Loboda v. Clark Tp.

• Decision Date: 08 July 1963
• Docket Number: No. A--115,A--115
• Citation: 193 A.2d 97,40 N.J. 424
• Parties: Alfred J. LOBODA, Eugene J. Schiller, Muriel E. Nadler and Joseph J. Smith, Plaintiffs-Appellants, v. TOWNSHIP OF CLARK, a municipal corporation of Union County, New Jersey, William J. Maguire, John Doenzelmann, Karl Kummer and Norma B. Davenport, and Department of Civil Service, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 424

40 N.J. 424

193 A.2d 97

Alfred J. LOBODA, Eugene J. Schiller, Muriel E. Nadler and Joseph J. Smith, Plaintiffs-Appellants, v. TOWNSHIP OF CLARK, a municipal corporation of Union County,

New Jersey, William J. Maguire, John Doenzelmann, Karl

Kummer and Norma B. Davenport, and Department of Civil

Service, Defendants-Respondents.

No. A--115.

Supreme Court of New Jersey.

Argued May 6, 7, 1963.

Decided July 8, 1963.

Seymour Margulies, Jersey City, for plaintiffs-appellants (Levy, Lemken & Margulies, Jersey City, of counsel and on the brief, Rubenstein & Glick, Jersey City, attorneys).

Irvine B. Johnstone, Jr., Westfield, for defendants-respondents, Township of Clark and William J. Maguire.

William Miller, Princeton, for defendants-respondents John Doenzelmann, Karl Kummer and Norma B. Davenport.

William L. Boyan, Deputy Atty. Gen., for respondent Dept. of Civil Service, State of New Jersey (Arthur J. Sills, Atty. Gen., attorney).

The opinion of the court was delivered by

HANEMAN, J.

At a general election held on November 3, 1959, the electorate of the Township of Clark adopted Mayor-Council Plan 'F' (N.J.S.A. 40:69A--74--80) of the Faulkner Act, N.J.S.A. 40:69A--1, et seq. On November 8, 1960, pursuant to N.J.S.A. 40:69A--77, 78 and 205(b), the voters of the township elected a mayor and governing body. At the same election, as the result of a referendum held pursuant to a petition filed in August, 1960, the provisions of the Civil Service Act, R.S. 11:19--1 et seq., N.J.S.A. were adopted by said voters. Plan 'F' became effective on 'the first day of January next following the first election of officers', i.e., January 1, 1961. N.J.S.A. 40:69A--205(c). Joseph J. Smith, having been designated Director of the Department of Public Works and Engineering subsequent to the effective date to said plan, made the following appointments of plaintiffs on June 27, 1961: Alfred J. Loboda as Building Inspector, Eugene J. Schiller (who died on May 18, 1962) as Plumbing Inspector, and Muriel E. Nadler as clerk in Smith's department. On that same date, Smith advised John Doenzelmann, Karl Kummer, and Norma B. Davenport that their respective employments as Building Inspector, Plumbing Inspector, and clerk would be terminated on June 30, 1961. The defendants refused to vacate their offices, claiming that since they had continuously been employed from a time prior to the filing of the petition in August 1960, which initiated the proceedings that eventually led to the adoption of the Civil Service Act in the township, they were protected from summary removal by the tenure provisions of N.J.S.A. 11:21--6. Plaintiffs filed an action in lieu of prerogative writs in the Law Division, demanding the removal of said defendants from their respective employments, and a judgment that the plaintiffs were legal temporary appointees to their respective positions or offices above mentioned, subject to certain examinations which they would be required to take pursuant to Civil Service requirements. See R.S. 11:23--1, et seq, N.J.S.A. Answers having been filed, the parties made a motion and a cross-motion for summary judgment. The trial court granted defendants' cross-motion. 74 N.J.Super. 159, 180 A.2d 721 (1962). The four above-named plaintiffs appealed to the Appellate Division. Prior to argument there, this court certified the appeal upon its own motion. R.R. 1:10--1(a).

Plaintiffs argue that the offices held by defendants were abolished and that their terms thereto ceased and determined on January 1, 1961, the date that the Faulkner Act became effective in the Township of Clark. They bottom their conclusion upon a literal reading of N.J.S.A. 40:69A--207. This section states, in part:

'At 12 o'clock noon on the effective date of an optional plan adopted pursuant to this act, all offices then existing in such municipality shall be abolished and the terms of all elected and appointed officers shall immediately cease and determine; provided, that nothing in this section shall be construed to abolish the office or terminate the term of office of any member of the board of education, trustees of the free public library, commissioners of a local housing authority, municipal magistrates or of any official or employee Now protected by any tenure of office law, or of any policeman, fireman, teacher, principal or school superintendent whether or not protected by a tenure of office law. If the municipality is operating under the provisions of Title 11 of the Revised Statutes (Civil Service) At the time of the adoption of an optional plan under this act, nothing herein contained shall affect the tenure of office of any person holding any position or office coming within the provisions of said Title 11 as it applies to said officers and employees. If the municipal clerk has, prior to the effective date of the optional plan, acquired a protected tenure of office pursuant to law, he shall become the first municipal clerk under the optional plan.' (Emphasis supplied.)

