Opinion
DOCKET NO. A-4978-11T2
04-03-2014
TOWN OF HARRISON and ALBERT J. CIFELLI, TAX ASSESSOR, TOWN OF HARRISON, Plaintiffs-Appellants/Cross-Respondents, v. DIRECTOR, NEW JERSEY DIVISION OF TAXATION, Defendant-Respondent/Cross-Appellant.
Castano Quigley, LLC, attorneys for appellants/cross-respondents (Gregory J. Castano, Jr., on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent/cross-appellant (Melissa H. Raksa, Assistant Attorney General, of counsel; Heather Lynn Anderson, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6440-11.
Castano Quigley, LLC, attorneys for appellants/cross-respondents (Gregory J. Castano, Jr., on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent/cross-appellant (Melissa H. Raksa, Assistant Attorney General, of counsel; Heather Lynn Anderson, Deputy Attorney General, on the brief). PER CURIAM
We consider the enforceability of regulations addressing continuing education requirements to maintain a municipal tax assessor certification. After obtaining a New Jersey Tax Assessor Certificate (certificate), plaintiff Albert J. Cifelli began his career as the Tax Assessor for plaintiff, Town of Harrison, on May 19, 1980. He has served as Harrison's tax assessor ever since. Cifelli's certificate remained in good standing until December 15, 2011, when defendant Michael J. Bryan, the Acting Director (Director) of the Division of Taxation (Division), New Jersey Department of the Treasury, revoked Cifelli's certificate because he failed to satisfy statutorily mandated continuing education requirements in a timely manner.
Under the unique facts of this case, for the reasons discussed in our opinion, we reverse the Director's revocation of Cifelli's municipal tax assessor certification and conclude his certificate remains in effect until June 30, 2014. No further hearings are necessary.
Cifelli and Harrison (collectively, plaintiffs) initiated this Law Division action, seeking declaratory judgment, pursuant to the New Jersey Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62. Plaintiffs assert the Director's revocation of Cifelli's certificate was arbitrary and capricious and void ab initio, because the Director specifically ignored the mandate in N.J.S.A. 54:1-35.25b(a)(2) to adopt a regulation delineating circumstances warranting the extension of time to comply with the continuing education requirements. The Law Division judge agreed with plaintiffs' interpretation of the statute and ordered the Director to adopt the regulation by September 19, 2012, and, thereafter, conduct a hearing regarding Cifelli's renewal application. Further, the judge ordered that if the Director failed to adopt the regulation by the date specified, Cifelli would be deemed recertified. The court continued the initial order, providing for Cifelli's reinstatement and restraining the Director from further adverse action until the conclusion of the litigation.
Plaintiffs filed a notice of appeal. The Director also moved for leave to appeal, which this court denoted as a cross-appeal. Subsequently, the matters were consolidated by this court.
Jurisdiction to review plaintiffs' assertions attacking the Director's inaction in adopting a regulation and their challenge to the denial of renewal of Cifelli's certificate rests with this court. R. 2:2-3(a)(2).
"Municipal tax assessors serve both local and state governmental needs. Thus, a municipal tax assessor is a hybrid because he or she is subject to the control of both the municipality and the State." Casamasino v. City of Jersey City, 158 N.J. 333, 344 (1999) (citations omitted). State authority over municipal tax assessors rests with the Director. N.J.S.A. 54:1-2. The State controls the qualifications required to obtain a municipal tax assessor certificate, and, since 1968, has administered a comprehensive examination and certification process. N.J.S.A. 54:1-35.25. Thereafter, the "Assessor Recertification Bill," L. 1999, c. 278, was adopted on December 8, 1999, which established the procedure for the renewal of tax assessor certificates. N.J.S.A. 54:1-35.25b(a).
Important to our discussion is the continuing education requirement:
Prior to the first renewal date of a tax assessor certificate . . . every applicant for renewal shall, on a form prescribed by the Director of the Division of Taxation, furnish proof of having earned a total of at least 50 continuing education credit hours over the prior five-year period. Thereafter, prior to each succeeding renewal date of a tax assessor certificate, every applicant for renewal shall, on a form prescribed by the Director of the Division of Taxation, furnish proof of having earned a total of at least 30 continuing education credit hours over the prior three-year period. For the purposes of this section, one continuing education credit hour means 50 minutes of classroom or lecture time. After verifying that the applicant has fulfilled the continuing education requirement and after receiving a fee of not less than $50 paid by the applicant to the order of the Treasurer of the State of New Jersey, the Director of the Division of Taxation shall renew the tax assessor certificate. The Director of the Division of Taxation shall determine, by regulation,
the circumstances under which an extension of time to complete the requirements for continuing education may be granted by the director.
