Opinion
DOCKET NO. A-4109-10T2
10-29-2012
IN THE MATTER OF LUIS PASTORIZA, CAMDEN.
Richardson, Galella & Austermuhl, attorneys for appellant Luis Pastoriza (Allan E. Richardson, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent Civil Service Commission (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Patricia N. Ullman, Deputy Attorney General, on the brief). Marc A. Riondino, City Attorney, attorney for respondent City of Camden (Brian E. Turner, Assistant City Attorney, on the brief). Goldenberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi & Gill, attorneys for amicus curiae Camden County Municipal Clerks Association (Keith A. Bonchi, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Harris, and Hoffman.
On appeal from the Civil Service Commission, Docket No. 2011-2389.
Richardson, Galella & Austermuhl, attorneys for appellant Luis Pastoriza (Allan E. Richardson, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Civil Service Commission (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Patricia N. Ullman, Deputy Attorney General, on the brief).
Marc A. Riondino, City Attorney, attorney for respondent City of Camden (Brian E. Turner, Assistant City Attorney, on the brief).
Goldenberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi & Gill, attorneys for amicus curiae Camden County Municipal Clerks Association (Keith A. Bonchi, on the brief). PER CURIAM
Appellant Luis Pastoriza is the municipal clerk of the City of Camden (the City). He appeals from the April 8, 2011 final administrative determination of the Civil Service Commission (the Commission), which rejected his claim that the City's temporary layoff plan violated his rights under N.J.S.A. 40A:9-165. We reverse.
I.
Pastoriza is the City's tenured municipal clerk. He was appointed by the City's Council pursuant to N.J.S.A. 40:69A-38 and performs the powers and duties outlined in Section 5-12 of the Code of the City of Camden.
N.J.S.A. 40A:9-133 requires every municipality to have a municipal clerk. Furthermore, N.J.S.A. 40A:9-133.7(b) states that municipal clerks "shall hold office during good behavior and efficiency . . . , and shall not be removed therefrom for political reasons but only for good cause shown and after a proper hearing." This section continues: "The provisions of this section shall apply to every person actually in office as registered municipal clerk, whether or not in the classified service under Title 11A of the New Jersey Statutes (Civil Service)." Ibid.
On March 26, 2010, the City's Mayor formally proposed a temporary layoff plan for "non-uniformed employees" in its Departments of Administration, Finance, Law Department, Development and Planning, Code Enforcement, Public Works, Municipal Court, The Mayor's Office, City Clerk, and City Council. The Mayor expressed the City's intention "to institute temporary layoffs in the form of mandatory furloughs for economic, efficiency and other related reasons." Twenty-six dates were proposed, beginning on June 4, 2010, and continuing through November 24, 2010. Pastoriza was one of twelve employees in the City Clerk department to be included in the plan. The plan was approved by the Commission on April 9, 2010.
On April 15, 2010, Pastoriza, together with the City's tax assessor and tax collector, delivered a letter to the Mayor, entitled "Notice of Objection," protesting "the reduction in salary that would result from the temporary layoffs (furloughs) for [their tenured] positions." The three signatories specifically identified N.J.S.A. 40A:9-165 as authority to demand being excluded from the layoff plan. The next day, formal furlough notices were sent to all affected employees by Camden's business administrator.
On April 28, 2010, the City Council adopted a "Resolution Designating Furlough Days," which approved the City's temporary layoff plan insofar as it applied to "members of City Council as well as the Municipal Clerk and officers and employees of the Municipal Clerk's Office." On May 26, 2010, Pastoriza filed an action in lieu of prerogative writs in the Law Division against the City challenging his mandatory layoff.
As the City and the Commission both acknowledge, the employees affected by the plan were subjected to only a temporary layoff. None of them were permanently dismissed. Thus, the temporary layoff functioned as leave without pay. The arithmetic result was a tangible reduction of Pastoriza's income for the 2010 calendar year.
After the matter was consensually transferred by the Law Division to the Commission, the parties presented their written arguments. On April 8, 2011, the Commission issued its determination, stating that "there is nothing in N.J.S.A. 40A:9-165 which prohibits a [municipal clerk] from being laid off." The Commission went on to declare that "N.J.S.A. 40A:9-165 does not provide any special protections to the Municipal Clerk, who is considered an unclassified employee pursuant to Title 11A." Thus, the Commission denied Pastoriza's appeal because the statute "does not specifically prohibit the ability of an appointing authority from laying off its employees or officers . . ., which would include the Municipal Clerk." This appeal ensued.
II.
