(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
(A-201/202/203-97)
Argued October 13, 1998 -- Decided May 27,1999
COLEMAN, J., writing for a majority of the Court.
The issue in this appeal is whether an individual appointed by a mayor, without the “advice and consent”
of the municipal council as required by statute, to fill an unexpired term of sixty-four days to be followed by a
four-year full term as tax assessor, acquires tenure after serving for six years in that capacity.
For some time prior to April 1987, Peter Casamasino had been employed by Jersey City as its assistant tax
assessor. When the tax assessor, Margaret Jeffers, died while in office, then Mayor Anthony Cucci in a letter dated
April 27, 1987, appointed Casamasino as the tax assessor to complete the term of office of the late tax assessor,
which would expire on June 30, 1987. In addition, in that letter, Mayor Cucci also appointed Casamasino to fill a
full four-year term on expiration of Jeffers' term. The full four-year term would run from July 1, 1987 to June 30,
1991. Although the mayor's letter was addressed to both the president and other members of the City Council, the
Council never formally approved the appointment.
On completion of Casamasino's first full term, then Mayor Gerald McCann took no action to reappoint
him. Similarly, Casamasino had taken no affirmative steps to seek reappointment even though he was advised to do
so by then Acting Corporation Counsel, Joanne Monahan. Instead, for the next two years, Casamasino continued
to perform the duties of tax assessor, and the City of Jersey City continued to pay his salary.
In the Spring of 1992, Mayor McCann forfeited his office. Brett Schundler was elected to fill McCann's
unexpired term in November 1992 and was subsequently re-elected to a new four-year term. Shortly after the
election, Mayor Schundler notified Casamasino that he was exercising his “mayoral prerogative not to reappoint
[Casamasino] as assessor” and that he was terminated effective immediately.
The following day, on July 1, 1993, Casamasino filed a complaint in lieu of prerogative writs against the
City of Jersey City and Mayor Schundler seeking reinstatement as tax assessor. In addition, the complaint charged
those defendants with violations of Casamasino's federal civil rights; violations of the Conscientious Employee
Protection Act (CEPA); violations of the New Jersey Law Against Discrimination (LAD); and with wrongful
termination, defamation, and various other wrongful actions. On July 7, 1993, Casamasino obtained an order
directing Jersey City and Mayor Schundler to show cause why his removal should not be vacated, which order also
included temporary restraints that preserved his status as tax assessor pending disposition of the order to show
cause.
Subsequently, at the conclusion of the hearing on the order to show cause, the trial court found that the
City Council had consented to Casamasino's initial appointment through its silence and acquiescence. The trial
court further determined that Casamasino's continuation of service after completion of his full term, coupled with
the continued silence and acquiescence of the Mayor and City Council, was essentially a reappointment to the
position, thus giving rise to tenure under N.J.S.A. 54:1-35.31. The remaining claims were dismissed on summary
judgment.
Jersey City and Mayor Schundler appealed, arguing that the trial court essentially had usurped the
discretionary executive and legislative functions of the mayor and city council by reinstating Casamasino and
granting him tenure. Casamasino cross-appealed the dismissal of his LAD, CEPA, defamation, civil rights, and
punitive damages claims. The Appellate Division affirmed the trial court's decision that accorded tenure to
Casamasino, citing the need for tax assessors to be insulated from municipal interference and political pressure.
The Supreme Court granted both parties' petitions for certification.
HELD: A tax assessor cannot acquire tenure without undergoing the statutory reappointment process.
1. The Faulkner Act provision outlining the procedure for the appointment and confirmation of tax assessors is of
constitutional dimension and, therefore, no one branch of government may exercise any of the powers properly
belonging to either of the others. (pp. 11)
2. Ratification of irregular contracts for goods or services is permitted only after full compliance with all statutory
conditions precedent. (pp. 11-13)
3. An act or appointment is void and may not be ratified if a municipality is utterly without capacity to perform the
act or make the appointment. (pp. 13-15)
4. Although Casamasino's appointment as tax assessor for the four-year term that covered the period of July 1,
1987 to June 30, 1991 was made by the mayor who was the statutorily designated appointing authority, subject to
confirmation by the City Council, the City Council took no action that was similar to or equivalent to the advice and
consent contemplated by the controlling statute. (pp. 16-19)
5. The duties performed by Casamasino while serving as de facto tax assessor are binding on the municipality and
third parties. (pp. 19-20)
6. Although Casamasino served de facto tax assessor, tenure is not an emolument of a de facto office holder.
Rather, a de facto tax assessor occupies that position until terminated, or until a successor is appointed. Because
Casamasino was a de facto tax assessor, Mayor Schundler was free to terminate him. (pp. 20-21)
7. Unless the full statutory procedure for tenure is satisfied, tenure cannot be conferred based solely on the fact
that Casamasino performed the duties of a de facto tax assessor for six years. (pp. 21-22)
8. Unlike some other public positions that have fixed terms and yet permit holdover status based on the organic
law, tax assessors, justices, and judges are not granted any holdover status under the organic law outlining their
appointments and reappointments. (pp. 22-24)
9. For the future, consistent with the statutory scheme and in the interest of minimizing potential abuses, de facto
officer status will be available only to those tax assessors who have been appointed with the advice and consent of
the council. Moreover, there can be no holdover at the end of the term because none is provided for in the
controlling statutes. Finally, to acquire tenure, there cannot be any break in service between the initial appointment
and reappointment, and absent a statutory holdover provision, tax assessors who have not been reappointed and
confirmed by the last day of their first full term must vacate the office. (pp. 24-25)
10. Henceforth, de facto officer status shall be limited to those tax assessors who have been appointed by the
mayor with the advice and consent of the council. Only express ratification will suffice to cure a lack of advice and
consent. Except in very limited instances, no form of holdover status is permitted. Unless reappointed in
accordance with the controlling statutes before the full term expires, the position of tax assessor ends definitively
and irrevocably on the last day of the term. (pp.26-27)
Judgment of the Appellate Division is REVERSED.