[N.J.S.A. 54:1-35.25b(a)(2).]
The statute also includes an enforcement provision, found in N.J.S.A. 54:1-35.29, which states, in pertinent part:
Failure to comply with requirements for continuing education pursuant to [N.J.S.A. 54:1-35.25b,] shall cause the automatic revocation, without a hearing, of the tax assessor certificate. . . . If the tax assessor certificate of a person serving as assessor shall be revoked, such person shall be removed from office by the director, his office shall be declared vacant, and such person shall not be eligible to hold that office for a period of five years from the date of his removal.See also N.J.A.C. 18:17-2.2(c)(4). The impact and interrelationship of these provisions form the heart of this controversy.
These additional pertinent facts are not in dispute. Following the adoption of the municipal assessor's continuing education statute, Cifelli completed the required fifty credit hours, and his certificate was renewed. Thereafter, he complied with the renewal provisions and completed the required hours of continuing education such that his certificate was renewed in 2005 and again in 2008.
To fulfill the thirty-hour course requirement for renewal under the statute, regulations provide a minimum of ten hours of coursework in each of property tax administration and real property appraisal must be completed. N.J.A.C. 18:17-2.2(c)(2).
Cifelli's certificate remained effective through June 30, 2011, and he filed a late renewal application on September 11, 2011. Cifelli's certificate renewal application reflected he completed nineteen hours of property tax administration and twelve hours of appraisal courses, however, twelve of the total thirty-one credit hours were completed during the annual New Jersey County Tax Board Administrators Conference (NJCTBAC), two months following the June 30, 2011 end of his three-year certification period. Cifelli later revised his renewal application, to add 3.6 hours of timely completion coursework that had been inadvertently omitted, bringing the total to 34.6 hours, including the twelve credit hours earned after his certificate expired.
On September 28, 2011, a representative from the Division telephoned Cifelli and advised that the continuing education hours earned beyond the certificate renewal date were disallowed. Cifelli requested to and spoke with Gary DalCorso, Chief of Policy and Planning of the Division seeking reconsideration of the determination. In an October 14, 2011 letter, DalCorso returned Cifelli's renewal application, informed him he had "failed to meet the requirements to recertify[,]" and explained he would receive a formal notice his municipal tax assessor certificate was revoked.
Cifelli responded. His letter explained he consulted with Peter J. Zipp, counsel to the Association of Municipal Assessors of New Jersey (AMANJ), and also met with Patricia Wright of the Division to discuss his re-certification efforts. Cifelli outlined his position that the regulations promulgated by the Director failed to comply with the statutory directive to provide "the circumstances under which an extension of time to complete the requirements for continuing education may be granted . . . ." In an effort to resolve the controversy, Cifelli, who was also a licensed attorney, submitted an amended recertification application, adding 8.6 credit hours of continuing legal education real estate courses taken during the defined three-year period. The reported credit hours totaled 43.2, and even if the twelve credits earned after June 30, 2011 were excluded, the total was 31.2.
The Director revoked Cifelli's certificate, concluding he failed to meet the continuing education requirements. N.J.S.A. 54:1-35.29. In doing so, he rejected all courses taken after June 30, 2011, as well as courses sponsored by continuing legal education providers, as they were not approved by the Tax Assessor Continuing Education Eligibility Board or submitted to the New Jersey Real Estate Appraisal Board. Accordingly, the Director determined Cifelli's total continuing education credits fell 7.4 hours short of the required thirty hours necessary during the three-year renewal period.
Plaintiffs filed an order to show cause and an eight-count declaratory judgment action, asserting the Director violated N.J.S.A. 54:1-35.25b and misapplied N.J.S.A. 54:1-35.29; adopted regulations, specifically N.J.A.C. 18:17-2.2(c)(4) and (5), which directly "contradicted the statute," making them invalid; and disregarded Cifelli's equal protection rights. Plaintiffs additionally allege the Director violated Cifelli's due process rights by revoking his certification without a hearing.
