JOHN P. CONWAY v. BOROUGH OF FLORHAM PARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2323-08T12323-08T1

JOHN P. CONWAY,

Plaintiff-Respondent/

Cross-Appellant,

v.

BOROUGH OF FLORHAM PARK,

MAYOR and COUNCIL OF THE

BOROUGH OF FLORHAM PARK,

Defendants-Appellants/

Cross-Respondents.

_______________________________________

 

Argued February 1, 2010 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2716-08.

Peter J. King argued the cause for appellants/cross-respondents (Cabana & King, L.L.C., attorneys; Mr. King, on the brief).

Daniel Antonelli argued the cause for respondent/cross-appellant (Law Offices of Daniel Antonelli, L.L.C., attorneys; Mr. Antonelli, of counsel and on the brief).

Edward J. Buzak argued the cause for amicus curiae New Jersey Municipal Management Association, Inc. (The Buzak Law Group, L.L.C., attorneys; Mr. Buzak and Susan L. Crawford, on the brief).

PER CURIAM

Defendants Borough of Florham Park and the Mayor and Counsel of the Borough (collectively "the Borough") appeal from an order entered by the trial court on December 30, 2008, which granted summary judgment to plaintiff John P. Conway on his wrongful termination claim and awarded him damages. Plaintiff cross-appeals from the court's order. For the reasons that follow, we affirm in part, reverse in part and remand for further proceedings on the appeal; and affirm on the cross-appeal.

I.

The relevant facts are undisputed. In June 2006, the Borough appointed plaintiff as its borough administrator and the parties executed an employment agreement which stated that plaintiff's appointment was for the period from June 20, 2006 through December 31, 2006. The Borough reappointed plaintiff for a one-year term beginning on January 1, 2007, and ending on December 31, 2007.

On November 12, 2007, the Mayor-elect informed plaintiff that he would not be reappointed in January 2008. This verbal notice was confirmed by letter dated December 6, 2007. On December 31, 2007, plaintiff turned in his keys and did not report to work after January 1, 2008.

At a meeting held on January 2, 2008, by a vote of five to zero, the Borough Council appointed another person to serve as borough administrator. The Borough of Berkeley Heights subsequently appointed plaintiff as its borough administrator and he began to serve in that capacity on April 1, 2008.

On September 16, 2008, plaintiff filed an action in lieu of prerogative writ in the Law Division. In his complaint, plaintiff alleged that the Borough had terminated his employment as borough administrator in violation of N.J.S.A. 40A:9-138. Plaintiff also alleged that the members of the Borough's governing body violated the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21 (OPMA), when they discussed his employment at a meeting from which the public was excluded.

Thereafter, the parties filed motions for summary judgment. The trial court considered the motions on December 5, 2008, and placed its decision on the record on that date. The court concluded that the Borough was entitled to summary judgment on plaintiff's OPMA's claims. The court further concluded that plaintiff was entitled to summary judgment on his wrongful termination claim.

The trial court found that the Borough had violated N.J.S.A. 40A:9-138 when it terminated plaintiff's employment because his removal was not approved by a two-third vote of the governing body. The court further found that Conway was entitled to three months salary, at a rate of $90,000 per annum, for the period from January 1, 2008 through April 1, 2008, as well as an additional three months of salary thereafter. The court also rejected plaintiff's claim for accrued vacation, sick and personal days after December 31, 2007.

The court entered an order dated December 30, 2008, memorializing its decisions on the motions. These appeals followed.

II.

The Borough argues that the trial court erred by entertaining plaintiff's action in lieu of prerogative writ because it had been filed more than forty-five days "after the accrual" of the action, as required by Rule 4:69-6(a). The Borough maintains that plaintiff's right to relief accrued on January 8, 2008, which was the date and another person was appointed borough administrator. As stated previously, plaintiff filed his complaint in the Law Division on September 16, 2008.

Rule 4:69-6(c) provides that the time for filing an action in lieu of prerogative writ may be relaxed "where it is manifest that the interest of justice so requires." Enlargement of the time for filing such an action has been allowed in "cases involving (1) important and novel constitutional questions; (2) informal or ex parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjudication or clarification." Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975). These grounds for relaxation are not exclusive. Cohen v. Thoft, 368 N.J. Super. 338, 346-47 (App. Div. 2004). Relaxation of the time limitations in Rule 4:69-6(a) depends upon a consideration of all of the relevant facts and circumstances. Ibid.

Here, the trial court found that the time requirements should be relaxed because plaintiff's action raised a matter of public concern. We agree. In our judgment, the trial court correctly determined that the public has a strong interest in having the court resolve the question of whether plaintiff was removed from his position as borough administrator in accordance with the applicable statutory requirements.

The trial court also found that relaxation of the time constraints in Rule 4:69-6(c) was warranted because plaintiff did not sleep on his rights. Again, we agree. The record shows that plaintiff's attorney promptly questioned the Borough's authority to terminate plaintiff's employment in the absence of a two-third vote of its governing body as required by N.J.S.A. 40A:9-138. Furthermore, after the Borough removed plaintiff from his position, plaintiff's counsel and the Borough's attorney engaged in negotiations to resolve the dispute. Plaintiff commenced his action shortly after it became clear that the matter could not be resolved.

We are satisfied that the trial court did not abuse its discretion by relaxing the requirement in Rule 4:69-6(a) that an action in lieu of prerogative writ be commenced within forty-five days of the accrual of the action.

III.

Next, the Borough argues that the court erred by finding that plaintiff's appointment and removal were subject to the requirements in N.J.S.A. 40A:9-136 to -138. We are convinced, however, that the trial court correctly determined that the plaintiff's appointment and removal were subject to these statutes.

N.J.S.A. 40:9-136 provides that the governing body of a municipality may create the position of municipal administrator "and delegate to him all or a portion of the executive responsibilities of the municipality." N.J.S.A. 40A:9-137 states in relevant part that the administrator's term of office "shall be at the pleasure of the governing body." In addition, N.J.S.A. 40A:9-138 states:

[t]he municipal administrator may be removed by a 2/3 vote of the governing body. The resolution of removal shall become effective [three] months after its adoption by the governing body. The governing body may provide that the resolution shall have immediate effect; provided, however, that the governing body shall cause to be paid to the administrator forthwith any unpaid balance of his salary and his salary for the next [three] calendar months following adoption of the resolution.

The Borough argues that these statutes do not apply here because it created the position of borough administrator in 1969, pursuant to N.J.S.A. 40:87-15, a statute later repealed but then provided that a municipality may appoint

a borough attorney, a borough engineer, . . . and such other officers as the council may deem necessary . . . . all of them shall hold office during the pleasure of the council. No officer shall be removed without being afforded an opportunity to be heard. Unless sooner removed, however, they shall hold office for one year and until their successors shall have qualified.

The Borough maintains that this statute governed plaintiff's appointment, rather than N.J.S.A. 40A:9-136 to -138, which were enacted in 1971. L. 1971, c. 200. We disagree.

In our view, the trial court correctly found that plaintiff's appointment and his removal were governed by N.J.S.A. 40A:9-136 to -138 rather than N.J.S.A. 40:87-15. Indeed, N.J.S.A. 40:87-15 was repealed by L. 1987, c. 379, which took effect on January 1, 1988. L. 1987, c. 379, 2. The 1987 legislation included N.J.S.A. 40A:60-7(a), which states that a "borough council may, by ordinance, delegate all or a portion of the executive responsibilities of the municipality to an administrator, who shall be appointed pursuant to N.J.S.A. 40A:9-136." We are therefore convinced the Legislature intended that, after the enactment of the 1987 legislation, municipal administrators would be appointed pursuant to N.J.S.A. 40A:9-136 and their removal would be governed by N.J.S.A. 40A:9-138.

The Borough further argues that, even if N.J.S.A. 40A:136- -138 apply, the termination of plaintiff's employment was proper because he was not "removed" from his position. The Borough notes that under N.J.S.A. 40A:9-137, an administrator serves "at the pleasure of the governing body." The Borough maintains that a governing body has the discretion under N.J.S.A. 40A:9-137 to limit the term of a borough administrator to one year.