JUSTICE O'HERN filed a separate opinion concurring with the judgment of the Court, except to the
extent that the opinion suggests that the initial appointment could not have been ratified.
JUSTICE STEIN filed a separate dissenting opinion in which JUSTICE POLLOCK joins. Justice Stein
believes that the Court's disposition frustrates the Legislature's clearly articulated objective, evidenced by a fixed
statutory four-year term for assessors that does not authorize holdover status to protect tax assessors from
politically-inspired removal. The appropriate dispostion, in Justice Stein's view, would be to set aside the
municipality's removal of the assessor, reinstate him, and permit him to serve out the balance of his statutory term.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER and GARIBALDI join in JUSTICE COLEMAN's
opinion. JUSTICE O'HERN filed a separate concurring opinion. JUSTICE STEIN filed a separate dissenting
opinion in which JUSTICE POLLOCK joins.
SUPREME COURT OF NEW JERSEY
A-201/202/
203 September Term 1997
PETER CASAMASINO,
Plaintiff-Respondent
and Cross-Appellant,
and
DIRECTOR, DIVISION OF TAXATION AND
HUDSON COUNTY BOARD OF TAXATION,
Plaintiffs-Intervenors,
v.
CITY OF JERSEY CITY AND BRET
SCHUNDLER, MAYOR OF THE CITY OF
JERSEY CITY,
Defendants-Appellants
and Cross-Respondents.
Argued October 13, 1998 -- Decided May 27, 1999
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
304 N.J. Super. 226 (1997).
Brian W. McAlindin argued the cause for
appellant and cross-respondent Bret
Schundler, Mayor of the City of Jersey City
(Wilson, Elser, Moskowitz, Edelman & Dicker,
attorneys; Mr. McAlindin, Colin P. Hackett
and Kenneth R. Foreman, on the briefs).
Martin R. Pachman argued the cause for
appellant and cross-respondent City of Jersey
City (Sean M. Connelly, Corporation Counsel,
attorney; Mr. Connelly, on the brief).
Harry Z. Haushalter argued the cause for
respondent and cross-appellant.
John R. Lloyd argued the cause for amicus
curiae, The Association of Municipal
Assessors of New Jersey (Rosenblum Wolf &
Lloyd, attorneys).
The opinion of the Court was delivered by
COLEMAN, J.
This case raises fundamental questions implicating the
respective powers and responsibilities of the executive and
legislative branches of municipal government regarding the
appointment, confirmation, and tenure of a tax assessor. The
specific issue is whether an individual appointed by a mayor,
without the "advice and consent" of the municipal council as
required by statute, to fill an unexpired term of sixty-four days
to be followed by a four-year full term as tax assessor, acquires
tenure after serving for six years in that capacity.
The trial court found that the City Council impliedly
ratified plaintiff's appointment for four years and sixty-four
days by its complacency after being informed of plaintiff's
appointment. The trial court also found that the municipality's
failure to terminate or reappoint plaintiff upon completion of
his first four-year term conferred tenure. The Appellate
Division affirmed in a published opinion.
304 N.J. Super. 226
(1997). We granted certification,
156 N.J. 383 (1998), and now
reverse. We hold that a tax assessor cannot acquire tenure
without undergoing the statutory reappointment process.
Plaintiff completed his first full term as tax assessor on June 30, 1991. At that time, then Mayor Gerald McCann took no action to reappoint plaintiff. Plaintiff took no affirmative steps to seek reappointment even though he was advised to do so by Joanne Monahan, then Acting Corporation Counsel. For the next two years, plaintiff continued to perform the duties of tax assessor, and the City of Jersey City continued to pay his salary.
Mayor McCann forfeited his office in the spring of 1992 due to a federal conviction. Brett Schundler was elected to fill McCann's unexpired mayoral term in November 1992. In May 1993, Mayor Schundler was re-elected to a new four-year term. Shortly after the election, Mayor Schundler notified plaintiff on June 30, 1993, that he was exercising his “mayoral prerogative not to reappoint [plaintiff] as assessor. Effective herewith, you are relieved of your duties."
The following day, July 1, 1993, plaintiff filed a complaint in lieu of prerogative writs against the City of Jersey City and Mayor Schundler seeking reinstatement as tax assessor. In addition, the complaint as amended charged defendants with violations of plaintiff's federal civil rights under 42 U.S.C. §1983, violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, wrongful termination from employment, defamation, intentional infliction of physical and emotional harm, and intentional interference with a business relationship.
On July 7, 1993, plaintiff obtained an order directing defendants to show cause why plaintiff's removal should not be vacated. The order to show cause also included a temporary restraining order that preserved plaintiff's status as tax assessor pending the return date of the order.
On July 30, 1993, at the conclusion of the hearing on the order to show cause, the court found that plaintiff had been appointed by Mayor Cucci to the office of tax assessor for a four-year term commencing on July 1, 1987, and ending June 30, 1991. The court found that the City Council had consented to that initial appointment through its silence and acquiescence. The trial court further determined that plaintiff's continuation of service after June 30, 1991, coupled with the continued silence and acquiescence of the Mayor and City Council, was essentially a reappointment to the position, thus giving rise to tenure under N.J.S.A. 54:1-35.31. The remaining claims were dismissed on summary judgment motions.