The Director did not oppose plaintiffs' request for temporary restraints. The court's January 3, 2012 order immediately reinstated Cifelli as Harrison's tax assessor and temporarily enjoined the Director from taking further action pending completion of the court's adjudication, without prejudice to the Director's challenge on the merits.
Prior to the summary proceeding, the parties submitted certifications and filed briefs. On behalf of the Director, Elizabeth Ashton, a supervisor in the unit that oversees tax assessor recertification, explained why Cifelli's amended application for recertification was rejected. She also certified: "To my knowledge, no applicant for renewal of his or her tax assessor certificate has ever been granted an extension of time to complete the continuing education requirements." Cifelli certified the reasons impeding his timely compliance with the continuing education requirements. Cifelli noted he was a practicing attorney and only a part-time assessor and listed "professional commitments" and his July 2009 diagnosis of melanoma, requiring surgery, confinement to bed, and subsequent treatment, as preventing attendance at many of the designated municipal tax assessor continuing education events, including two annual conferences, where he typically earned the bulk of the requisite credits.
In a written opinion, the Law Division judge found the plain language of N.J.S.A. 54:1-35.25b(a)(2) demanded the Director adopt a regulation specifying the circumstances under which an extension of time to complete the continuing education requirement may be granted. Based on this "reasonable construction of the legislative mandate" the judge entered a May 21, 2012 order providing:
(1) that the Director, by a date certain-more specifically, September 19, 2012—adopt
regulations which address[] the circumstances under which an extension of time to complete the requirements of continuing education may be granted and conduct a hearing, pursuant to those regulations, within 60 days of the date the regulations are promulgated to determine if Mr. Cifelli's application for an extension should be granted or not, and (2) if the Director fails to comply with (1), the court finds that [Cifelli's] substantive and procedural due process rights have been violated and the ultimate relief sought by Mr. Cifelli under his complaint— reinstatement to the position of Tax Assessor—will be granted.
The Director moved for leave to appeal and plaintiffs filed a notice of appeal. We granted the Director's motion for leave to appeal, clarifying, however, that the appeal would be designated a cross-appeal. We consider that order as effectively allowing interlocutory review of all issues.
On appeal, plaintiffs request a modification of the May 21, 2012 order. They argue the judge correctly found the Director "eviscerated the legislative mandate" of N.J.S.A. 54:1-35.25b(a)(2), but deprived plaintiffs of an adequate remedy by allowing the agency "to adopt ex post facto regulations and thereafter conduct a hearing to adjudge whether [ ] Cifelli's prior conduct would qualify for an extension under the new regulations[.]" Further, plaintiffs maintain the judge omitted review of alternate requests for relief properly set forth in the complaint.
The Director's cross-appeal challenges Harrison's standing to maintain this action. Further, the Director asserts the court may not compel an agency's exercise of discretionary powers, order rulemaking, or require retroactive application of newly adopted regulations.
As we consider these issues, we will combine related arguments. We start our discussion reviewing the standing challenge, then we will examine the scope of the court's authority, and, finally, the adequacy of the remedies ordered.
The Director argues neither N.J.S.A. 54:1-35.29 nor any other statutory provision, confer standing upon a municipal assessor's municipal employer to challenge the non-renewal of an assessor's certificate. The Director posits "[i]f the Legislature desired to give persons or entities other than certificate holders the right to pursue statutory remedies where an assessor's certificate is subject to revocation, it would have expressly done so." We reject this notion.
Although standing is not automatic, "[o]ur courts have traditionally taken a generous view of standing in most contexts." In re Protest of Award of N.J. State Contract A71188 For Light Duty Auto. Parts, 422 N.J. Super. 275, 289 (App. Div. 2011) (citations omitted). In fact, the "threshold for standing" is "fairly low." Reaves v. Egg Harbor Twp., 277 N.J. Super. 360, 366 (App. Div. 1994). See also Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 350 (App. Div. 2010) ("Our case law dealing with the issue of standing is fairly liberal."). Generally, standing is conferred when a party demonstrates "a sufficient stake in the outcome of the litigation, a real adverseness with respect to the subject matter, and a substantial likelihood that the party will suffer harm in the event of an unfavorable decision." In re Camden Cnty., 170 N.J. 439, 449 (2002).
