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Faber v. Borough of Hawthorne12/29/2003
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 10, 2003
After a trial, plaintiff's claims for relief on account of her allegedly wrongful termination from her employment with defendant Borough of Hawthorne were rejected. The trial judge dismissed her claim against the municipality, holding that no violation of the Optional Municipal Charter Law (the Faulkner Act), N.J.S.A. 40:69A-1 to -210, had been established; and the jury returned a verdict of no cause for action on plaintiff's claim that the actions of defendant Criscitelli, the mayor, had violated plaintiff's First Amendment rights, i.e., that she was terminated because she had supported a political opponent of his. Criscitelli had contended that a dire financial situation confronting the municipality at the time was the reason for the employment action he had taken.
Plaintiff appeals on a single ground from the confirming order for judgment and the trial court's denial of her post-trial motion, arguing that the trial court's ruling on the Faulkner Act issue was erroneous. We reject the argument and affirm.
The government of the Borough of Hawthorne is organized according to the mayor-council plan provisions of the Faulkner Act, N.J.S.A. 40:69A-31 to -48. The issue plaintiff advances bears upon the meaning, interplay, and application of two subsections of N.J.S.A. 40:69A-43 to the facts at hand. These clauses provide:
(c) The mayor may in his discretion remove any department head and, subject to any general provisions of law concerning term of office or tenure, any other municipal executive officer who is not a subordinate departmental officer or employee, after notice and an opportunity to be heard. Prior to removal the mayor shall first file written notice of his intention with the council, and such removal shall become effective... unless the council... disapprov the removal.
(d) Department heads shall appoint subordinate officers and employees within their respective departments and may, with approval of the mayor, remove such officers and employees, subject to the provisions of... law. It was undisputed at trial that plaintiff had been employed by the municipality as an office manager in its water department, and that the mayor, without consulting anyone, had removed her from her position. In ruling on the Faulkner Act issue, Judge Dumont found that the position was not that of a department head, and that plaintiff had been an at-will employee. He held:
hile department heads are empowered under the Faulkner Act to remove their subordinate employees, even they don't have the final authority with respect to removal of subordinates. The mayor must approve it.
But that doesn't mean that that's the only way a person who is not a department head can be removed.... he statute... does not say that department heads have to be involved in the process to remove a subordinate.
... f it deals with a matter of performance, it's better if the department head is involved, but the statute simply gives the department head the authority to be involved in the process[;]... it doesn't say that the department head has to be involved in the process.... n the final analysis, the mayor must approve the termination even if the department head is involved.
t might have been preferable if there'd been consultation with the department heads, but... it was not a situation which was performance-based. No one had any problem with Mrs. Faber, either as a person... or in terms of her performance. It was rather... done for budgetary reasons. So, while it might have been preferable to consult with the department
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