Shapiro v. Essex County Bd. of Chosen Freeholders

Decision Date01 February 1982
Citation183 N.J.Super. 24,443 A.2d 219
PartiesPeter SHAPIRO, Essex County Executive, Plaintiff-Respondent, v. ESSEX COUNTY BOARD OF CHOSEN FREEHOLDERS, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

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

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.

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 salaries as dependent on how that function was characterized:

Under the County Executive form of government, both the board and the county executive constitute the "governing body" of the county. N.J.S.A 40:41A-32(b). There is a distinct demarcation of authority between the two branches, however. The county executive is vested with responsibility for all administrative functions, while the board is the sole legislative body. Id. This division of labor resulted from the realization that the administrative burdens confronting freeholder boards seriously inhibited their ability to set priorities and formulate policies. Therefore, the threshold question presented is whether the setting of salaries is an administrative or a legislative function. (177 N.J.Super. at 95, 424 A.2d 1203; footnote omitted)

He concluded that the setting of the salaries in this case was an administrative function and thus within the province of the county executive.

The Hudson County Board of Chosen Freeholders, in their amicus brief, assert that Judge Baime's holding is too broad and if followed to its logical conclusion, will lead to untenable results. Specifically, Hudson County asserts that reliance upon § 100(d) is unsound for two reasons. First, since § 100(d) applies to all four county plans, Judge Baime's reasoning is equally applicable to all four plans. Hudson County suggests that vesting this salary-setting function in the administrator may not be appropriate under the other plans, particularly since under two of the plans the administrator is not elected. Second, Hudson County notes that factually the issue before the court involved the setting of salaries "of all administrative employees," and that Judge Baime's opinion went beyond the facts when he held that the county executive had the power to set all salaries not specified in § 100(d). Thus, Hudson County maintains that under this reasoning the county executive has the "power to set the salaries of the entire class of employees within the legislative branch of government, simply because that group of employees is not listed in 100(d)."

We do not believe that N.J.S.A. 40:41A-100(d) must be interpreted as rendering N.J.S.A. 40A:9-10 inconsistent with the Charter Law. And while we agree that the maxim expressio unius est exclusio alterius may properly be applied to the section, we do not apply it so as to imply that the freeholders' power to set salaries is limited to those positions listed. We believe the legislative intent evidenced in this section is to prescribe the manner in which the salaries for the positions listed must be set. Thus, only those titles listed in § 100(d) must have their salaries set by ordinance.

"It is a recognized tenet of municipal law that the term 'ordinance' encompasses matters legislative in character, while the term 'resolution' refers to matters administrative or procedural in nature." Albigese v. Jersey City, 129 N.J.Super. 567, 569, 324 A.2d 577 (App.Div.1974). See, also, McLaughlin v. Millville, 110 N.J.Super....

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    ...527 A.2d 379 (1987); Shapiro v. Essex County Freeholder Board, 177 N.J.Super. 87, 93, 424 A.2d 1203 (Law Div.1980), aff'd 183 N.J.Super. 24, 443 A.2d 219 (App.Div.1982), aff'd 91 N.J. 430, 453 A.2d 158 (1982). Where it is apparent that the drafters of a statute did not contemplate a specifi......
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