Defendants appealed and plaintiff cross-appealed. Defendants argued essentially that the trial court had “usurped 'the discretionary executive and legislative functions of the mayor and city council' by reinstating plaintiff as tax assessor and granting him tenure.” Casamasino, supra, 304 N.J. Super. at 233-34. Citing the need for tax assessors to be insulated from municipal interference and political pressure, the Appellate Division affirmed the trial court's decision that accorded tenure to plaintiff. Id. at 234.
On the cross-appeal, plaintiff contended that the trial court had improperly dismissed his § 1983, LAD, CEPA, defamation, and punitive damage claims. The Appellate Division affirmed the dismissal of those claims as well. Id. at 240-46. We granted both parties' petitions for certification. 156 N.J. 383 (1998).
-A-
Mayor Schundler further contends that the lower courts usurped the functions of both the executive and legislative branches by issuing an unconstitutional writ of mandamus. He maintains that the court's mandamus authority does not permit it to enforce a municipality's discretionary decisions, one of which is the appointment of a tax assessor.
To answer the arguments advanced by the parties, we must examine the form of municipal government under which Jersey City operates, the statutory scheme that controls the appointment and term of a tax assessor, and our constitutional separation of powers doctrine.
The City of Jersey City adopted the mayor-council plan of government pursuant to the Faulkner Act, N.J.S.A. 40:69A-26 to
-210. In view of that governmental plan, we must decide whether, when weighed against the constitutional separation of powers doctrine, a tax assessor in a Faulkner Act municipality can acquire tenure without active compliance with the statutory requirements.
The Faulkner Act was created with the intent to confer upon municipalities the greatest possible power of local self government consistent with the Constitution of this State and the applicable law as set forth in N.J.S.A. 40:69A-28. N.J.S.A. 40:69A-30; Myers v. Cedar Tp., 36 N.J. 51, 57 (1961); Keuerleber v. Township of Pemberton, 260 N.J. Super. 541, 544 (App. Div. 1992). Municipalities that adopted one of the Faulkner Act plans have been granted wide authority to determine the organization of departments and to control personnel. Ibid. The mayor-council plan of government is governed by the general law and pertinent provisions of the Faulkner Act.
In a Faulkner Act municipality that has adopted the mayor-council plan of government such as Jersey City, "[t]he mayor shall, with the advice and consent of the council, appoint the municipal [tax] assessor." N.J.S.A. 40:69A-43(b). "Every municipal tax assessor . . . shall hold his office for a term of 4 years from the first day of July next following his appointment." N.J.S.A. 40A:9-148. If a vacancy occurs during the tax assessor's four-year term, a successor shall be appointed to fill the unexpired term. Ibid. Pertinent to this case, a tax assessor may acquire tenure provided that he or she has been reappointed "subsequent to having received a tax assessor certificate and having served as tax assessor or performed the duties of assessor for not less than 4 consecutive years immediately prior to such reappointment." N.J.S.A. 54:1-35.31(1).
Although the separation of powers doctrine applied to federal and state governments is not generally applicable to mayor-council plan of government, "the Faulkner Act plainly envisages some separation of functions between the Council (the legislative body) and the Mayor (the executive)." In re Shain, 92 N.J. 524, 537 (1983). That separation of functions imposes "certain limits on the Mayor and local council in governing the municipality." Id. at 538. Principles of separation of powers are applicable where the Legislature has specifically delegated to the mayor and to the council separate functions in the appointment of officials such as tax assessors. Where one branch of government has been specifically vested with the authority to act in a prescribed manner, neither of the other branches may usurp that authority. N.J.S.A. 40:69A-32(b); Communications Workers v. Florio, 130 N.J. 439, 463-64 (1992); David v. Vesta Co., 45 N.J. 301, 326 (1965). Here, only the mayor was involved in plaintiff's appointment. N.J.S.A. 40:69A-43(b) requires both the mayor representing the executive branch, and the council representing the legislative branch, to perform separate roles in the appointment and reappointment of a tax assessor. Neither can ignore the responsibility of the other in the appointment and confirmation of tax assessors without violating separation of powers principles. Requiring approval of tax assessors by two branches of municipal government is not only mandated by statute, but it is also consistent with the important services provided by tax assessors.
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. Mitchell v. City of Somers Point, 281 N.J. Super. 492, 499 (App. Div. 1994); Jeffers v. City of Jersey City, 8 N.J. Tax, 313, 316-17 (Law Div. 1986), aff'd, 214 N.J. Super. 584 (App. Div. 1987); Horner v. Ocean Tp. Comm., 175 N.J. Super. 533, 537 (App. Div. 1980). Although a tax assessor is generally appointed by a municipality, N.J.S.A. 40A:9-146, and his or her jurisdiction is local, the powers and duties of that office are specifically prescribed by the Legislature. A tax assessor's basic obligation is to "determine the full and fair value of each parcel of real property situate in the taxing district at such price as, in his judgment, it would sell for at a fair and bona fide sale by private contract." N.J.S.A. 54:4-23. The assessor is subject to state controls that include investigation by the Director of the Division of Taxation concerning his methods. N.J.S.A. 54:1-26 and -19; Horner, supra, 175 N.J. Super. at 538.
