JEFFREY FISCHER v. ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE
                      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
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                              SUPERIOR COURT OF NEW JERSEY
                                              APPELLATE DIVISION
                                              DOCKET NO. A-1736-16T3
JEFFREY FISCHER,

        Plaintiff-Respondent,

v.

ATTORNEY GENERAL OF THE STATE
OF NEW JERSEY,

        Defendant-Appellant,

and

NEW JERSEY DEPARTMENT OF EDUCATION
and HALEDON BOARD OF EDUCATION,1

        Defendants.


              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-
              4430-15.

              Valentina M. DiPippo, Deputy Attorney General,
              argued the cause for appellant (Gurbir S.
              Grewal, Attorney General, attorney; Melissa H.



1
   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
            brief).


PER CURIAM

     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

reverse.

     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

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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 
N.J.S.A.

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.            
N.J.S.A. 19:3-

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

or not.    
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.


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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.


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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

v. Goodwin, 
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

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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
district;

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
staff;

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
budget;

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


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            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

do so.

      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.

      Reversed.




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