*1 796 A.2d MERLINO, PLAINTIFF-RESPONDENT, ANTHONY v. BOROUGH PARK, OF MIDLAND MAYOR AND THE COUNCIL OF BOR PARK, DUGAN, OUGH OF MIDLAND F. MICHELLE BOROUGH ADMINISTRATOR, HEEREMA, DAVID CONSTRUCTION OFFI CIAL, BUILDING CODE SUB OFFICIAL AND BUILDING IN SPECTOR, DEFENDANTS-APPELLANTS,JOHN DOE II (FICTITIOUS PERSONS), X THROUGH DEFENDANTS. Argued November 2001 Decided March 2002. *3 B. Regan argued Thomas Hanrahan and T. Robert the cause (.Hanrahan Regan, and Robertelli and Mr. appellants attor- neys). A.
Paul argued Massaro respondent. the cause for opinion by of the Court was delivered LaVECCHIA, J. 52:27D-126(b), appeal meaning
At issue in this is the of N.J.S.A. governing a statute the of conferral tenure on construction code particularly, officials. More we are called on to determine wheth- Anthony Merlino achieved tenure as the Official er Code Borough four-year a term Park when he served second of Midland day he not. in service. hold that did after a ten break We
I. complaint a in lieu The case arose when Merlino filed Park prerogative against Borough writs officials of the of Midland body) (collectively governing alleging unlawful termination employment employment code breach of his his as official and essence, he claimed that achieved tenure contract. Merlino improperly was fired. following
A which were established. trial ensued at facts appointed four-year as May Merlino was to a term On official, official, inspec- building building construction sub-code body. began His term 1990 and tor June expire expiration of Merlino’s was to on June 1994. As the appeared public meeting govern- at a approached, term he ing body reappointed. At the and indicated his desire to be only governing body specific meeting, one member of voiced However, majori- complaints regarding performance. Merlino’s performance ty Merlino’s of the members were not convinced that no should receive tenure. there was was such he Because job, an to other candidate for because four-year give opportuni- without tenure would it the second term ty changes performance recognize improvements Merlino’s occurred, they governing body proposed compromise. if Braunius, governing body According Councilperson dis- pros performance and cussed the and cons of Merlino’s decided *4 give by allowing giving hiatus him him a second chance before Councilperson Walker stated new without tenure. ... it “not matter choice. no [Merlino had] that was choice a take leave it[ it or it situation.” ][was] meeting, Councilper- After the issue at the closed was discussed Duffy plan Specifically, plan son related the to Merlino. 3,1994, day provided resign Merlino effective June that would expired appointed his term of office and he would be to a new Couneilperson term to commence Duffy on June 1994. testi- plan grateful. fied that Merlino understood the and appeared to be Although equivocated Merlino over trial whether he understood appointed sign that he would not if be to a new term he did not resignation, acknowledged rejected he he could have plan and awaited the results of the vote.
Merlino that he testified consented the terms of the Council. Duffy He did Couneilperson admitted that he not ask for more plan attorney time think about the or to seek from advice an p.m., other At Couneilperson Duffy advisor. about 11:00 after Merlino, plan joined meeting discussed the with in both Approximately Council governing Chambers. ten members of the body present. They explained were to Merlino that he lacked support reappointment proposed resigna- as a his solution subsequent appointment four-year tion and to a new term after a trial, At acknowledged hiatus. Merlino that he realized that his resignation Indeed, would him not to cause be afforded tenure. date, expiration we note that because an Merlino’s initial term had resignation actually purpose his served no discernible other than concerning to eliminate doubt his lack of “holdover” status. governing Merlino body insisted the vote in resolution guarantee years order to that he would receive as a four more signed resignation. code official before he the letter of 121-94B, governing body May enacted Resolution No. dated provides, pertinent part: there will exist a WHEREAS, vacancy of Construction Official as of position 13,1994; June IT NOW, THEREFORE, BE RESOLVED, Merlino be and Anthony (4) as Construction for a four term, Official hereby appointed year pursuant N.J.S.A. 52:27D-136 term [sic], effective June which will on June expire 12,1998; resolution, body passed After the signed Merlino resignation my hereby resign position the letter of that stated: “I Official, 3,1994.” of Construction effective June *5 began the Bor- his term as Merlino new On June years. for the next four ough’s and worked Construction Official term, requested that his expiration of Merlino that Prior the for placed the schedule discus- appointment be on Council’s third 1998, body governing met to discuss May the sion. On meeting. present was at the Vari- reappointment. He Merlino’s body complaints regard- addressed governing ous members discussion, the members ing performance and after the Merlino’s reappoint him. Merlino received unanimously determined not to in a governing body’s letter notice of the determination written letter, stating had May responded that he 1998. He dated hearing. or a tenure and demanded either reinstatement achieved lawsuit followed. This trial, in favor the the the trial court ruled
At the conclusion of
entirety,
body
complaint
Merlino’s
in its
governing
and dismissed
court
that:
prejudice.