It is undisputed Cifelli had served as Harrison's tax assessor for thirty years and no other township employee was qualified to perform these tasks. Further, if Cifelli was not reinstated, Harrison could not prepare and file its yearly tax list, N.J.S.A. 54:4-35, due by January 10, 2012. Harrison also identified immediate and irreparable harm adversely affecting its municipal financial interests because Cifelli alone had "intimate involvement with several extremely substantial tax appeals[,]" including the defense of a challenge by the Red Bull Arena, which comprised "approximately six percent of [Harrison's] ratable base." During oral argument, the Director acknowledged as much, stating "we understood [Harrison's] desire to finish its tax rolls, and . . . the need . . . to complete its tax rolls in a timely fashion as required by statute, which is why we didn't oppose the temporary restraints."
The facts clearly demonstrate Harrison possessed a significant stake in the outcome of this litigation and, in the event of an unfavorable determination of the matter, Harrison would suffer harm. Accordingly, we find no error in the judge's determination Harrison had standing to present this matter.
The Director also challenges the court's authority to review plaintiffs' appeal, suggesting the matter involved an exercise of discretion. The Director contends the Law Division's order impermissibly "intrud[ed] on the Director's function to interpret the statute he is charged with implementing and enforcing[.]" We note
[a] court issued writ of mandamus to a government official "'commands the performance of a specific ministerial act or duty, or compels the exercise of a discretionary function, but does not seek to interfere with or control the mode and manner of its exercise or to influence or direct a particular result.'" In re Resolution of State Comm'n. of Investigation, 108 N.J. 35, 45 n.7 (1987) (quoting Switz v. Middletown Twp., 23 N.J. 580, 598 (1957)).Following our review, we reject the Director's contention, finding it meritless.
[Caporusso v. N.J. Dep't of Health & Senior Servs., 434 N.J. Super. 88, 100 (App. Div. 2014).]
The Director argues the trial court improperly compelled his exercise of discretionary rulemaking powers by a date certain. He suggests the court must defer to his interpretation of the statute, which he insists does not mandate regulation of this area. We note plaintiffs were not specifically seeking an order directing the adoption of a regulation; however, their claims rest on the absence of required rulemaking, which we consider a request for relief from arbitrary inaction. In re Comm'r's Failure to Adopt 861 CPT Codes, 358 N.J. Super. 135, 149 (App. Div. 2003).
"Like all matters of law," we review an agency's interpretation of a statute de novo. Russo v. Bd. of Trustees, Police and Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citing Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)). Although we defer to an agency's expertise, we will not defer to a statutory interpretation found to be "plainly unreasonable." T.H. v. Div. of Developmental Disabilities, 189 N.J. 478, 490 (2007). "We have cautioned that if an agency's statutory interpretation is contrary to the statutory language, or if the agency's interpretation undermines the Legislature's intent, no deference is required." Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 485 (2008).
We repeat the language of N.J.S.A. 54:1-35.25b(a)(2), cited by plaintiffs to support their claim of inaction. The statute states:
The Director of the Division of Taxation shall determine, by regulation, the circumstances under which an extension of time to complete the requirements for continuing education may be granted by the director.
[N.J.S.A. 54:1-35.25b(a)(2).]
It is not challenged that at the time of plaintiffs' action no regulation was promulgated to address this issue. Rather, the related regulatory provisions in effect when Cifelli submitted his request for recertification only addressed enforcement stating:
4. Failure to comply with requirements for continuing education pursuant to [N.J.S.A. 54:1-35.25b(a)], shall cause the automatic revocation, without a hearing, of the tax assessor certificate. When holder of a tax assessor certificate has allowed the certificate to lapse by failing to renew the certificate, a new application and certificate shall be required. If application is made within six months of the expiration of the certificate, application may be made in the same manner as a renewal, but with an additional late renewal fee of $50.00.
5. The six-month period referred to in (c)4 above shall be used for the submission of all necessary documentation only. No courses attended during such six-month period will be credited to the prior continuing education cycle[.] Additional
continuing education credits earned beyond the required amount during each cycle cannot be applied to the subsequent continuing education cycle.
[N.J.A.C. 18:17-2.2(c).]
The Director believes the statute grants him discretion to decide whether to effectuate enforcement. Because of the certainty of the continuing education obligation, he interprets the statute "as not requiring but rather permitting rulemaking . . . ." We do not agree.
