Vilmo DiPaolo v. Passaic County Board of Chosen Freeholders, etc., et al.

SYLLABUS
 

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Vilmo DiPaolo v. Passaic County Board of Chosen Freeholders, etc., et al. (A-7-99)

 
Argued February 1, 2000 -- Decided March 1, 2000

PER CURIAM.

[Note: The Supreme Court did not write a full opinion in this matter. It relied on the decision of the Appellate Division, which is the source of the summary of the case.]

On December 14, 1994, the Republican-controlled Board of Freeholders in Passaic appointed Vilmo DiPaolo County Adjuster, giving him a two-year appointment that expired on December 30, 1996. DiPaolo remained in the position without a formal appointment through December 1997.

In the November 1997 election, control of the Board shifted to the Democrats. On December 17, 1997, the outgoing Republican Board passed a resolution appointing DiPaolo to a five-year term as County Adjustor. On February 4, 1998, the new Board adopted a resolution rescinding the prior appointment. On April 9, 1998, the new Board adopted a reorganizing resolution that required the Adjustor to be an attorney. DiPaolo did not meet that requirement, so he was terminated on April 15, 1998.

DiPaolo sued to validate his five-year appointment and for reinstatement to the position of County Adjustor. The trial court invalidated the reorganizing resolution of the Board and reinstated DiPaolo under his five-year appointment. On appeal, the Appellate Division reversed, holding that there was no authority under the law for the Board to have appointed DiPaolo to a term of years.

The Supreme Court granted DiPaolo's petition for certification.

HELD: The judgment is affirmed substantially for the reasons expressed in the opinion of the Appellate Division. The five-year appointment of plaintiff as County Adjustor by the Board of Freeholders was an ultra vires act. Plaintiff was, therefore, serving at the pleasure of the Board. The current Board was under no obligation to recognize or continue plaintiff's five-year term as Adjustor.

1. The governing statute (N.J.S.A. 30:4-34) does not set forth a term of office for a County Adjustor and does not authorize the appointing authority to set a term.

2. Appointment to public employment is governed by statutory authority rather than by resort to simple contract law involving employers and their employees.

3. Because DiPaolo had not completed five years of continuous service when he was terminated, he did not have tenure in the position. He was subject to removal at the pleasure of the appointing authority.

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE PORITZ and JUSTICES O'HERN, STEIN, COLEMAN, LONG, VERNIERO, and LaVECCHIA join in the Court's opinion.

SUPREME COURT OF NEW JERSEY
A- 7 September Term 1999

VILMO DI PAOLO,

Plaintiff-Appellant,

v.

PASSAIC COUNTY BOARD OF CHOSEN FREEHOLDERS, COUNTY OF PASSAIC, PETER EAGLER, individually and as Freeholder, GEORGIA SCOTT, individually and as Freeholder, LOIS CUCCINELLO, individually ans as Freeholder, JAMES GALLAGHER, individually and as Freeholder,

Defendants-Respondents,

and

Several JOHN DOES and JANE DOES, defendants whose present names are unknown,

Defendants.
 

PAT DIIANNI, GEORGE H. TRINKLE, III, and THOMAS KAMPHAUSEN, as Taxpayers,

Plaintiffs,

v.
 
COUNTY OF PASSAIC and PASSAIC COUNTY FREEHOLDERS, a body politic of the State of New Jersey and VILMO DI PAOLO as an indispensable party,

Defendants.

Argued February 1, 2000 -- Decided March 1, 2000

On certification to the Superior Court, Appellate Division, whose opinion is reported at 322 N.J. Super. 487 (1999).

James V. Segreto argued the cause for appellant (Segreto & Segreto, attorneys).

Matthew Malfa, Assistant County Counsel, argued the cause for respondents (William J. Pascrell, III, Passaic County Counsel, attorney).

PER CURIAM

The judgment is affirmed, substantially for the reasons expressed in Judge Collester's opinion of the Appellate Division, reported at 322 N.J. Super. 487 (1999).
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, STEIN, COLEMAN, LONG, VERNIERO, and LaVECCHIA join in this Court's opinion.

SUPREME COURT OF NEW JERSEY
 

NO. A-7

SEPTEMBER TERM 1999
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court

VILMO DiPAOLO,
Plaintiff-Appellant,

v.

PASSAIC COUNTY BOARD OF CHOSEN FREEHOLDERS, et al.,
Defendants-Respondents,

and

SEVERAL JOHN DOES, et al.,
Defendants.

DECIDED March 1, 2000 Chief Justice Poritz

PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY DISSENTING OPINION BY
CHECKLIST
AFFIRM CHIEF JUSTICE PORITZ X JUSTICE O'HERN X JUSTICE STEIN X JUSTICE COLEMAN X JUSTICE LONG X JUSTICE VERNIERO X JUSTICE LaVECCHIA X TOTALS
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