with
The
found
gave
governing
suggested
it
the
the
relief that
this
body
plaintiff
primary
plan,
his
was
then shame
was
If
relief
wanted,
he
that
reappointment.
primary
having
agenda.
governing
was
But the
plan
that hidden
body’s
plaintiff
[sic]
in what
it would
it’s
intent was
do;
unmistakable
it would
deprive,
deprive
obtaining
But he
a valuable
tenure at that time.
received
appoint-
the plaintiff
chance____
given
exchange
he was
the second
therefore,
ment in
overborne,
Mr.
was
that undue or unfair pressure
I
not find that
Merlino’s will
do
brought
risk
risk,
was in some
of a
the
was
to bear. This
settlement
respects
being
governing
in
the
not to
that
would vote
the absence of
and vote
body
plan
the
obtaining
he was aware he was
Plaintiff obtained
certainty;
reappoint.
night,
coercion,
he
out to
that
was no
obtained what
set
obtain
there
he
certainty,
obligation
was no
on the
duress,
municipality
there was no
there
part
him
more time
have
consult with
it,
that if
want
you
you may
you may
advise
an attorney.
although
.,.
bargaining
[P]laintiff
not in a
unfair
because
materially
was
position,
governing
makes
could have
body
decision[,]
plaintiff
it’s true that the
along
go
[It
not
and let’s where the votes fall.
time said I do
with
see
plan
being would
have
out the
Mr. Merlino wanted
he
way
plus,
plus
turned
may]
in
would have had tenure.
have been
without
break
service and he
reappointed
that____
have known
But
could
nobody
I
abstract
as
was neither intra
conclude ...
plan
implemented
Mr.
did
have
vires,
vires nor ultra
Merlino therefore
not
tenure May
not to
discretionary
June
and the
decision of the
body
reappoint
not
not
of either the
unreasonable,
him was
was
violative
arbitraiy, capricious],]
regulations,
State Uniform Construction Code
its
Act,
law,
state common
federal
*6
organic
common
federal
or
constitutional
law,
law[,]
nor
statutory
any
provision
any
natural law.
appealed.
published opinion,
Merlino
In a
Borough
v.
Merlino
Park,
436,
(2001),
Midland
338 N.J.Super.
two issues: whether Merlino achieved tenure and whether he is
granted
entitled to
fees.
counsel
We
certification. 169 N.J.
(2001).
8
II.
entirely by
governed
“The
tenure
created and
right to
is
Dist.,
State-Operated
v.
Sch.
286
statute.” Breitwieser
633, 637,
(citing
supra, 90
(App.Div.1996)
Spiewak,
9 parties agree purport The that of that statute is at the heart of governing body argues ease. this The Merlino did not serve two consecutive within meaning terms N.J.S.A. 52:27D- 126(b) interruption because of the his between first and second terms; it prohibit- that the took relative actions to Merlino are not statute; by ed that if those actions are deemed ultra vires discourage problem by it would solving public creative entities to good. the detriment public Merlino he provid- counters that met both standards statute; achieved, waived, ed in the that once tenure cannot be over; bargained forfeited governing body’s and that the action requiring ten-day in reappoint- break service as a condition of public ment policy undermining violates code enforcement and subjecting political pressure. code officials meaning
“It
is fundamental
‘the
a statute must
framed,
...
sought
language
be
act
which the
is
and if
plain
that is
...
the sole function of the courts is to enforce it
according to its terms.’” Russell v.
Brook
Saddle
Restaurant
186, 188,
Corp., 199 N.J.Super.
(App.Div.1985)
A.2d
Co.,
(quoting
548, 556,
Sheeran v. Nationwide Mutual
80 N.J.
Ins.
(1979)).
language
A .2d399 52:27D~126(b) straightforward. first clause of N.J.S.A. It provides four-year official appointed a code is to be for a *8 Likewise, language term. the of the clause of the second stat- “shall, upon appointment to a term ... second consecutive be ute — 52:27D-126(b). granted unequivocal. If tenure” —is N.J.S.A the official, body to confer the chooses tenure on code it by reappointing does so him or her to a “second consecutive” four- year term.