First, we address plaintiff's contention that although his
appointment by the mayor for a full four-year term running from
July 1, 1987 to June 30, 1991, was not formally voted on by the
City Council, his appointment was nonetheless ratified by it. We
look to our decisional law to determine whether that procedural
irregularity can legally be cured by the doctrine of
ratification.
Ratification is equivalent to an original exercise of power
that relates back to the date of the original act or appointment
being ratified. Edgewater Park v. Edgewater Park Housing
Authority,
187 N.J. Super. 588 (Law Div. 1982), held that a
public agency may ratify premature contracting with an attorney
for professional services, "provided the ratification proceedings
occur after there has been compliance with the Municipal Land Use
Law [N.J.S.A. 40:55D-31] and the Local Public Contracts Law
[N.J.S.A. 40A:11-5(1)(a)(i) and -5]," id. at 602, and all
statutory conditions precedent. There, the failure to comply
with those statutory requirements made the contract for services
an irregular exercise of the power to enter into the contract.
Similarly, the subsequent passage of an "ordinance directing
payment of a just claim previously incurred by a municipality
constitutes effective ratification to bind the municipality as
though the obligation had been first properly authorized." De
Muro v. Martini,
1 N.J. 516, 522 (1949). Two years later, this
Court reaffirmed the principle that a contract formed without
compliance with statutory conditions precedent may not be
validated simply by performance. Bauer v. City of Newark,
7 N.J. 426, 434 (1951). A contract that did not comply with all
statutory conditions precedent can be "ratified only by full
compliance with the statutory prerequisites . . . in the first
instance." Id. at 435. The pertinent principle derived from the
foregoing cases that is applicable to the present case is that
ratification of irregular contracts for goods or services is
permitted only after full compliance with all statutory
conditions precedent. That essentially means express, rather
than implied, ratification.
But implied ratification of irregular contracts by
municipalities has also been recognized. Johnson v. Hospital
Service Plan of New Jersey,
25 N.J. 134, 140-41 (1957), held that
the doctrine of implied ratification applies to individuals and
municipalities when there is sufficient evidence "to affirm the
unauthorized act of [the municipality's] agent." Ibid. Johnson,
however, is not a case in which "the parties failed to comply
with any mandatory statutory requirements operating as conditions
precedent to the formalities of a valid contract." Id. at 139.
The analysis of ratification of employment relations has
paralleled the analysis of contract ratification. Cetrulo v.
Byrne,
31 N.J. 320, 330 (1960), held that although the Essex
County Board of Chosen Freeholders had usurped the Essex County
Prosecutor's authority to appoint legal assistant prosecutors,
Prosecutor Byrne's predecessor in office may have ratified such
an appointment by allowing the person to serve in that capacity
under him for three years. Ibid. Prosecutor Byrne terminated
the legal assistant the first day he began his tenure. Cetrulo
claimed that he should have been considered "'as a de facto
position holder or employee of the County of Essex.'" Ibid.
That claim was rejected because an appointment to that position
is personal to each prosecutor and because the Legislature
intended to exclude a county prosecutor's confidential employees
such as legal assistants from acquiring tenure under the
Veteran's Tenure Act, N.J.S.A. 38:16-1. Ibid.
Barkus v. Sadloch,
20 N.J. 551 (1956), concerned a
switchboard operator who was hired by the mayor when only the
governing body had the statutory authority to hire her. When her
employment was abruptly terminated by resolution of the governing
body, she sued, claiming tenure under the Veteran's Tenure Act.
The Court held that Barkus's appointment was ratified by the City
Council because "[p]laintiff performed [her] duties for a period
of over two years in the conspicuous surroundings of the City
Hall. Her name appeared on every payroll approved by resolution
of the city council during" the period of October 21, 1952 to
January 15, 1954. Id. at 556. The Court also held that her
status as a de facto employee for an indefinite term brought her
within the protection of the Veteran's Tenure Act. Id. at 557.
Ream v. Kuhlman,
112 N.J. Super. 175, 194 (App. Div. 1970),
involved an attempt to appoint a tax assessor to less than a full
four-year term. It held that any attempt to appoint a tax
assessor to a full term of less than four years results in a
four-year term based on the plain language in N.J.S.A. 40:46-6.2,
the predecessor to N.J.S.A. 40A:9-148.
More recently, the Appellate Division in Grimes v. City of
East Orange,
288 N.J. Super. 275 (App. Div. 1996), adopted the
correct legal analysis for determining whether an improper
appointment of a public official is capable of subsequent
ratification by the appropriate appointing authority and whether
that person can be considered a de facto officer. First, the
Bauer test must be applied to decide whether the act or
appointment was ultra vires or intra vires. An act or
appointment is ultra vires if the "municipality [was] utterly
without capacity" to perform the act or make the appointment.
Bauer, supra, 7 N.J. at 434. Such an act or appointment is void
and may not be ratified. Ibid. In contrast, an intra vires act
or appointment is one that is "voidable for want of authority"
and may be ratified. Ibid.; Grimes, supra, 288 N.J. Super. at
279. This general rule has been recognized throughout the
country. See McQuillin, Municipal Corporations § 12.175.10 at 19
(3d ed. 1991). Second, Grimes requires that when the act or
appointment involves statutory conditions precedent, ratification
must be made with the same formalities required for the original
exercise of power, meaning in accordance with the statutory
procedures required for the original act. Grimes, supra, 288
N.J. Super. at 280 (citing McQuillin, supra, § 13.47 at 879).