Our role in reviewing agency decisions is quite limited. In re Stallworth, 208 N.J. 182, 194 (2011). "We accord a strong presumption of reasonableness to such decisions and do not substitute our judgment for the wisdom of agency action if that action is statutorily authorized and not arbitrary and unreasonable." A.M.S. ex rel A.D.S. v. Bd. of Educ. of Margate, 409 N.J. Super. 149, 159 (App. Div. 2009). As long as an agency decision is contemplated under its enabling legislation, the action must be accorded a presumption of validity and regularity. Reilly v. AAA Mid-Atlantic Ins. Co. of N.J., 194 N.J. 474, 485 (2008).
However, we are not immutably bound by an agency's interpretation of law "because it is the responsibility of a reviewing court to ensure that an agency's administrative actions do not exceed its legislatively conferred powers." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). "We shall reverse an agency decision that 'violate[s] express or implied legislative policies[.]'" A.Z. v. Higher Educ. Student Assistance Auth., 427 N.J. Super. 389, 394 (App. Div. 2012) (alteration in original) (quoting Shim v. Rutgers - The State Univ. of N.J., 191 N.J. 374, 384 (2007)). Nonetheless, we "should strive to 'give substantial deference'" to an agency's interpretation of a statute it is charged with enforcing. In re Application, supra, 194 N.J. at 423 (quoting Saint Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 15 (2005)).
Because there are no factual disputes in this appeal, we deal exclusively with a question of law. The matter at issue concerns the interplay of the Commission's general Title 11A oversight of employment issues in civil service municipalities with the narrow application of N.J.S.A. 40A:9-165's salary protection for municipal clerks everywhere in the State. The Commission concluded that because N.J.S.A. 40A:9-165 included language making it subject to Title 11A, a municipal clerk had no right to insist upon being excluded from a Commission-approved layoff plan. It further noted that Pastoriza's salary was not being changed by ordinance, and the temporary layoff "[did] not affect Pastoriza's base salary which [was] set by an ordinance."
"In municipalities wherein the provisions of Title 11[A] (Civil Service) of the Revised Statutes are in operation, this section shall be subject thereto." Ibid.
Pastoriza reprises his argument that municipal clerks are protected municipal employees who cannot be forcibly disadvantaged by financial decisions invoked by municipalities. He relies upon two opinions of this court: Carlson v. City of Hackensack, 410 N.J. Super. 491 (App. Div. 2009), and Hyland v. Twp. of Lebanon, 419 N.J. Super. 375 (App. Div. 2011). Although the Commission found Carlson distinguishable, we do not agree.
Hyland was decided on April 7, 2011, one day before the Commission issued its final administrative determination in this case. Consequently, the opinion was never analyzed, and the Commission makes no mention of Hyland on appeal. The City also fails to address Hyland on appeal.
The Camden County Municipal Clerks Association (the Association), appearing as amicus curiae, has challenged the Commission's determination on grounds similar to Pastoriza's, but adds additional arguments. First, the Association claims that the effect of the Commission's decision is to treat "municipal clerks in Civil Service municipalities . . . worse than municipal clerks in non-Civil Service municipalities," contrary to the legislative intent of N.J.S.A. 40A:9-165. Second, amicus argues that "the position of municipal clerk is not a classified position[,] . . . [t]herefore, . . . under Title 11A, a municipal clerk cannot be included in a Civil Service municipality's layoff plan."
The Commission asserts that this aspect of the Association's argument should be barred because it was never raised in the administrative proceedings by Pastoriza. We agree. See State v. Lazo, 209 N.J. 9, 25 (2012) (declining to address an amicus argument that was raised for the first time in its Supreme Court brief); see also Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp. Educ. Ass'n, 91 N.J. 38, 48-49 (1982) (stating that "an amicus curiae must accept the case before the court as presented by the parties and cannot raise issues not raised by the parties").
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We start our analysis with the pertinent language of N.J.S.A. 40A:9-165:
The governing body of a municipality, by ordinance, unless otherwise provided by law, shall fix and determine the salaries, wages or compensation to be paid to the officers and employees of the municipality, including the members of the governing body and the mayor or other chief executive, who by law are entitled to salaries, wages, or compensation.We addressed this statute in connection with non-Civil Service municipalities in Carlson (involving the City of Hackensack's tax assessor) and Hyland (involving the Township of Lebanon's tax collector).
Salaries, wages or compensation fixed and determined by ordinance may, from time to
time, be increased, decreased or altered by ordinance. No such ordinance shall reduce the salary of, or deny without good cause an increase in salary given to all other municipal officers and employees to, any tax assessor, chief financial officer, tax collector, or municipal clerk during the term for which he shall have been appointed. . . . In municipalities wherein the provisions of Title 11[A] of the Revised Statutes are in operation, this section shall be subject thereto.
[N.J.S.A. 40A:9-165 (emphasis added).]
In Carlson, the tax assessor's terms of employment were changed by ordinance from full-time to part-time, which led to a reduction in salary commensurate with the reduction in his weekly work hours. Carlson, supra, 410 N.J. Super. at 494. In reviewing N.J.S.A. 40A:9-165, we found the statutory language to be "clear and unambiguous. . . . [T]he statute explicitly prohibits a municipality from decreasing the salaries of four categories of employees, one of which is the tax assessor." Id. at 496. Ultimately, we held that "a municipality is prohibited from reducing its tax assessor's salary during the term of his or her office." Id. at 500.
In Hyland, the municipality adopted a resolution that denied paid vacation, sick, and personal days to any of its employees working fewer than twenty hours a week. Hyland, supra, 419 N.J. Super. at 378. The effect of this resolution was to prevent the local tax collector from receiving any paid leave since she only worked nineteen hours a week. Id. at 377-78. We concluded that the municipality had violated the statute by adopting a resolution that denied the tax collector compensation for paid leave. Id. at 381-82. Reading the statute sensibly revealed that "the Legislature [did not] intend[] to limit the statutory bar to the base salary paid to the four named officers . . . . Indeed, the relevant language is part of a statute that pertains generally to establishment and reduction of 'salaries, wages or compensation' paid to municipal officers and employees." Id. at 384. "Such 'economic discrimination' can take the form of a reduction in work hours, with a commensurate reduction in salary, as was the case in Carlson. It also can take the form of eliminating payment for vacation days, sick leave and personal time[.]" Id. at 385.
We do not quarrel with the Commission's position that temporary layoffs are valid under Title 11A. Nonetheless, when applied to Pastoriza, the loss of pay for twenty-six days incontestably resulted in a "reduction in work hours with a commensurate reduction in salary." Hyland, supra, 419 N.J. Super. at 385. The "authority to reduce a [municipal clerk's] salary because of budgetary constraints must come in the first instance from the Legislature." Carlson, supra, 410 N.J. Super. at 500.
The fact that Pastoriza's salary was adjusted by a resolution and not by an ordinance does not change the analysis. The temporary layoff applied to Pastoriza only after the Council's resolution was approved. In Hyland, the tax collector's compensation was also altered by resolution. We found the resolution functioned to the same effect as an ordinance and held it was impermissible. See Hyland, supra, 419 N.J. Super. at 385. That same result applies here.
Among the lessons derived from the foregoing decisional law is that the legislative purpose of the statute is to protect municipal clerks from "economic discrimination"; to allow them to be "free from political pressure"; and to not endure "retaliation from municipal officials" as long as they perform their jobs "honestly and completely." Hyland, supra, 419 N.J. Super. at 383-84 (quoting Ass'n of Mun. Assessors v. Twp. of Mullica, 225 N.J. Super. 475, 481-82 (Law Div. 1988)); see also DePascale v. State, 211 N.J. 40, 50 (2012) (analyzing the No-Diminution Clause of the 1947 New Jersey Constitution, Article VI, Section 6, Paragraph 6, in similar fashion). The Commission's disregard of N.J.S.A. 40A:9-165's no-diminution protection in Civil Service municipalities, by applying the "shall be subject thereto" language of the statute, defeats the overarching legislative purpose of the law.
We also agree with the Association that the "shall be subject thereto" provision is not rendered meaningless under this interpretation. We, of course, must strive to not only harmonize legislation and apply it wisely, but "'[w]hen interpreting a statute or regulation, we endeavor to give meaning to all words and to avoid an interpretation that reduces specific language to mere surplusage.'" G.D.M. v. Bd. of Educ. of Ramapo Indian Hills Reg'l High Sch. Dist., 427 N.J. Super. 246, 260 (App. Div. 2012) (quoting D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 129 (2007)).
Among its many provisions, Title 11A addresses employee compensation generally. For example, N.J.S.A. 11A:3-7(d) provides that "[e]mployees of political subdivisions are to be paid in reasonable relationship to titles and shall not be paid a base salary below minimum or above the maximum established salary for an employee's title." Furthermore, the implementing regulation's provision for compensation states, "[i]n local service, appointing authorities shall establish compensation plans which provide for paying employees in reasonable relationship to their job titles." N.J.A.C. 4A:3-4.1(a).
Thus, when the Legislature linked Title 11A with N.J.S.A. 40A:9-165, it provided that, as a general matter, salary, wages or compensation of officers and employees in civil service municipalities would be established in accordance with Title 11A. Nevertheless, the statute clearly bars any reduction in the salaries of all tax assessors, chief financial officers, tax collectors, and municipal clerks during the terms of their respective appointments. It would be unreasonable to apply Title 11A's reach to erode (rather than enhance) the important public policies fostered by giving municipal clerks statutory financial protection. The effect of the Commission's interpretation of N.J.S.A. 40:9A-165 vis-à-vis Pastoriza distorts a primary purpose of the statute and cannot be countenanced.
Reversed and remanded for further proceedings in accordance with this opinion.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
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CLERK OF THE APPELLATE DIVISION