The Legislature's directive in N.J.S.A. 54:1-35.25b(a)(2), is not discretionary. While the actual rulemaking function involves discretionary action, the requirement to engage in the adoption of described regulation is "'absolutely certain and imperative, involving merely the execution of a set task[,]'" making it ministerial. Caporusso, supra, 434 N.J. Super. at 102 (quoting Ivy Hill Park Apartments v. N.J. Prop. Liab. Ins. Guar. Ass'n, 221 N.J. Super. 131, 140 (App. Div. 1987), certif. denied, 110 N.J. 188 (1988)). Our rejection of the Director's contention is for these reasons.
First, the statutory provision is succinct and clear. There is no ambiguity as to the intent or the Legislative pronouncement. "Interpretation of a statute begins with 'the plain meaning of the provision at issue.'" Lozano v. Frank DeLuca Constr., 178 N.J. 513, 522 (2004) (quoting Burns v. Belafsky, 166 N.J. 466, 473 (2001)). If a statute's language "is clear and unambiguous, and susceptible to only one interpretation, courts should apply the statute as written without resort to extrinsic interpretative aides." Ibid. (internal quotation marks and citation omitted).
Second, the statute employs the use of "shall," not "may," which "is generally indicative of the strength of the Legislature's intent," Natural Med., Inc. v. N.J. Dept. of Health & Senior Servs., 42 8 N.J. Super. 259, 268 (App. Div. 2012). Ascertaining this intent is "the paramount goal when interpreting a statute and, generally, the best indicator of that intent is the statutory language." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (internal citation omitted). We discern nothing in the context of the statute or in the "character of the legislation" suggesting the common meaning of "shall" should be overcome to "justify a different meaning." Union Terminal Cold Storage Co. v. Spence, 17 N.J. 162, 166 (1954).
Third, we will not "presume that the Legislature intended something other than that expressed by way of the plain language" of the statute. O'Connell v. State, 171 N.J. 484, 488 (2002). Courts must not "engage in conjecture or surmise which will circumvent the plain meaning of the act." In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980). "Our duty is to construe and apply the statute as enacted." Ibid. In our view, the unrelenting interpretation interposed by the Director is belied by a purposeful provision requiring a regulation. Understanding the severity of the penalty imposed upon an assessor who does not meet the continuing education requirements, N.J.S.A. 54:1-35.29, the Legislature provided for the uncertainties of life that befall us all.
We also reject the notion suggesting the trial court substituted its discretion for that of the Director. To the contrary, we conclude, as did the judge, the clear legislative mandate obligates the adopting of the required regulation. To order the agency to fulfill its certain statutory obligation is a proper basis for a court order.
In addition to omitting procedures addressing circumstances allowing an extension to complete continuing education requirements, plaintiffs argue the regulations which were adopted, specifically N.J.A.C. 18:17-2.2(c)(5), which prohibits consideration of courses completed after the recertification period, effectively frustrated the expressed legislative intent of N.J.S.A. 54:1-35.25b(a)(2), which contemplates the possibility of an extension. We agree.
"When an agency violates the express policy of its enabling act, the agency action may be deemed arbitrary and capricious." Caporusso, supra, 434 N.J. Super. at 103 (citing Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)). We conclude the Director's interpretation advocating no regulatory action was necessary disregards the unequivocal mandate to adopt a provision for late compliance, and is "plainly unreasonable." Further, we agree plaintiffs proved that portion of N.J.A.C. 18:17-2.2(c)(5), disallowing consideration of course work after the close of the recertification period, is at odds with the clear statutory language.
[A] rule will be set aside if it is "inconsistent with the statute it purports to interpret." Smith v. Dir., Div. of Taxation, 108 N.J. 19, 26 (1987). That is, the agency "'may not under the guise of interpretation . . . give the statute any greater effect than its language allows.'" In re Valley Rd. Sewerage Co., 154 N.J. 224, 242 (1998) (Garibaldi, J., dissenting) (quoting Kingsley v. Hawthorne Fabrics Inc., 41 N.J. 521, 528 (1964)). Thus, if the regulation is plainly at odds with the statute, we must set it aside. See N.J. Turnpike Auth. v. AFSCME, Council 73, 15 0 N.J. 331, 351-52 (1997).
[In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004).]
Here, N.J.A.C. 18:17-2.2(c)(5) includes language rejecting any possibility of courses being completed after the end of the recertification period, despite the relevant clear and unambiguous statutory provisions to the contrary, which is ultra vires and cannot be sustained. See Casamasino, supra, 158 N.J. at 347 (stating an act is ultra vires and void if the agency was without authority to perform the act); Cnty. of Monmouth v. Dep't of Corr's, 236 N.J. Super. 523, 525 (App. Div. 1989) ("Action by a State agency in contravention of State statutes and its own regulations is per se arbitrary and capricious because it violates express or implied legislative policy."). Accordingly, the revocation of Cifell's certificate applying N.J.A.C. 18:17-2.2(c) must be set aside.