The notion of what consecutive is well-settled. It means break.” without “an interval or Webster’s Third New Internation- 10 (1993). Indeed, City Dictionary in Casamasino
al
482
of
333,
(1999),
specifically
730
we
Jersey City, 158
A .2d 287
N.J.
“any
be
break in
acquire tenure there cannot
service
noted that to
re-appointment,”
initial
and the
between the
“[ajbsent
assessors,
jus-
statutory
provision,
holdover
tax
like
a
re-appointed
judges,
not
and confirmed
tices
who have
been
day
full
must
the office.” Id.
the
of their first
term
vacate
last
added).
words,
353,
(emphasis
acquire
other
at
A official be for a term 4 and shall ... on construction ... shall of appointed years including or a fifth of service, after the commencement of consecutive of year years job in an title held to the service State Uniform equivalent prior adoption tenure____ granted Construction be Code, added).] [(emphasis Westwood, Borough In Cutler v. 295 of (1996), denied, 349-50, A.2d 44 A.2d 149 N.J. 693 certif. (1997), identify parsed language, the Appellate Division ing ambiguity “on after”. an of an in the term On examination statute, history legislative of court found that Legislature “grandfather” was concerned about the need to offi performed equivalent jobs prior cials who the enactment of Thus, interpreted A.2d “on UCCA. Id. 44. court service,” year or after the commencement a fifth consecutive years applying only as “if if it includes in an service
n words, 348-50, job 44. In other equivalent title.” Id. at 685 A.2d year” language the “fifth consecutive is not a holdover route to tenure, grandfather allowing prior but rather a limited clause appointment service to be factored into the tenure calculation on agree analysis We with the Cutler and con- under UCCA. that, appointment by body, that clause clude merely preserves longevity rights who were of individuals job serving equivalent in an at the time of enactment of the title applicability only UCCA. It has no this case. The road tenure for Merlino was an to a second consecutive term.
By dating
reappointment
days after
Merlino’s
to take effect ten
term,
parties mutually agreed to a
the end of his first
break
appointment.
preventing acquisition
upon
of tenure
service
legitimacy
challenges
Merlino now
and effectiveness of
First,
actually
action.
he claims that he
achieved tenure under
Spieivak.
disagree.
Spieivak,
We
the Board of Education
negotiated
special
contracts with
teachers that denied
education
although they
fully
statutory
them tenure
had
satisfied the
stan-
18A:28-5,
provides:
which
dard for tenure under N.J.S.A.
teaching
all
...
be under
tenure ... after
The services of
staff members
shall
(a) [tjhree
in such
or
such
for:
consecutive calendar
district
board
employment
by
employing
which
board for such
or
shorter
be fixed
years,
any
may
period
(b)
together with
[t]hree
or
consecutive academic years,
employment
purpose;
(c)
beginning
succeeding
[t]he
of more
of the next
academic
equivalent
year;
than three academic
within a
four consecutive academic
any
years,
years
period
added).]
[(emphasis
tenure on those teach
We held that N.J.S.A. 18A:28-5 conferred
ing
right
the statute made tenure
staff members as of
because
years
mandatory term and condition of
after three
of service a
Thus,
members,
fully
employment.
teaching staff
who
satisfied
statute,
regardless
prerequisites
the factual
achieved tenure
renouncing
agreements
they may have made
their
side
specific
statutory rights.
Legislature
“[i]f
For
establishes
employment that leaves no room for discre
term or condition of
action,
fully preempted.”
tionáry
negotiation
then
on the term is
IFPTE
(citing
Here, prerequisites for tenure were not satisfied the factual term. appointed to a second consecutive Merlino was not because days was out of office for ten expired, and he His first term Thus, and he vacancy. a break between terms occurred creating a sure, if Merlino satisfy requirements. To be not the tenure did term, i.e., reappointed to a second consecutive merely had been ended, Spiewak this would be a case beginning when the first one have failed. It is the hiatus any to avert tenure would and effort that makes the difference. body argues governing
Alternatively, Merlino
with him
power
negotiate
to
the break
service
lacked the
employ
and conditions of
governing
the terms
because
statute
tenure,
ment,
trumps any
agreement
including acquisition
side
Golden,
431,
supra,
749 A.2d
it.
163 N.J.
that controverts
See
(1997).
Walsh,
842;
supra,
Merlino’s
body creating
public
violates
a hiatus between his terms
enforcement, subjecting
policy by undermining code
code officials
setting
stage
political pressure,
for wholesale avoidance
by governing
disagree.
of tenure
bodies. We
view,
in service was not violative of
our
Merlino’s break
public policy of the state and was effective to avert the conferral
underlying
undermining
purposes
no
tenure. We see
52:27D-126(b)
Act of which N.J.S.A.
