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Viviani v. Rogough of Bogota2/25/2002
em, however, is that Roe provides no mechanism to discern the true intent of a municipality. Arguably, then, costly litigation and discovery would be necessary in every case in which a tenured employee has suffered under the guise of "good faith action that results in the incidental abolishment of a protected exempt fireman's position[.]" Id. at 577.
The better approach, as embodied in Viviani, is to avoid speculation or litigation in respect of the motives underlying a municipality's conduct. I suggest no bad faith in this case. I simply agree with the Viviani court's analysis that looks beyond the manner in which a municipality has characterized or labeled its workforce restructuring and focuses instead on the impact of that action on the tenured firefighter. In other words, the Viviani approach eliminates the need to inquire into a municipality's alleged bad faith or other forms of possible mischief. I find that approach to be more consonant with the Legislature's intent than the one articulated in Roe.
A firefighter is entitled to a certificate after performing firefighting duties for seven years, provided other criteria are satisfied. N.J.S.A. 40A:14-56. In my view, the statute embodies an implied agreement in which volunteer firefighters accept the dangers inherent in that work and give freely of their time and talent in exchange for enhanced job security. As aptly noted by the court below, " he services provided by volunteer firemen benefit the community and are directly related to public safety and welfare, which is an elementary function of government." Viviani, supra, 336 N.J. Super. at 590.
Although laudable, a municipality's objective in reducing expenditures by employing management efficiencies cannot override the statute's protections. Indeed, in the face of governmental downsizing, the language in N.J.S.A. 40A:14-65, which prohibits the termination or demotion of a tenured firefighter "for economy reasons or otherwise," takes on particular significance. Consistent with what I perceive to be the Legislature's purpose in enacting the statute, we should uphold a firefighter's tenured status unless the statute's text undisputedly requires otherwise. It does not in this instance. Thus, I would affirm the judgment below.
Justices Long and Zazzali join in this opinion.
ZAZZALI, J., dissenting.
I join in Justice Verniero's dissent. I write separately to address the following concerns: there is little if any difference between abolishing a position and terminating services; even if there is a distinction, the Court today establishes an almost insurmountable obstacle for firefighters; and the legislative intent favors plaintiff.
The Borough of Bogota (Borough) distinguishes between termination of a firefighter when the governing body is "abolishing the position," which the Borough claims is permissible, and the discharge of a firefighter for the purpose of "terminat his services," which the Borough admits is impermissible. In my opinion, this is a distinction without a difference. As Judge Harris observed at the conclusion of trial, one can "put whatever gloss you want upon what Bogota did. But its purpose was to terminate this exempt fireman's services." In that respect, I would defer to the trial court's finding and its "feel of the case."
Although abolition of the position and termination of services may not be the same literally, in practice they are virtually identical. When a governing body abolishes a position, it almost invariably terminates services. To call it something else does not make the termination of services less real to the terminated employee.
Even assuming that there is a
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