We also find significant the agency subsequently retreated from the rigidity of this prior interpretation and, on February 19, 2013, adopted regulations permitting extensions of time to meet the continuing education requirements. Newly added N.J.A.C. 18:17-2.2(c)(6) provides:
An applicant who is unable to complete the requirements for continuing education within the time period allowed by statute shall, prior to the expiration of the six-month period referred to in (c)4 above, submit an Application for Extension of Time to Complete Assessor Continuing Education for the Director's consideration, and shall provide documentation supporting the application. Failure to submit the application prior to the expiration of the six-month period referred to in (c)4 above shall result in the immediate denial of such application and immediate revocation of the certificate under (c)4 above. The Director, in his or her discretion and for good cause shown, may approve the application and extend the time in which the applicant may complete the requirements for continuing education. For purposes of this paragraph, in order to establish good cause the applicant must:
i. Provide medical evidence, such as a doctor's certification, that the applicant was unable to attend the classes necessary to complete the requirements for continuing education within the time period allowed by statute; or
ii. Show that circumstances beyond the applicant's control prevented him or her from completing the requirements for continuing education within the time period allowed by statute.
Both parties challenge the judge's order requiring the Director to consider Cifelli's recertification application after adoption of what is now N.J.A.C. 18:17-2.2(c)(6). Plaintiffs argue this deprives them of an effective remedy and contravenes "due process considerations and basic notions of fundamental fairness[.]" The Director agrees he may not apply N.J.A.C. 18:17-2.2(c)(6) retroactively.
"The general rule is that legislation and regulations have prospective effect." Seashore Ambulatory Surgery Ctr., Inc. v. N.J. Dept. of Health, 288 N.J. Super. 87, 97 (App. Div. 1996) (citations omitted). Retroactive application carries a "'high risk of being unfair.'" Ibid. (quoting Gibbons v. Gibbons, 86 N.J. 515, 522 (1981)). Retroactive application can not apply if it will result in "'manifest injustice' to a party adversely affected." Gibbons, supra, 86 N.J. at 523.
Under the unique facts of this case, we conclude retroactive application of the newly enacted regulation would be unfair. Cifelli could not have anticipated what circumstances would be deemed acceptable when the Director ultimately promulgated the regulation. No facts suggests he shirked his responsibilities to maintain competency as a municipal tax assessor. Further, he proved his good faith attempt to fulfill his obligations in accordance with the spirit of the statute.
Examining the expressed terms of N.J.A.C. 18:17-2.2(c)(6), Cifelli cannot meet the temporal provision and it is unclear whether the passage of time impedes his ability to gather the substantive proofs required to justify an extension. We also cannot ignore Cifelli's next recertification is due on June 30, 2014, making examination of whether his prior recertification was warranted almost inconsequential.
Importantly, the lack of regulatory guidance for a municipal tax assessor, like Cifelli, who faces the prospect of not meeting the continuing education requirements within the recertification period, falls squarely on the Director. When Cifelli submitted his renewal application, the statute had been in effect more than ten years without the necessary regulatory enactment. Our Supreme Court has insisted "government must 'turn square corners.'" F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 426 (1985) (citations omitted). In resolving the dilemma resulting from the Director's inaction, we side with plaintiffs whose good faith compliance was hampered by the lack of regulatory guidance. We conclude, as a matter of fundamental fairness, Cifelli's 2011 recertification, based on the courses taken during the period of recertification, along with the courses taken on August 30 and 31, 2011 during the NJCTBAC, stands, noting the upcoming recertification may not include courses taken during the 2011 NJCTBAC.
Based on our determination, we need not address the remaining arguments presented by plaintiffs or the Director. The Director was properly mandated to adopt the required regulation, which he has done, making our consideration of this issue moot. We vacate the provisions of the May 21, 2012 order directing the Division hold a hearing and application of the newly adopted regulation to Cifelli's circumstances. Finally, the reinstatement of Cifelli as Harrison's tax assessor based on his amended 2011 recertification application shall not be disturbed.
We reverse the Director's revocation of Cifelli's certificate.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION