Voges v. Borough of Tinton Falls

• Decision Date: 15 November 1993
• Citation: Voges v. Borough of Tinton Falls, 633 A.2d 566, 268 N.J.Super. 279 (N.J. Super. App. Div. 1993)
• Parties: Gerd VOGES, Plaintiff-Appellant, v. BOROUGH OF TINTON FALLS, Mayor and Council of the Borough of Tinton Falls, Anthony Muscillo, Borough Administrator, Borough of Tinton Falls, Louis Raupp, Construction Official, Borough of Tinton Falls, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 279

268 N.J.Super. 279

633 A.2d 566

Gerd VOGES, Plaintiff-Appellant, v. BOROUGH OF TINTON FALLS, Mayor and Council of the Borough of Tinton Falls, Anthony Muscillo, Borough Administrator Borough of Tinton Falls, Louis Raupp, Construction Official Borough of Tinton Falls, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Sept. 29, 1993.

Decided Nov. 15, 1993.

Paul A. Massaro, Bloomfield, for appellant.

Sharon Handrock Moore, Clinton, for respondents (Gebhardt & Kiefer, attorneys; Ms. Moore, on the brief).

Before Judges LONG and LANDAU.

The opinion of the court was delivered by

LANDAU, J.A.D.

Plaintiff Gerd Voges appeals from a judgement which dismissed his complaint in lieu of prerogative writs following a bench trial in the Law Division. Voges, employed as the Tinton Falls Plumbing Subcode Official, sought damages arising from allegedly improper reduction of his hours and salary to part-time status, and asserted civil rights claims under 42 U.S.C. § 1983 against the Borough of Tinton Falls (Borough); its Mayor and Council; Anthony Muscillo, the Borough Administrator; and Louis Raupp, the Construction Official (collectively "respondents").

Voges left a similar position in another municipality and on April 1, 1988, accepted appointment to a four-year term as the Borough's full-time plumbing subcode official. The appointment was made pursuant to the State Uniform Construction Code Act, N.J.S.A. 52:27D-119 to -141 (hereinafter U.C.C.A.). Voges worked 40 hours per week until 1989 when his work week was changed to 37 1/2 hours, and then again reduced in 1990 to 35 hours. Despite the reduction in hours, his initial $40,000.00 annual salary was increased by seven percent annually, commensurate with increases given to other Borough officials.

The plumbing subcode official is part of the Borough's Division of Code Enforcement. The Division is supposed to be self-funded by revenues generated from fees charged for inspections, permits, and plan reviews. Owing to an expected decline in construction activity, respondents reduced the Division's budget for 1991.

On December 17, 1990, appellant was notified, in writing, that his work hours would be reduced from thirty-five to twenty-one hours per week, effective January 1, 1991, with a corresponding salary reduction. The reduction was fixed at twenty-one hours per week in order that Voges, who had been ill, could retain his health benefits. The work hours of the building subcode official and the electrical subcode official were reduced at that time. Later, the building inspector and one secretary were also reduced to part-time status. All of these jobs were part-time at the time of trial.

Voges demanded a hearing on the reduction of hours pursuant to N.J.S.A. 52:27D-126b. Although the Borough took the position that a hearing was not required under the U.C.C.A., Voges received an informal hearing before the Borough Administrator, respondent Anthony Muscillo, seven weeks after the reduction in his salary and hours. He objected to Muscillo acting as the hearing officer because Muscillo himself had made the decision to put appellant on part-time status. The informal hearing consisted of a private meeting between Voges and Muscillo, over Voges' objection that the hearing should be public. Muscillo rendered an opinion denying appellant's restoration to full-time service.

Voges then initiated this action, seeking restoration to full-time status, retroactive back pay, compensatory and punitive damages for violations of 42 U.S.C. § 1983, as well as attorneys fees pursuant to 42 U.S.C. § 1988.

The trial judge found, as a matter of law, that N.J.S.A. 52:27D-126b does not afford appellant protection from a reduction in hours and compensation, because it speaks only to "removal" from office and not to reductions in compensation. The judge also found as a fact that the Borough reduced appellant's hours and salary in good faith and for economic reasons. Accordingly, he ruled that a predetermination hearing was not required before the decision to reduce appellant's hours and compensation became effective, and dismissed Voges' complaint.

Upon careful study of the record, in light of the arguments raised by appellant, we affirm dismissal of the complaint, but for different reasons than those cited by the trial judge.

This case raises the novel question whether N.J.S.A. 52-27D-126b affords to a person appointed to a four year term as a full- employee protection from a reduction in his salary and work hours during that term. We hold that it does, except if the reduction is shown to be attributable to a good faith effort to cut expenditures during a period of fiscal constraint.

In pertinent part, N.J.S.A. 52-27D-126b provides:

A construction official or subcode official in a noncivil service municipality shall be appointed for a term of 4 years and shall, upon appointment to a second consecutive term or on or after the commencement of a fifth consecutive year of service, including years of service in an equivalent job title held prior to the adoption of the State Uniform Construction Code, be granted tenure and shall not be removed from office except for just cause after a fair and impartial hearing.

[ N.J.S.A. 52:27D-126b

(emphasis added) ].

This court's fundamental duty in construing a statute is to ascertain the purpose and intent of the Legislature. We may freely allude to the legislative history to discern the sense and meaning of the language used. Dept. of Health v. Sol Schnoll Dressed Poultry Co., 102 N.J.Super. 172, 176, 245 A.2d 532 (App.Div.1968). "Statutes can not be read in a vacuum void of relevant historical and policy considerations and related legislation." Helfrich v. Hamilton Tp., 182 N.J.Super. 365, 70, 440 A.2d 1366 (App.Div.1981) (citations omitted). We must read the words of the statute in accordance with their plain and ordinary meaning, see, Service Armament Co. v. Hyland, 70 N.J. 550, 556, 362 A.2d 13 (1976), and afford a construction which considers these words in the context of the entire statute, ascribing to them a common-sense meaning which advances the legislative purpose. See Cressey v. Campus Chefs, Div. of CVI Service, Inc., 204 N.J.Super. 337, 342-43, 498 A.2d 1274 (App.Div.1985).

In enacting the U.C.C.A. the Legislature sought to establish uniform statewide building and construction standards. N.J.S.A. 52:27D-120; N.J. State Plumbing Inspectors Ass'n v. Sheehan, 163 N.J.Super. 398, 401, 394 A.2d 1244 (App.Div.1978), certif. denied, 79 N.J. 484, 401 A.2d 239 (1979). To that end, enforcement of the U.C.C.A. was placed under the general administration and supervision of the New Jersey Department of Community Affairs. N.J.S.A. 52:27D-124. Only officials licensed by the Commissioner of Community Affairs are permitted to administer and enforce the code. See N.J.A.C. 5:23-5.1 to -5.5 as to licensing and N.J.A.C. 5:23-4.4 to -4.5 as to duties. As we stated in N.J. State Plumbing Inspectors Ass'n, supra, "[a]fter many years of local control by literally hundreds of municipalities, with varying construction regulations and enforcement policies, the need for uniformity provided by the act is indeed self-evident." 163 N.J.Super. at 401, 394 A.2d 1244.

Moreover, through the U.C.C.A. the State has preempted the entire field of code enforcement. J.P. Properties, Inc. v. Macy, 183 N.J.Super. 572, 576, 444 A.2d 1131 (Law Div.1982). For example, the Department of Community Affairs has the exclusive right to discipline officials by suspending or revoking their license. Ibid. Each subcode official (building subcode, electrical subcode, plumbing subcode, and fire protection subcode) is vested with the sole responsibility of carrying out inspections and plan reviews for their particular subcode area. N.J.S.A. 52:27D-126. This legislative scheme evidences a strong State policy to establish uniformly high professional standards for construction officials and inspectors charged with Code enforcement and to ensure the advancement of this policy by freeing code officials from the possibility of local pressures or intimidation.

Protection of local code officials from arbitrary interference or removal in the performance of their duties during their terms in office was part of the legislative intent in adopting U.C.C.A. As we interpret N.J.S.A. 52:27D-126b, a subcode official must be appointed for a four year term and can only be removed from office during the term for just cause after a fair and impartial hearing, as if tenure under the statute had been achieved. "It is clear that the legislative intent was to insure the appointment of licensed professional municipal building code officials and to ensure that their tenure in office be free of or influenced by local politics." DeStefano v. Washington Tp., 220 N.J.Super. 273, 277, 531 A.2d 1090 (Law Div.1987); see also Helfrich, 182 N.J.Super. at 369-74, 440 A.2d 1366; Golaine v. Cardinale, 142 N.J.Super. 385, 393-94, 361 A.2d 593 (Law Div.1976), aff'd, 163 N.J.Super. 453, 395 A.2d 218 (App.Div.1978) certif. denied, 79 N.J. 497, 401 A.2d 252 (1979) (Public policy demands that officers be protected in the performance of their offices during their term). Moreover, an October 7, 1975, statement issued by the Governor in connection with his signing of the U.C.C.A. is instructive:

The bill also is intended to improve the standards of code enforcement. It sets forth qualifications for local code enforcement officials, but it provides protection for those now holding office.

The trial judge's restrictive reading of the "no removal except for just cause" provision to exclude mid-term reduction in hours and compensation offers too easy a means for frustrating the legislative goals. Inasmuch as anti-conflict restrictions do not allow local code officials to engage in private employment in the municipality for which they work as code officials or in any adjacent municipalities, ...