Applying the above principles to the present case, we
conclude that Casamasino's appointment as tax assessor for the
four-year term that covered the period of July 1, 1987 to June
30, 1991, was made by the mayor who was the statutorily
designated appointing authority, subject to confirmation by the
City Council. N.J.S.A. 40:69A-43(b); N.J.S.A. 40A:9-146.
Because the appointment was made by the proper appointing
authority, at least the first half of the statutory appointment
process was satisfied. In view of that fact, the focus now
shifts to a consideration of the more problematic question of
whether the appointment was capable of ratification by the City
Council absent a formal confirmation vote.
We are satisfied that under the decisional law of this
State, ratification by the City Council of a tax assessor can
occur only after council members have full knowledge of all the
material facts, including the knowledge that it is ratifying the
appointment of a tax assessor for a particular term as a cure for
its usual confirmation process. Such a ratification requires an
open, unequivocal act intended as a substitute for a formal
resolution of the council approving the mayor's appointment
within the meaning of N.J.S.A. 40:81-20. That did not occur in
the present case. Mayor Cucci's letter of appointment was
addressed to the City Council and copies were sent to the City
Clerk and the Law Department. The letter can reasonably be
understood as requesting the City Council to place the matter on
the agenda for a vote when the mayor wrote: "Thank you for your
attention to this matter." In addition, Councilman Hart wrote a
congratulatory letter to plaintiff in the spring of 1987. None
of that, however, represents any action taken by the City
Council.
Although the record is reasonably clear that the City
Council was aware that plaintiff had been chosen as the tax
assessor by Mayor Cucci, and that plaintiff assumed those
responsibilities on April 28, 1987, there is no evidence that the
City Council ever listed the appointment on its agenda for
"advice and consent" as contemplated by N.J.S.A. 40:69A-43(b) and
N.J.S.A. 40:81-20. Not only was there no formal action taken by
the City Council to confirm the appointment, there is no evidence
that the City Council ever acknowledged plaintiff in a formal
meeting that arguably could be equivalent to confirmation.
N.J.S.A. 40:69A-43(b) requires more than mere silence,
acquiescence, or payment of salary by the City Council before
ratification can be said to have occurred. Viewing the evidence
in a light most favorable to plaintiff, all that can be said is
that the City Council knew plaintiff had been appointed by Mayor
Cucci. It took no action that was similar to or equivalent to
the advice and consent contemplated by the controlling statute.
The appointment, reappointment, and tenure acquisition
process for tax assessors under N.J.S.A. 40:69A-43(b) and
N.J.S.A. 54:1-35.31(1) is similar to that required for Supreme
Court justices and judges of the Superior Court under Article Six
of the New Jersey Constitution. A justice or judge must be
nominated and appointed by the Governor “with the advice and
consent of the Senate.” N.J. Const. art. 6, § VI, ¶ 1. If
confirmed, the appointment is for a fixed term of seven years.
Id. at ¶ 3. Upon completion of the first seven-year term, a
justice or judge may be reappointed in the same manner as the
initial appointment. Ibid. Upon reappointment, a justice or
judge acquires tenure “during good behavior,” or until the
mandatory retirement age of seventy. Ibid.
The constitutional requirement that the Governor nominate
and appoint justices and judges with the advice and consent of
the Senate, and the statutory requirement that the mayor appoint
tax assessors with the advice and consent of municipal council,
at the very least, contemplate that the nomination or appointment
will not proceed without the advice and consent of the Senate or
the municipal council respectively. De Vesa v. Dorsey,
134 N.J. 420, 433 (1993) (Pollock, J. concurring). The one difference
between judicial appointments and reappointments and those for
tax assessors is that without Senate action on judicial nominees,
the nomination lapses, ibid., while a tax assessor may become a
de facto officer under some circumstances.
Having found that plaintiff's appointment by Mayor Cucci was
defective, we must resolve his status between July 1, 1987 and
June 30, 1991, the period Mayor Cucci designated as a full four
year term. The answer lies in the de facto officer doctrine.
The doctrine dates back to 1431. In re Fichner,
144 N.J. 459, 468 (1996); Kathryn A. Clokey, Note, The De Facto Officer
Doctrine: The Case for Continued Application,
85 Colum. L. Rev.
1121, 1125 (1985). We have described the doctrine as follows:
The essence of the de facto officer doctrine
is that one who claims to be a public officer
while in possession of an office and
ostensibly exercising its function lawfully
and with the acquiescence of the public is a
de facto officer whose lawful acts, so far as
the rights of others are concerned, are, if
done within the scope and by the apparent
authority of the office, as valid and as
binding as if the officer were legally
qualified for the office and in full
possession of it.
[Fichner, supra, 144 N.J. at 468 (citations
omitted).]
The ancient doctrine has been part of our common law for more
than a century, Erwin v. Jersey City,
60 N.J.L. 141, 144 (E. & A
1897), and part of our statutory law since 1925. L. 1925, c.
239, § 1, now codified at N.J.S.A. 40A:9-6. Ancient though the
doctrine may be, it nevertheless serves the needs of our
contemporary society. Fichner, supra, 144 N.J. at 468. Because
the statute does not define "de facto officers," we apply the
common law definition rearticulated in Fichner, supra, 144 N.J.
at 468-67. Thus, it is clear that the duties performed by
plaintiff while serving as de facto tax assessor are binding on
the municipality and third parties. To hold otherwise would
create substantial uncertainty by permitting challenges to
official actions based on plaintiff's lack of confirmation by the
City Council.