They assert that since the referendum involving the adoption of Plan 'F' of the Faulkner Act was held on November 3, 1959, and the referendum involving the adoption of the Civil Service Act was held on November 8, 1960, Clark Township was not operating under the Civil Service Act either at the time when the Faulkner Act became an effective law of this State in 1950 (they construe the word 'now' in the first sentence of section 207 to mean the enactment date of the Faulkner Act, and for this purpose, they include the Civil Service Act within the reference to a 'tenure of office law'), or 'at the time of the adoption of an optional plan' by the township. Therefore, it follows, they say, that the exemptive provisions of section 207 do not protect the defendants from the general provision of that section which stipulates that all offices existing on the effective date of Plan 'F' are abolished and that the terms of all elected and appointed officers then cease and determine.

Contrarily, defendants argue that they obtained tenure to these offices upon the adoption of the Civil Service Act on November 8, 1960 by virtue of N.J.S.A. 11:21--6, which reads:

'Hereafter, all officers, clerks and employees in the employ of any * * * municipality * * * at the time of the adoption of this subtitle by such * * * municipality * * *, coming within the competitive or noncompetitive class of the civil service, except such as may be appointed between the time of the filing of the petition for the adoption of this subtitle and the holding of the referendum for the adoption thereof in such * * * municipality * * *, shall continue to hold their offices or employments, and shall not be removed therefrom except in accordance with the provisions contained in this subtitle relative to the removal of persons in the competitive or noncompetitive class, it being the intention hereby to include any and all such officers, clerks, employees and laborers within the classified service of a * * * municipality * * * and to be subject in all respects to the provisions of this subtitle.'

They allege that such tenure was protected by the provisions of N.J.S.A. 40:69A--207. Although the Civil Service exception in section 207 reads 'at the time of the adoption of an optional plan,' defendants contend that it must be construed to mean 'at the time of the effective date of an optional plan.' They conclude that in view of this construction, the Civil Service Act, which was adopted in the township prior to the effective date of the Faulkner Act, causes their tenure, created by N.J.S.A. 11:21--6, to continue their employment rights unless terminated in the manner provided by R.S. 11:19--1, et seq, N.J.S.A.

Therefore, it becomes necessary to ascertain the legislative intent in enacting N.J.S.A. 40:69A--207.

A majority of this court has held that N.J.S.A. 40:69A--1, et seq. has two objectives, (1) the abolition of all offices existing in the municipality on the effective date of the adopted plan, and (2) the termination of all terms of office on that date, so that a 'clean slate' of elected and appointed personnel could be created by the first governing body elected under the Faulkner Act. The Broadway National Bank of Bayonne v. The Parking Authority of the City of Bayonne, 40 N.J. 227, 191 A.2d 169 (1963). A minority of this court concluded in The Broadway National Bank of Bayonne, supra, that the Faulkner Act was concerned primarily with a change of governmental structure and, hence, with the abolition of existing offices, and incidentally thereto with the termination of the terms of incumbents of such offices. What follows applies to either thesis as, generally, the abolishment of an office automatically ends the term of the incumbent. The Broadway National Bank of Bayonne, supra, 40 N.J., at p. 234, 191 A.2d, at p. 173.

We shall initially consider the first sentence of N.J.S.A. 40:69A--207. It is there provided that on the effective date of a plan, 'all offices then existing * * * shall be abolished and the terms of all elected and appointed officers shall immediately cease and determine.' It is plain that the statute proposed, minimally, to grant elected officials the free and untrammeled discretion to create a new municipal governmental structure and to that end to establish only such offices as it conceived were necessary, regardless of the offices that had existed under the extinct charter.

However, the Legislature saw fit to create an exception to this universal nullification by providing that 'nothing in this section shall be construed to abolish the office or terminate the term of office * * * of any official or employee Now protected by any Tenure of office law'. (Emphasis supplied) As a result, not only were the offices occupied by persons enjoying tenure specifically saved from extinction, including the offices of Civil Service employees (if this exception is applicable to them), but those...