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APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1736-16T3
ATTORNEY GENERAL OF THE STATE
OF NEW JERSEY,
NEW JERSEY DEPARTMENT OF EDUCATION
and HALEDON BOARD OF EDUCATION,1
Argued April 18, 2018 — Decided May 30, 2018
Before Judges Koblitz and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No. L-
Valentina M. DiPippo, Deputy Attorney General,
argued the cause for appellant (Gurbir S.
Grewal, Attorney General, attorney; Melissa H.
Plaintiff dismissed Haledon from the litigation on January 5,
2016. The trial court dismissed the New Jersey Department of
Education on December 2, 2016.
Raksa, Assistant Attorney General, of counsel;
Valentina M. Di Pippo, on the brief).
Stephen J. Edelstein argued the cause for
respondent (Schwartz Edelstein Law Group, LLC,
attorneys; Stephen J. Edelstein, on the
In November 2013, Jeffrey Fischer was elected to the
Manchester Regional High School Board of Education (Manchester
Board) for a three-year term expiring in January 2017. In November
2015, Fischer was elected to the Haledon Board of Education
(Haledon Board), serving grades K-8, for a three-year term
beginning in January 2016. Manchester Regional High School
District includes the Haledon geographic area, so that Haledon
students go on to attend Manchester Regional High School. Fischer
sought a declaratory judgment that he could simultaneously hold
both elected offices in spite of
N.J.S.A. 19:3-5.2, which prevents
dual office-holding. The trial court found an ambiguity in the
statute and issued a November 15, 2016 order granting relief.
Based on our de novo review of the statute, we disagree and
On December 31, 2015, Fischer filed a complaint and order to
show cause seeking a court order declaring that he could hold
seats on both school boards "immediately," in order to be sworn
into the Haledon Board on January 5, 2016. That same day, the
court denied his request for temporary relief and Fischer resigned
from the Manchester Board and was sworn into the Haledon Board.
Fischer was elected again to the Manchester Board on November
8, 2016, while still serving on the Haledon Board, thus serving
on two boards simultaneously. The court determined that
19:3-5.2 is ambiguous and the legislative intent of the statute
was to prohibit the collection of two salaries and two pensions.
The court also mentioned the desire to honor the will of the
voters, considering Fischer ran unopposed for the Manchester
School Board the second time.
N.J.S.A. 19:3-5.2 was approved by the New Jersey Legislature
on September 4, 2007, effective February 1, 2008.
5.2(a) states: "For elective public office other than as provided
in [N.J.S.] 19:3-5 or N.J.S. 40A:9-4, a person elected to public
office in this State shall not hold simultaneously any other
elective public office."
N.J.S.A. 19:3-5 identifies certain
federal, State and local "incompatible offices" that cannot be
held simultaneously, regardless of whether the offices are elected
N.J.S.A. 40A:9-4(2) prohibits the practice of holding an
elective county office and an elective municipal office at the
same time, but permits members of the Legislature to simultaneously
hold "any appointive office or position in county or municipal
government." Pursuant to the definitions included in N.J.S.A.
19:1-1, "'any election' includes all primary, general, municipal,
school and special elections . . . ." (Emphasis added.)
N.J.S.A. 18A:12-152 provides a process for filling vacant
school board seats, including when the vacancy occurs due to the
absence of candidates for election.
N.J.S.A. 18A:12-15(a). Thus,
necessity did not require that Fischer serve on two boards.
Fischer argues on appeal that election laws should be
"liberally construed" as to not "render an election void for
technical reasons." N.J. Democratic Party, Inc. v. Samson,
175 N.J. 178, 183 (2002).
"The Legislature is presumed to be thoroughly conversant with
its own legislation and the judicial construction placed thereon."
Chase Manhattan Bank v. Josephson,
135 N.J. 209, 239-40 (1994)
(quoting Quaremba v. Allan,
67 N.J. 1, 14 (1975)). "The court
cannot write in an additional qualification which the legislature
pointedly omitted in drafting its own enactment, or engage in
2 N.J.S.A. 18A:12-15(a) states:
Vacancies in the membership of the board [of education] shall be
filled as follows:
a. By the county superintendent, if the vacancy is caused by the
absence of candidates for election to the school board or by the
removal of a member because of lack of qualifications, or is not
filled within 65 days following its occurrence.
conjecture or surmise which will circumvent the plain meaning of
the act." DiProspero v. Penn,
183 N.J. 477, 480 (2005).
We review issues of statutory construction de novo. State
224 N.J. 102, 110 (2016). Analysis begins with the
plain language of the statute, which is the best indicator of the
legislative intent. R.G. v. R.G.,
449 N.J. Super. 208, 218 (App.
Div. 2017). The court "ascribe[s] to the statutory words their
ordinary meaning and significance." DiProspero,
183 N.J. at 492.
The court's function is not to "presume that the Legislature
intended something other than that expressed by way of the plain
language." Brugaletta v. Garcia,
448 N.J. Super. 404, 412 (App.
Div. 2017). Where the plain language "leads to a clear and
unambiguous result, then the interpretive process should end,
without resort to extrinsic sources." Sterling Laurel Realty, LLC
v. Laurel Gardens Co-Op, Inc.,
444 N.J. Super. 470, 476 (App. Div.
2016) (quoting State v. D.A.,
191 N.J. 158, 164 (2007)).
Fischer correctly points out that
N.J.S.A. 18A:38-8.1, which
is not explicitly referenced in
N.J.S.A. 19:3-5.2 as an exception
to the statute, requires limited dual-office holding where one
school district sends students to another school district.
N.J.S.A. 18A:38-8.1 states:
[I]n a school district which is receiving
pupils from another district or districts
pursuant to N.J.S. 18A:38-8, there shall be
an additional member [of the board] as
provided pursuant to section 2  of this act
to represent the board of education of each
sending district. Any additional member shall
be a member of the board of education of a
sending district designated annually by the
board of that district and shall be eligible
to vote on the following matters before the
receiving district board of education:
a. Tuition to be charged the sending district
by the receiving district and the bill lists
or contracts for the purchase, operation or
maintenance of facilities, equipment and
instructional materials to be used in the
education of the pupils of the sending
b. New capital construction to be utilized by
sending district pupils;
c. Appointment, transfer or removal of
teaching staff members providing services to
pupils of the sending district, including any
teaching staff member who is a member of the
receiving district’s central administrative
d. Addition or deletion of curricular and
extracurricular programs involving pupils of
the sending district;
e. Any matter directly involving the sending
district pupils or programs and services
utilized by those pupils;
f. Approval of the annual receiving district
g. Any collectively negotiated agreement
involving employees who provide services
utilized by sending district pupils;
h. Any individual employee contracts not
covered by a collectively negotiated
agreement, if those employees provide or
oversee programs or services utilized by
sending district pupils; and
i. Any matter concerning governance of the
receiving district board of education
including, but not limited to, the selection
of the board president or vice-president,
approval of board bylaws, and the employment
of professionals or consultants such as
attorneys, architects, engineers, or others
who provide services to the receiving district
board of education.
The statute directing a school board member of a sending
district to sit on the board of a receiving district to consider
primarily issues involving the sending district does not make the
statute prohibiting dual service ambiguous. School board members
may not be elected to two school boards, nor sit simultaneously
on two boards absent statutory authority.
The Legislature specifically exempted volunteer board members
of fire districts from the dual-office holding restriction.
N.J.S.A. 40A:9-4(6). The Legislature could have included unpaid
school board members as well in this exemption, but chose not to
The statute prohibiting service in more than one elected
office is not ambiguous. The Legislature may amend the statute
if convinced a change is appropriate.