The remaining question regarding the de facto officer
doctrine is whether plaintiff's good-faith performance of his
duties as tax assessor entitles him to more than compensation for
services rendered. The statute provides that a de facto officer
who has performed the duties of that office "shall be entitled to
the emoluments and compensation appropriate to such office or
position for the time in fact so held." N.J.S.A. 40A:9-6. The
term "emolument" means "[t]he profit arising from office or
employment; that which is received as a compensation for
services, or which is annexed to the possession of office as
salary, fees, and perquisites; advantage; gain, public or
private." Black's Law Dictionary 616 (4th ed. 1968). Plaintiff
was paid the full salary designated for tax assessors the entire
six years. We conclude that tenure is not an emolument of a de
facto office holder. We also conclude that presently, a de facto
tax assessor occupies that position until terminated, or until a
successor is appointed, whichever occurs first. The latter
conclusion is consistent with the holding in Barkus, supra, 20
N.J. at 557, and with McQuillin, supra, § 12.105 at 513 (stating
the "rights of a holdover officer terminate when the rights of
the successor vest"). Because plaintiff was a de facto tax
assessor, Mayor Schundler was free to terminate him.
Apart from the fact that under the de facto officer doctrine
plaintiff was not entitled to tenure under N.J.S.A. 40A:9-6, the
statutory preconditions for tenure simply were not met. A tax
assessor can acquire tenure only if two preconditions are
satisfied. First, the person must have been appointed by the
mayor with the advice and consent of the council for a four-year
term that commences on the first day of July next following the
appointment. N.J.S.A. 40A:9-148. Second, the person must be
reappointed by the mayor with the advice and consent of the
council after receiving a tax assessor certificate and after
"having served as tax assessor or performed the duties of
assessor for not less than 4 consecutive years immediately prior
to such reappointment." N.J.S.A. 54:35-31(1). Plainly, there
was no reappointment of plaintiff. Just as a municipality cannot
change the statutorily prescribed four-year term of office for
tax assessors, neither can a municipality or the judiciary change
the statutorily prescribed requirement for granting tenure.
Unless the full statutory procedure is satisfied, tenure cannot
be conferred based solely on the fact that plaintiff performed
the duties of a de facto tax assessor for six years. See Cutler
v. Borough of Westwood,
295 N.J. Super. 344, 347 (App. Div.
1996), certif. denied,
149 N.J. 143 (1997) (stating that tenure
should not be conferred based upon a technicality).
Unlike some other public positions that have fixed terms and
yet permit holdover status based on the organic law, see, e.g.,
N.J.S.A. 26:1A-109 (permitting members of the Commission on Aging
to hold over until their successors are appointed and qualified);
N.J.S.A. 32:24-4 (permitting commissioners to hold over until a
successor is appointed and qualified); N.J.S.A. 32:2-4
(permitting commissioners of the Delaware River Port Authority
Joint Commission to hold over until their successors are
appointed and qualified); and N.J.S.A. 54:3-3 (permitting members
of county boards of taxation to hold over until their successors
are appointed and qualified); tax assessors, justices and judges
are not granted any holdover status under the organic law
outlining their appointments and reappointments.
For a short time only, the Legislature recognized a limited-holdover status for tax assessors. During a period beginning in
July, 1971, when tax assessors could be either elected or
appointed, vacancies that occurred before completion of a full
term were "filled by appointment for the unexpired term or until
the election and qualification of a successor." L. 1971, c. 200,
amending N.J.S.A. 40A:9-148. When elections were eliminated as a
method of selecting tax assessors in 1978 and appointments by the
governing body or chief executive became the only option, the
limited holdover provision for tax assessors appointed to fill an
unexpired term was eliminated. L. 1978, c. 128, § 2, amending
N.J.S.A. 40A:9-148, effective July 1, 1979. This very limited
holdover status that existed for less than ten years strongly
suggests that the Legislature did not intend tax assessors to
become holdovers after 1979, which was over eight years before
plaintiff was appointed in 1987.
The constitutional provisions regarding appointments and
reappointments of justices and judges, like the statutes that
collectively establish the procedure for appointing and
confirming nominations or appointments for tax assessors, do not
specify a period of time in which the process must be concluded.
Under our holding today that applies the de facto officer
doctrine to a tax assessor where the advice and consent
requirements have not been satisfied, the possibility exists that
a de facto tax assessor may remain in office longer than if he or
she had become a de jure assessor. Plaintiff is such an example.
The de facto officers doctrine and N.J.S.A. 40A:9-6 are rooted in
our public policy of protecting the public's interest. We must
now guard against permitting the beneficial doctrine to be used
for mischievous purposes.
For the future, we have placed some prospective limitations
on the use of de facto tax assessors. Consistent with the
statutory scheme and in the interest of minimizing potential
abuses in the future, de facto officer status will be available
only to those tax assessors who have been appointed with the
advice and consent of the council. They can become de facto
officers only in the face of minor omissions such as failing to
take the oath of office. We also hold that there can be no
holdover at the end of a term because none is provided for in the
controlling statutes. As we have noted earlier, the Legislature
knows how to create temporary or holdover appointments when it
chooses to do so. The absence of such a provision in the tax
assessor area indicates the Legislature's intention not to permit
tax assessors to serve as holdovers. To acquire tenure, there
cannot be any break in service between the initial appointment
and reappointment. Absent a statutory holdover provision, tax
assessors, like justices and judges, who have not been
reappointed and confirmed by the last day of their first full
term must vacate the office.
We do not envision that these prospective limitations on de
facto tax assessors will cause any hardship to municipalities.
If the incumbent assessor is not reappointed and confirmed before
being required to leave office, the municipality would be without
an assessor for a maximum of ninety days. On October 1 of any
year in which a municipality is without a tax assessor, the
Governor is obligated to notify “the mayor or other chief
executive of the governing body that within 10 days after service
of said notice [the Governor] will appoint an assessor.”
N.J.S.A. 40A:9-149. Furthermore, we are confident that the need
for revenue derived annually from real property taxes will
provide an incentive to make timely appointments of tax
assessors.
We also reject plaintiff's contention that he is entitled to
tenure as tax assessor based on the doctrine of estoppel.
Estoppel is “an equitable doctrine, founded in the fundamental
duty of fair dealing imposed by law, that prohibits a party from
repudiating a previously taken position when another party has
relied on that position to his detriment.” State v. Kouvatus,
292 N.J. Super. 417, 425 (App. Div. 1996). Although the doctrine
of equitable estoppel is rarely invoked against a governmental
entity, this Court has long held that the prevention of manifest
injustice provides an exception to the general rule. County of
Morris v. Fauver,
153 N.J. 80, 104 (1998); Voyt v. Borough of
Belmar,
14 N.J. 195, 205 (1954). This case does not involve any
of the principles essential to invoking the doctrine.
For the future, it is critical to understand the limitations
of our holdings. Henceforth, de facto officer status shall be
limited to those tax assessors who have been appointed by the
mayor with the advice and consent of the council. We conclude
that in the future only express ratification will suffice to cure
a lack of advice and consent. We have considered implied
ratification on an interim basis only, but the proofs in this
case failed to satisfy the required standard. Rarely then will a
tax assessor be able successfully to acquire the status of a de
facto officer. That status will be confined to such instances,
by way of examples only, in which the assessor failed to take the
oath of office or where he or she mistakenly continued in office
after the expiration of a full term. Except in very limited
instances, no form of holdover status is permitted. Unless
reappointed in accordance with the controlling statutes before
the full term expires, the position of tax assessor ends
definitively and irrevocably on the last day of the term.
The judgment of the Appellate Division is reversed.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER and GARIBALDI join
in JUSTICE COLEMAN'S opinion. JUSTICE O'HERN filed a separate
concurring opinion. JUSTICE STEIN filed a separate dissenting
opinion in which JUSTICE POLLOCK joins.
SUPREME COURT OF NEW JERSEY
A-201/202/
203 September Term 1997
PETER CASAMASINO,
Plaintiff-Respondent
and Cross-Appellant,
and
DIRECTOR, DIVISION OF TAXATION AND
HUDSON COUNTY BOARD OF TAXATION,
Plaintiffs-Intervenors,
v.
CITY OF JERSEY CITY AND BRET
SCHUNDLER, MAYOR OF THE CITY OF
JERSEY CITY,
Defendants-Appellants
and Cross-Respondents.
O'HERN, J., concurring.
I concur in the opinion and judgment of the Court, except
insofar as the opinion suggests that the initial appointment
could not have been ratified. The trial court determined that
the Jersey City Council impliedly ratified Casamasino's 1987
appointment by its silence because “plaintiff occupied his office
in an open and notorious manner,” and “one could not conclude
otherwise but that the Council had full knowledge of the fact
that plaintiff was functioning in every respect as the tax
assessor.”
There is decisional support for the theory
that the conduct of the township managers
constituted an approbation of [Casamasino's]
status as tax assessor so as to validate his
appointment. See Barkus v. Sadloch,
20 N.J. 551 (1956), where [the] Court held that the
inappropriate appointment of a city employee
was subsequently validated by council's acts
in approving payrolls upon which the
employee's name appeared. In this vein, see
also Cetrulo v. Byrne,
31 N.J. 320, 330
(1960), and Kovalycsik v. Garfield,
58 N.J.
Super. 229, 239 (App. Div. 1959).
[Ream v. Kuhlman,
112 N.J. Super. 175, 193
(App. Div. 1970).]
However, I do not believe that tenure as tax assessor may be
acquired as a holdover. There having been no reappointment by
the new mayor when Casamasino's original term expired in 1991,
the qualifications for achieving tenure under N.J.S.A. 54:1-35.31
were not met.
SUPREME COURT OF NEW JERSEY
A-201/202/
203 September Term 1997
PETER CASAMASINO,
Plaintiff-Respondent
and Cross-Appellant,
and
DIRECTOR, DIVISION OF TAXATION AND
HUDSON COUNTY BOARD OF TAXATION,
Plaintiffs-Intervenors,
v.
CITY OF JERSEY CITY AND BRET
SCHUNDLER, MAYOR OF THE CITY OF
JERSEY CITY,
Defendants-Appellants
and Cross-Respondents.
STEIN, J., dissenting.
In this appeal, as in Kaman v. Montague Township Committee,
___ N.J. ___ (1999), also decided today, a municipal tax assessor
in political disfavor with the governing body of the municipality
was removed from office on the basis that his status as a
"holdover" tax assessor, who was neither reappointed nor replaced
after the expiration of his four-year statutory term, rendered
him removable at will. In both cases, the Court upholds the
municipality's removal of the assessor. I believe that the
Court's dispositions frustrate the Legislature's clearly
articulated objective, evidenced by a fixed statutory four-year
term for assessors that does not authorize holdover status,
N.J.S.A. 40A:9-148, to protect tax assessors from politically-inspired removal. The appropriate disposition, in my view, is to
set aside the municipality's removal of the assessor, reinstate
him, and permit him to serve out the balance of his statutory
term.