Uniform Construction Code
part.
guarantees
of licensed
The UCCA
professional municipal building
and ensures that
code officials
politics. Voges
tenure in
local
their
office is not influenced
Falls,
279, 286-87,
Borough
What occurred was that rather than here granting letting tween the Hobson’s choice of Merlino tenure or body go, governing him decided to allow Merlino another deserving opportunity demonstrate he was of tenure. That to four-year helped choice Merlino because he received a second service, Arguably, period public of with a chance future tenure. interests, only not because the decision also served Midland Park’s appear in the there does not to have been another candidate wings, potential for Merlino to correct his but because of the deficiencies, learning allow Midland Park to avoid the curve of employee. a new consent, separate,
By parties agreed to a second mutual Merlino, thereby effecting appoint- four-year his term of office for acquisition There without of tenure. ment as Official Construction preclude that of the statute to nothing the four corners within noted in a different context: Appellate Division action. As meaning involving a we must construe the statute, plain ease application meaning of a statute first must be it to the facts. The of the statute and apply language sought if it is our sole function is to and, in in which it is framed plain, according to enforce it its terms. (1990) (internal A.2d 335 Mastropasqua, [Dempsey omitted).] citations statute, language respects plain Our decision sure, matter, general a there should be implements it. To be as designed provide to an additional a break in service no need for cases, majority years gain large In the four tenure. four-year body within the first term governing will know well tenure. will be the whether the code official should receive It Further, is deferred. we do unusual situation which a decision governing body ruling creating an incentive for a not view this as Certainly not even the record here does to circumvent tenure. “effectively abolishing tenure.” suggest actions tantamount Moreover, unlikely 212. we consider it Post at 796 A.2d at body governing that a would choose route could result litigation. future
Finally, disagree impact on the we with the dissent’s view 5:23-4.4(a). service, regulation A that allows form of N.J.AC. acquisi- not “acting appointment,” wit an that does count toward tenure, body’s recognizes need tion of in our view flexibility supports our conclusion.
IV. ruling that Merlino did not achieve tenure makes it unnec- Our essary for us to address the counsel fee issue. For the reasons stated, judgment Appellate we reverse the of the Division. COLEMAN, and Justice and Justices
Chief PORITZ join opinion. in VERNIERO Justice LaVECCHIA’s separate dissenting opinion in which Justice LONG filed a join. ZAZZALI Justices STEIN and J., LONG, dissenting.
n my colleagues Merlino’s sole route to agree with that I agree term. I also appointment to a second consecutive was an 344, N.J.Super. 685 A.2d Borough of Westwood, 295 that Cutler v. (1997), denied, 149 N.J. 693 A.2d (App.Div.1996), certif. year” language correctly interpreted the “fifth consecutive in grandfather clause with no relevance these a limited statute as majority in part company from the I circumstances. Where recog meaning I of the word “consecutive.” connection with an interval or import of the word is “without nize that the common majority However, 'complex notion is more than break.” make an interval or break that would What constitutes believes. depends purpose non-consecutive members of a series two Thus, might example, a law bar a underlying requirement. serving terms. In those from two consecutive public official limits, circumstances, underlying light purposes term in ten-day in suggest that a break person would no reasonable by the same individual render a second term served service would non-consecutive. majority analysis that is absent from the
That is the kind of
case,
holds'essentially
meets
hiatus
opinion which
this
terms of office
standard and renders two
the “break or interval”
regardless
the break’s
purposes
non-consecutive for tenure
view,
oversimplification
my
gross
length
purpose.
that is a
enacting
analysis:
the tenure
proper
whether
of what is the
UCCA,
legislature
a scheme like
intended
provisions of
body
pass muster. To answer
that crafted
underly-
scrutiny.
purpose
requires
question, the UCCA
professional
highly
ing
the creation of a cadre
that statute is
in the
subject
political influence
officials not
construction code
federal,
applicable
duties under
performance of their mandated
codes,
statutes,
regulations,
ordi-
state,
county,
municipal
Washington Tp., 220
nances.
DeStefano
Div.1987).
