the municipality mistakenly and honestly believes the term ends on a different date) results in an automatic appointment or implied ratification of a new four year term. This position is untenable and capable of working as much mischief as sought to be...
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Kaman v. Montague Tp. Committee
...Township Committee NOS. C-843 SEPT.TERM 1997, 45,319 Supreme Court of New Jersey June 17, 1998 Lower Court Citation or Number: 306 N.J.Super. 291, 703 A.2d 680 Disposition: ...