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Viviani v. Rogough of Bogota2/25/2002
r. 578, 582 (App. Div. 2001).
As a certificate holder, plaintiff claimed before the trial court that his tenure rights had been violated by the change in position and salary. The trial court and the Appellate Division agreed. Id. at 583. I would affirm the judgment of the Appellate Division substantially for the reasons expressed in Judge Lintner's comprehensive and persuasive opinion. Id. at 583-92.
The statute provides:
No department of the State government, nor any board of chosen freeholders of a county, governing body of a municipality or board of education shall abolish, change the title or reduce the emoluments of any office held by an exempt fireman having tenure therein, for economy reasons or otherwise, for the purpose of terminating his services, except in time of a widespread economic depression or mandatory retrenchment, but in any such case, the termination or reduction shall be made in the same ratio as in the case of other employees. [N.J.S.A. 40A:14-65.]
In view of that provision, the panel below concluded that even though the Borough may have acted out of a good-faith desire to reduce spending, the statute required enhanced protection to plaintiff in this setting.
The majority reaches a contrary conclusion based substantially on the rationale articulated in Roe v. Borough of Upper Saddle River, 336 N.J. Super. 566 (App. Div. 2001). Focusing on the phrase "for the purpose of terminating his services," the Roe court concluded that the statute's protections apply only when a municipality's objective is to terminate or demote a particular firefighter. Id. at 577. In essence, so long as the municipality's workforce restructuring is not done as a pretext for terminating the employee's services, the municipality may so act for simple economic reasons, even when not confronted with "widespread economic depression mandatory retrenchment[.]" Ibid.
That rationale reflects a plausible interpretation of the statute. In my view, however, the interpretation advanced by the Viviani court is equally persuasive. I resolve this conflict in favor of the firefighter because of my belief that in enacting the statute, the Legislature intended the tenure provision to apply broadly, except in those instances marked by "widespread economic depression or mandatory retrenchment[.]" N.J.S.A. 40A:14-65. The Roe and Viviani courts each discuss the statute's legislative history, which does not need to be repeated here. Suffice it to say, I agree with the Viviani court's interpretation of that history in support of its disposition.
As noted, under Roe's approach, the statute would not permit the termination of an individual firefighter in these circumstances, but it would permit the elimination of that employee's position. From the firefighter's perspective, he or she suffers the same injury under either scenario. In short, I do not believe that the Legislature intended a firefighter's job security to be dependent on such technical distinctions. See Jersey City Chapter of the Prop. Owners Protective Ass'n v. City Council of Jersey City, 55 N.J. 86, 100 (1969) (observing that " hen all is said and done, the matter of statutory construction will not justly turn on . . . technisms . . .; it will justly turn on the breadth of the objectives of the legislation and the commonsense of the situation").
Strict adherence to the Roe approach raises another concern. The panel in Roe recognized that "even if a municipal employer posits economy or other good faith reasons for the abolishment of a tenured exempt fireman's position, it cannot do so if the real object is to remove the individual." Roe, supra, 336 N.J. Super. at 573. The probl
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