Shapiro v. Essex County Bd. of Chosen Freeholders

Decision Date12 November 1980
Citation424 A.2d 1203,177 N.J.Super. 87
PartiesPeter SHAPIRO, Essex County Executive, Plaintiff, v. ESSEX COUNTY BOARD OF CHOSEN FREEHOLDERS, Defendant.
CourtNew Jersey Superior Court

David H. Ben-Asher, Newark, for plaintiff.

Thomas M. McCormack, West Orange, for defendant.

Paul T. Koenig, Jr., Pennington, for amicus curiae Mercer County Executive.

William L. Boyan, Trenton, for amicus curiae Mercer County Bd. of Chosen Freeholders.

BAIME, J. D. C. (temporarily assigned).

This case involves a question of first impression. At issue is whether the Optional County Charter Law (Charter Law), N.J.S.A. 40:41A-1 et seq., authorizes the county executive or the board of freeholders (board) to determine the salaries of county employees. Plaintiff contends that the statutory scheme empowers the county executive to set salaries. Defendant argues that the authority to fix the salaries of county personnel remains with the board.

The facts are not in dispute and are essentially a matter of public record. Essex County adopted the County Executive form of government on November 7, 1978. Both plaintiff and defendant assumed office under this new plan on November 13, 1978. From that date until April 23, 1980 plaintiff set the salaries of all administrative employees other than himself, the county administrator, department heads and the board of freeholders, this task being expressly granted to defendant. 1 On March 26, 1980 defendant enacted a comprehensive salary ordinance. 2 This ordinance purported to establish the salaries of all administrative employees. Plaintiff vetoed this ordinance on April 15, 1980. Defendant subsequently overrode plaintiff's veto. Plaintiff thereupon commenced this suit seeking a declaratory judgment that the authority to set salaries is vested in the county executive. Both plaintiff and defendant seek summary judgment.

In support of his motion plaintiff contends that having the salaries of employees determined by the county executive fulfills the major purpose of the Charter Law, which is to create a more efficient and accountable government. Plaintiff argues that if the salaries are determined by the board, the county executive's duty to negotiate the contracts of employees, specifically mandated in N.J.S.A. 40:41A-36(i), would be circumvented. Plaintiff further contends that should the board be permitted to set salaries, it would be able to dismiss county employees, thereby accomplishing indirectly that which it is prohibited from doing directly. 3 Plaintiff's final argument is that the general statute relied upon by the board, N.J.S.A. 40A:9-10, which authorizes defendant to establish salary levels, is inapplicable since it is inconsistent with the Charter Law. The Charter Law contains a provision whereby the board is made responsible for setting the salaries for itself, the county executive, the county administrator and all department heads. N.J.S.A. 40:41A-100(d). Plaintiff contends that by designating those employees for whom the board may set salaries, all others are implicitly excluded from its control.

In support of its motion defendant contends that the authority to set salaries is vested in the board by virtue of its inherent power to adopt ordinances and resolutions it deems necessary for the good governance of the county. 4 N.J.S.A. 40:41A-41(b). Defendant argues that the setting of salaries is a totally legislative function, and that it, therefore, is within its purview. It further argues that the establishment of salary levels by plaintiff is contrary to the goal of a more accountable county government. It is contended by defendant that only some 50 to 70 of the 7,000 county employees would be affected by this decision, all others being represented by bargaining units in contract negotiations.

The novel question presented here is one of statutory construction. It is to be noted at the outset that the language of the Charter Law is not without its ambiguities. Nevertheless, I find that plaintiff is entitled to summary judgment. My conclusion in this regard is grounded upon what I perceive to be the plain legislative design which is to vest in the county executive the sole authority to effectuate and administer legislative policy as set by the board. Further, public policy considerations militate strongly in favor of the county executive's position.

