ROBERT W. LEVY, SR. v. CITY OF ATLANTIC CITY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0554-04T20554-04T2

ROBERT W. LEVY, SR.,

Plaintiff-Respondent,

v.

CITY OF ATLANTIC CITY,

Defendant-Appellant.

_______________________________________

 

Argued October 19, 2005 - Decided November 17, 2005

Before Judges Grall and Sapp-Peterson.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

L-3182-03.

Jeffrey J. Miller argued the cause for

appellants (Decotiis, Fitzpatrick, Cole

& Wisler, attorneys; Mr. Miller, of counsel;

Chrysanta K. Hentisz, on the brief).

Stephen Funk argued the cause for respondents (Jacobs & Barbone, attorneys; Edwin J. Jacobs, Jr., of counsel; Michael J. Malinsky, on the brief).

PER CURIAM

Defendant, City of Atlantic City, appeals from a grant of summary judgment in favor of plaintiff, Robert W. Levy, Sr., on cross-motions for summary judgment. Levy filed an action for declaratory judgment and in lieu of prerogative writs based upon the City Solicitor's decision to exclude winter earnings from the calculation of a lifeguard's salary for purposes of the Lifeguard Pension established pursuant to N.J.S.A. 43:13-23 to -29. In a written decision dated July 14, 2004, Judge Armstrong concluded that the Solicitor's interpretation was not consistent with the statute. We agree.

The material facts are undisputed. Levy has been employed as a member of Atlantic City's Beach Patrol for forty-three years. He presently serves as the Superintendent and Chief of the Beach Patrol.

The Beach Patrol is comprised of two units, a lifeguard unit and a boatyard unit. At the peak of the bathing season, the City employs as many as 161 lifeguards. During the off-season for bathing, the boatyard unit repairs and maintains rescue equipment including lifeboats, oars, lookout stands, rescue torpedoes, buoys and lifeguard medical stations. Presently, seven lifeguards work in the boatyard unit during the months preceding and following the May through September bathing season. All of the boatyard employees are also lifeguards who have supervisory authority over beach patrol employees and duties that include summer patrolling to ensure smooth operation of the lifeguard force. The repair maintenance work done by the small cadre of lifeguards who comprise the boatyard unit traditionally has been performed by lifeguards during the off-season.

The City Code recognizes that lifeguards are assigned to the boatyard unit. Under the heading "Beach Patrol Section," the Code lists jobs titles such as Assistant Chief Beach Patrol, Area Chief Beach Patrol, Academy Captain Instructor Beach Patrol, Lieutenant Beach Patrol and Lifeguard. Under the heading "Boathouse Section," the Code lists titles such as "Supervising Maintenance Repairer Painter/ Supervising Lifeguard 1," "Maintenance Repairer Carpenter/Supervising Lifeguard 2," "Maintenance Repairer Carpenter/Senior Lifeguard 1," and "Maintenance Repairer/Lifeguard." The titles have been recognized by the State Department of Personnel.

The lifeguard pensions at issue here are authorized and required by statute. N.J.S.A. 43:13-23 to -29; see City of Cape May v. Colosi, 325 N.J. Super. 288, 289 (App. Div. 1999); Paludi v. Ventnor City, 194 N.J. Super. 565, 570 (Law Div. 1984). The controversy in this case centers on whether the winter earnings of the lifeguards who work in the boathouse unit are credited to their pensions along with their summer earnings. In 1993, the City Solicitor advised that contributions to a lifeguard's pension were to be based upon all of a lifeguard's earnings, including those in the boatyard unit. In 2003, a second City Solicitor reached the opposite conclusion. On the basis of that advice, the City's payroll supervisor ceased deductions from the lifeguards' winter earnings.

N.J.S.A. 43:13-24 provides:

[A]ny member of the life guard force, whether employed as an officer or a guard, who has or shall have served on such force for a period of twenty years, and shall have attained the age of forty-five years, and for a period of ten years preceding his application has been continuously in such service, may . . . be retired upon half pay.

N.J.S.A. 43:13-23 defines the critical statutory terms. "'[A] year of service' shall consist of such part of the calendar year as the life guard force is normally employed." Ibid. (emphasis added). "'[Y]ear's salary' means the salary a life guard receives during the time of his normal employment in any calendar year." Ibid. (emphasis added).

N.J.S.A. 43:13-27 defines the City's obligation to build the pension fund. It requires the City to deduct four percent "from every payment of salary to each member of the life guard force in the city." N.J.S.A. 43:13-27a.

Interpretation of a statute begins with "an examination of the plain language." O'Connell v. State, 171 N.J. 484, 488 (2002). Under the plain terms of these statutes, a year's service is defined with reference to the seasons during which the "life guard force is normally employed." N.J.S.A. 43:13-23. But an employee's pension is based upon the salary of that employee "during the time of [the employee's] normal employment." Ibid. And, pension contributions are to be made based upon "every payment of salary to each member of the life guard force." N.J.S.A. 43:13-27a.

The combined job titles included in the City Code, and the City's practice of utilizing members of the lifeguard force to repair and maintain lifesaving equipment and structures, support Judge Armstrong's conclusion that a lifeguard's service during the off-season in the boathouse unit is service as "an officer or a guard" by a "member of the lifeguard force." N.J.S.A. 43:13-24. The statute defines "yearly salary" in terms of the individual employee's annual earnings, rather than the individual's annual earnings during the time when the "life- guard force is normally employed." Thus, nothing in the statute limits creditable salary to salary earned during the summer-bathing season.

 
Affirmed.

Pursuant to N.J.S.A. 43:13-28 a commission must be appointed to administer this pension, and Atlantic City has such a commission. Pursuant to N.J.S.A. 43:13-29, that commission is to adopt necessary rules and regulations. At oral argument we were advised that the commission has not adopted rules relevant to this question. See also N.J.S.A. 43:13-23 (where a lifeguard's "salary is payable on a per diem basis the pension commission may determine the length of service and the amount of the year's salary"(emphasis added)). Neither party has questioned the manner in which two City Solicitors have addressed these pension contributions so as to significantly alter benefits and obligations in the absence of commission action. Because "a party may file a declaratory judgment action seeking to interpret a municipal ordinance [or state law] without first exhausting the right to seek such an interpretation from" a local body, Honigfeld v. Byrnes, 14 N.J. 600, 603-04 (1954); Supermarkets Oil Co. v. Zollinger, 126 N.J. Super. 505, 507 (App. Div. 1974); Pullen v. South Plainfield Planning Bd., 291 N.J. Super. 303, 309-10 (Law Div. 1995), aff'd, 291 N.J. Super. 1 (App. Div. 1996), we do not consider the questions raised by the Solicitors' actions or the commission's failure to act.

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A-0554-04T2

November 17, 2005