Again, we disagree. Where, as here, the relevant statute provides that an appointee serves at the pleasure of the governing body, the governing body does not have the authority to appoint an official for a fixed term. Cabarle v. Governing Body of the Twp. of Pemberton, 167 N.J. Super. 129, 138-40 (Law Div. 1979), aff'd, 171 N.J. Super. 586 (App. Div. 1980). Accordingly, we conclude that the Borough did not have the discretion under N.J.S.A. 40A:9-137 to appoint plaintiff to a one-year term, and the Borough violated N.J.S.A. 40A:9-138 when it terminated plaintiff's employment because its governing body failed to adopt a resolution removing plaintiff from his position as borough administrator by a two-third vote.

IV.

We turn to the question of damages. The Borough contends that the trial court erred by awarding plaintiff his salary for the period from January 1, 2008, through March 31, 2008, plus an additional three months of salary thereafter. The Borough argues that if plaintiff was wrongfully discharged he should only receive three months salary, which should be mitigated by any income that plaintiff earned from other employment in those three months.

On the other hand, plaintiff argues that his term of office as borough administrator was never terminated in accordance with N.J.S.A. 40A:9-138. He therefore contends that he is entitled to three months of severance pay from January 1, 2008 through March 31, 2008, pursuant to N.J.S.A. 40A:9-138, and additional back pay pursuant to N.J.S.A. 40A:9-172 until such time as the Borough's governing body adopts a resolution approving his removal by the required two-third vote. Plaintiff concedes, however, that he assumed his position as borough administrator in Berkeley Heights on April 1, 2008, and his salary there is higher than the salary he was being paid by the Borough.

In our judgment, the trial court erred by awarding plaintiff salary from January 1, 2008 to March 31, 2008, plus an additional three months of salary thereafter. As stated previously, N.J.S.A. 40A:9-138 provides that a governing body may remove a municipal administrator by a two-third vote and may make the removal effective immediately. If it does, the administrator is entitled to be paid the balance of his unpaid salary, plus salary for the next three months. Ibid.

Here, the Borough's governing body did not adopt the resolution of removal. Therefore, plaintiff is not entitled to the three months of salary that the Borough would have been required to pay him if it had adopted a resolution providing for plaintiff's immediate removal as of January 1, 2008.

Instead, plaintiff is entitled to damages pursuant to N.J.S.A. 40A:9-172, which states that when a court finds that a municipal employee was unlawfully terminated or dismissed, the employee is "entitled to recover his salary from the date" of his wrongful termination or dismissal. Therefore, plaintiff is entitled to salary in the period from January 1, 2008 through March 31, 2008 because he began working in Berkeley Heights on April 1, 2008, and his salary there exceeds the salary that he was earning as the Borough's administrator.

Plaintiff argues, however, that the trial court erred by failing to award him accrued sick, vacation and personal time after December 31, 2007. Plaintiff asserts that is he entitled to be compensated for twenty unused vacation days, twelve unused sick days and four personal days in the form of salary, plus those days accrued as of December 31, 2007. We find no merit in these contentions.

By its terms, N.J.S.A. 40A:9-172 only requires payment of the employee's salary. We are not convinced that the municipality is required to pay the employee for unused vacation time, sick days or personal time, in addition to payment of his salary. If we concluded otherwise, we would be providing plaintiff with a windfall, since plaintiff will receive his salary for all work days from January 1, 2008 to March 31, 2008.

The Borough additionally argues that any damages awarded to plaintiff pursuant to N.J.S.A. 40A:9-172 for the period from January 1, 2008, through March 31, 2008, must be mitigated by the income he earned from other sources in that period. The Borough contends that, in that period, plaintiff performed professional work for a private entity and earned income.

We agree with the Borough that it is entitled to mitigation of damages. See White v. Tp. of North Bergen, 77 N.J. 538, 561-62 (1978) (holding that the right to salary under N.J.S.A. 40A:9-172 is subject to mitigation). Accordingly, we remand the matter to the trial court to determine the amount of income, if any, that plaintiff earned from other sources from January 1, 2008, through March 31, 2008, and to offset any such earning from the salary due to plaintiff for that period.

Affirmed in part, reversed in part and remanded for further proceedings on the appeal; and affirm on the cross-appeal. We do not retain jurisdiction.

 

(continued)

(continued)

12

A-2323-08T1

 

March 5, 2010