Shapiro v. Essex County Bd. of Chosen Freeholders

• Court: New Jersey Superior Court – Appellate Division
• Citation: 183 N.J.Super. 24,443 A.2d 219
• Parties: Peter SHAPIRO, Essex County Executive, Plaintiff-Respondent, v. ESSEX COUNTY BOARD OF CHOSEN FREEHOLDERS, Defendant-Appellant.
• Decision Date: 01 February 1982

Page 24

183 N.J.Super. 24 443 A.2d 219 Peter SHAPIRO, Essex County Executive, Plaintiff-Respondent,
v.
ESSEX COUNTY BOARD OF CHOSEN FREEHOLDERS, Defendant-Appellant. Superior Court of New Jersey, Appellate Division. Argued Nov. 17, 1981.
Decided Feb. 1, 1982.

Page 25

Thomas M. McCormack, Essex County Board of Chosen Freeholders Counsel, West Orange, for defendant-appellant.

[443 A.2d 220] David H. Ben-Asher, Essex County Counsel, Newark, for plaintiff-respondent (Marc C. Gettis, Asst. County Counsel, Newark, on the briefs).

Charles M. Schimenti, Hudson County Board of Chosen Freeholders Counsel, Jersey City, for amicus curiae board.

William L. Boyan, Mercer County Board of Chosen Freeholders Counsel, Lawrenceville, submitted a brief on behalf of amicus curiae board.

Paul T. Koenig, Jr., Mercer County Counsel, Pennington, submitted a brief on behalf of amicus curiae Bill Mathesius (Barry D. Szaferman, Lawrenceville, and Gail R. Henningsen, Pennington, of counsel and on the brief).

Before Judges MATTHEWS, PRESSLER and PETRELLA.

The opinion of the court was delivered by

MATTHEWS, P. J. A. D.

This is an appeal by defendant Essex County Board of Chosen Freeholders from a summary judgment entered in the Law Division holding that under the Optional County Charter Law, N.J.S.A. 40:41A-1 et seq., the authority to set salaries of county employees below the level of department head is vested in the county executive and not in the board. The facts, which are not in dispute, and the question presented for resolution are set forth in Judge Baime's opinion which is reported in 177 N.J.Super. 87, 424 A.2d 1203.

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We agree with Judge Baime that the fixing of the salaries here in question is an administrative act and that the Legislature has granted that power to plaintiff. In reaching our conclusion, however, we proceed by a slightly different route for the reasons hereinafter expressed.

Prior to the enactment of the Charter Law the boards of freeholders determined the salaries of all county employees pursuant to N.J.S.A. 40A:9-10:

Except as otherwise provided by law, the board of chosen freeholders of the county or the governing body of the municipality shall fix the amount of salary, wages or other compensation to be paid to county and municipal officers and employees unless they are to serve without compensation.

Whether this general statute applies to Charter Law counties depends upon whether it is "not inconsistent" with the Charter Law. N.J.S.A. 40:41A-26(a).

The only clear statement on the subject of determining salaries under the Charter Law, as Judge Baime noted, is found in N.J.S.A. 40:41A-100(d). That section authorizes the freeholders to fix the compensation of its members, the county executive, the county administrator and all department heads. More specifically, it provides:

The compensation of the county executive, supervisor, manager or board president, and of freeholders and the administrative officer and department heads shall be fixed by the board by ordinance promptly after its organization.

Utilizing the expressio unius interpretive aid to statutory construction, Judge Baime concluded that § 100(d) was an exhaustive list of those positions for which the freeholders may set salaries. Since that section was narrower than the general salary setting power of N.J.S.A. 40A:9-10, Judge Baime held that that statute was inconsistent with the Charter Law and thus inapplicable.

Having concluded that N.J.S.A. 40A:9-10 did not apply, Judge Baime resolved the question of who was empowered to set administrative...