I

Certain prefatory comments are in order. It is axiomatic that in construing a statute the role of the judiciary is to give effect to the intention of the Legislature. Monmouth Cty. v. Wissell, 68 N.J. 35, 342 A.2d 199 (1975); Mason v. Civil Service Comm'n, 51 N.J. 115, 238 A.2d 161 (1968); Asbury Park Bd. of Ed. v. Hoek, 38 N.J. 213, 183 A.2d 869 (1962); Harvey v. Essex Cty. Freeholder Bd., 30 N.J. 381, 153 A.2d 10 (1959). The legislative intent may be implied from the language of a statute or inferred on grounds of policy or reasonableness. Franklin Estate, Inc. v. Edison Tp., 142 N.J.Super. 179, 361 A.2d 53 (App.Div.), aff'd 73 N.J. 462, 375 A.2d 658 (1976); Harvey v. Essex Cty. Freeholders Bd., supra 30 N.J. at 392, 153 A.2d 10. In seeking the intent of the Legislature, any history which may be of aid must be consulted. State v. Madden, 61 N.J. 377, 294 A.2d 609 (1972). In this regard, the reports of special committees or commissions appointed to study and suggest legislation are considered valuable aids. American Fed'n of State, Cty., and Mun. Emps. v. Hudson Cty. Welfare Bd., 141 N.J.Super. 25, 35, 357 A.2d 67 (Ch.Div.1976); 2A Sutherland, Statutory Construction, § 48.11.

In this context it is significant that the legislative design in enacting the Charter Law was to provide each county with the flexibility to choose the form of government best suited to its characteristics, needs and preferences. 5 The legislative purpose underlying the County Executive plan was to assure the centralized professional administration of county government by vesting in a single elected official the power to administratively direct its operations. 6

It is against this backdrop that the statutory scheme must be construed. The Charter Law contains a clear statement on the subject of determining salaries only with reference to several high level positions. The board is responsible for fixing the compensation of its members, the county executive, the county administrator, and all department heads. N.J.S.A. 40:41A- 100(d). No mention is made, either in the statutes or in the legislative history, as to which governmental division is to establish the salaries of other county employees.

Under the expressio unius doctrine, it is generally held that where the Legislature makes express mention of one thing, the exclusion of others is implied. Continental Cas. Co. v. U. S., 314 U.S. 527, 62 S.Ct. 393, 86 L.Ed. 426 (1942); Gangemi v. Berry, 25 N.J. 1, 11, 134 A.2d 1 (1957). Thus, by designating specific high-level positions for which the board is expressly empowered to set salaries, a strong inference exists that the Legislature intended to so restrict that authority. Of course, the expressio unius doctrine, like all rules of statutory construction, is merely an aid to determine legislative intent and does not constitute a rule of law. Resnick v. East Brunswick Bd. of Ed., 77 N.J. 88, 389 A.2d 944 (1978); Reilly v. Ozzard, 33 N.J. 529, 166 A.2d 360 (1961). Nonetheless, given the intent of the Legislature to vest the county executive with such a broad range of powers, application of the doctrine to the instant case seems particularly appropriate.

Prior to enactment of the Charter Law the board, pursuant to statute, determined the salaries of all county employees. N.J.S.A. 40A:9-10. It is upon this general law that the board bases its contention. In order to be applicable, however, the general law must not be inconsistent with the Charter Law. N.J.S.A. 40:41A-26(a). The Legislature is presumed to be thoroughly conversant with its own enactments. Brewer v. Porch, 53 N.J. 167, 174, 249 A.2d 388 (1969); Ayres v. Dauchert, 130 N.J.Super. 522, 528, 328 A.2d 1 (App.Div.1974). Therefore, the fact that it enacted a statute specifying certain positions for which the board is to set salaries raises the inference that it considered N.J.S.A. 40A:9-10 to be inconsistent with the Charter Law. For these reasons, N.J.S.A. 40:41A-100(d) must be construed as a limitation upon the board's authority to determine salaries. The board's argument that the statute concerns only new positions is without merit. The board and the department head positions were all in existence prior to the Charter Law. In addition, this construction does not require an implied repeal of N.J.S.A. 40A:9-10 since that section remains in effect in counties which have not adopted the Charter Law. Angelo v. Shapiro, 168 N.J.Super. 459, 465, 403 A.2d 496 (Law Div. 1979).

II

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. 7 Therefore, the threshold question presented is whether the setting of salaries is an administrative or a legislative function.

In determining whether an act is administrative or legislative, several tests are generally employed. Matters of a permanent or general character are considered legislative, while acts which are temporary or routine are considered to be administrative. Cuprowski v. Jersey City, 101 N.J.Super. 15, 23, 242 A.2d 873 (Law Div. 1968). An act which states a rule of conduct or a course of policy is purely...

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