(Law
directly
goal is
related both
That
To is free to unsatisfactory employee. an goals Such action advances the professionalism by removing inadequate However, code officials. employee once an acquitted is found to have enough himself well reappointed term, legislative to be to a second consecutive tenure goals by providing job advances the security, UCCA thus ensuring high quality, experienced persons will remain as 27D-126(b) why code officials. That is N.J.S.A. is cast in manda- tory permissive shall, and not terms: “A construction official ... upon appointment to a granted second consecutive term ... be added). (Emphasis Clearly, tenure.” Legislature did not governing body intend that a statutory could evade simply tenure by imposing gap days of a few regular four-year between terms. reading language Such a of the “consecutive” of the act would completely Legislature’s undermine the intent to insulate con- struction political Moreover, officials from the change. winds of it effectively permit would employment indefinite of a code protection official without the attaching. tenure ever There is nothing majority’s in the opinion prevent governing body from placing “gaps” reappointments, minuscule thereby between all its effectively abolishing majority’s bright-line tenure. Given rule gaps permissible prevent such are attaching, tenure from prediction its holding its will create no incentive to circum- vent governing body tenure because a would not “choose a route litigation” that could rings result opinion, hollow. After this nothing there litigate. is left to view, my statutory Merlino met the standard for tenure. Hence, Spiewak Education, Board 90 N.J. Rutherford (1982),
447 A.2d
holding
with
agreements
its
that side
cannot
statutory
terms,
Further,
vitiate
applicable.
I note that
*14
City
ruling would violate Casamasino
nothing in such a
of
(1998).
held
A .2d 287
That case
730
Jersey City, 158 N.J.
by
reappointed and confirmed
who has not been
employee
that an
office. Id. at
must vacate the
day of his first term
the last
indeed,
Merlino,
prior to the last
reappointed
was
ment, already exists that a mechanism in the necessary the concerns raised flexibility to address with the 5:23-4.4(a)(6)1 procedure a tem- provides a for opinion. N.J.A.C. may or be extended appointment of a code official porary Community Department of approval of the with the renewed expiration of an after the temporary appointment, Affairs. Such term, nor grant him tenure four-year would neither official’s first if he obviate tenure interruption that would gap constitute term. That a second consecutive appointed to was thereafter improves employee who deal with the methodology is available to requires a first term and end of his near the or deteriorates advantage of That scheme has period of observation. further Affairs, Community by Department of providing oversight for responsibility for code ultimate agency charged with the provision in our law for deliber- simply no There enforcement. four-year terms interruptions between full ately imposing gaps or 5:23-4.4(a)(6) 1 states: NJ.A.C. acting construction
Acting
shall
an
A
appoint
municipality
appointments:
of such official would
time the absence
or subcode official
official
any
Code and other
of the Uniform Construction
administration
impede orderly
Acting
be accom-
shall
appointments
duties mandated
municipality.
by
providing, how-
to the
mechanism
municipality;
acceptable
plished by any
be
to the
shall
shall be
Notice
ever,
Department
that a written record
kept.
than
is made for more
time an
within seven
days any
provided
longer
Acting
for
than 60
not be made
days,
may
appointments
days.
unless
or renewed
days
specific
be extended
beyond
nor
they
may
granted writing
to do so is
by
Department.
authority
Kestin,
purpose
avoiding
Judge
writing
for the
tenure. As
for
Division, correctly
Appellate
stated:
frustrating
The mechanism that was
has the
employed
potential
entirely
52:27D-126(b).
législative design
enacting
manifest
N.J.S.A.
If the statutory
grant
could be so
evaded,
could forestall the
easily
any municipality
employing
conferral of tenure
the same mechanism
indefinitely simply by
every
denigrating
finding
four
Without
the tidal court’s
that no
years.
duress occurred
given
we observe
official faced with
here,
the choice
simply
plaintiff
the end of his first term would be hard
to refuse the offer and
for the
pressed
opt
guarantee
of office over the
of continued
relinquishment
an
employment
ensuing
term.
four-year
judgment
making
the unfettered
If,
those
not
decision,
had
plaintiff
earned
to his second
it was
term,
incumbent
the decision-
reappointment
upon
makers so to
no
declare. There were
to the denial of a second term.
impediments
choosing,
grant
good
in a
By
instead,
term,
second
even
faith effort to
plaintiff
*15
defer the tenure
issue,
and council came
within
mayor
the terms of
squarely
the statute and,
law,
conferred tenure
by operation
upon
plaintiff. Any
him
effort to remove
needed to conform with
subsequent
statutory requirements:
just
hearing.”
“for
cause after a fan- and impartial
Borough
[Merlino v.
Park,
Midland
Justices STEIN and ZAZZALI in this dissent. For reversal —Chief Justice PORITZ and Justices COLEMAN, AND VERNIERO LaVECCHIA —4.
For STEIN, LONG and ZAZZALI —3. affirmance —Justices