The critical facts are essentially undisputed. In 1987,
when the duly appointed tax assessor died, plaintiff Peter
Casamasino was employed by Jersey City as an assistant tax
assessor. In a letter dated April 27, 1987, addressed to the
president and the members of the City Council, Mayor Cucci
appointed plaintiff "as the Tax Assessor to complete the term of
office of the late Margaret Jeffers expiring on June 30, 1987.
Upon expiration of said term, I hereby appoint Mr. Casamasino to
a full four-year term commencing July 1, 1987 and expiring June
30, 1991."
Jersey City was a Faulkner Act municipality that had adopted
the mayor-council form of government. Accordingly, the Mayor's
appointment of Casamasino as tax assessor required the advice and
consent of the council. See N.J.S.A. 40:69A-43(b). Ignoring the
statute, City Council of Jersey City never took action concerning
the Mayor's appointment of Casamasino as tax assessor.
Pursuant to the Mayor's letter appointing him tax assessor,
Casamasino signed his oath of office on April 28, 1987. His
salary was immediately increased from $38,150 annually as
assistant tax assessor to $65,000 as assessor. He proceeded to
discharge the duties of the office until June 30, 1987, the last
day of Ms. Jeffers' term, and continued in office for the full
four-year statutory term commencing July 1, 1987 to which he had
been "appointed" pursuant to Mayor Cucci's letter. See N.J.S.A.
40A:9-148 (providing that "[e]very municipal tax assessor . . .
shall hold his office for a term of 4 years from the first day of
July next following his appointment."). The record before us
does not reflect any challenge to Casamasino's exercise of the
powers of his office during that period despite the City
Council's failure to act on his appointment.
At the completion of plaintiff's initial four-year term as
assessor on June 30, 1991, the then mayor Gerald McCann took no
action to reappoint plaintiff, and Casamasino took no action to
secure reappointment. For the next two years plaintiff continued
to discharge all of the duties of the office of the tax assessor,
and Jersey City continued to pay his salary. According to the
certification of Joanne Monahan, who served as Acting Corporation
Counsel to Jersey City from December 1991 to June 1992, she
informed Casamasino that in her opinion he had not acquired
tenure as tax assessor by virtue of his holdover status following
his full four-year term, and recommended that he seek
reappointment by the Mayor and confirmation by the City Council.
According to Monahan's certification, Casamasino and his counsel
declined to take any action to obtain his formal reappointment.
In the spring of 1992, Mayor McCann forfeited his office
because of his conviction of a federal crime. Bret Schundler was
elected in November 1992 to fill McCann's unexpired term, and in
May 1993 Schundler was re-elected to a new four-year term as
mayor. On June 30, 1993, Mayor Schundler fired plaintiff as tax
assessor, sending him a letter stating that he was asserting his
"mayoral prerogative not to reappoint plaintiff as assessor.
Effective herewith, you are relieved of your duties."
Plaintiff contends that his termination from office resulted
from Schundler's personal animosity toward him, dating back to a
history of incidents in the late 1980s, before Schundler was
mayor. Furthermore, in January 1993, Mayor Schundler wanted to
implement a plan to reassess residential properties in Jersey
City through the use of an outside appraisal firm whose
methodology would focus on a comparison of 1988 residential
assessments and 1992 residential sales. Plaintiff opposed the
Mayor's plan because he believed the proposal violated the State
Division of Taxation's requirements regarding the use of outside
appraisal firms. Moreover, plaintiff maintains, the plan was
unsupportable because it involved only residential properties, it
did not require physical inspections, and the proposed
reassessment methods were improper. Plaintiff wrote to the
Director of the Division of Taxation, who confirmed the
impropriety of the Mayor's plan. Plaintiff voiced his
opposition to the reassessment plan both privately to the Mayor,
and at a council meeting at which he was requested to state his
opinion regarding the proposal. Plaintiff alleges that at the
January 25, 1993 council meeting, the Mayor confronted plaintiff
and threatened, "I'm going to get you, I'm going to embarrass you
every chance I get." Subsequently, at the council meeting on
February 3, 1993, the City Council rejected the Mayor's proposal.
In another incident, Jersey City's Director of Finance
issued a two-day suspension to plaintiff, forcing him to seek
reinstatement by court order. After a judge vacated the
suspension on March 30, 1993, the City Council adopted a
resolution authorizing the city to reimburse plaintiff $8079.14
in legal expenses. Plaintiff claims that he never recovered that
money because the funds were never encumbered and, shortly
thereafter, a newly constituted city council voted to rescind the
prior resolution, finding that it lacked statutory authorization.
Plaintiff asserts that defendant Jersey City also refused to
implement an order by the same judge to establish a department
for the tax assessor separate from the department of finance.
Finally, plaintiff maintains that, subsequent to his termination,
Mayor Schundler defamed him on a local call-in television
program.
In July 1993, plaintiff filed an action in the Law Division
seeking reinstatement as tax assessor and asserting numerous
other claims against defendants including civil rights violations
pursuant to
42 U.S.C. §1983; violations of the Conscientious
Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; and
violations of the New Jersey Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -42. At the conclusion of the hearing on
plaintiff's order to show cause why the removal should not be
vacated, the Law Division reinstated plaintiff as tax assessor
and granted him tenure. The court noted that, although the
Council had failed to confirm plaintiff's initial appointment as
tax assessor, "plaintiff occupied his office in an open and
notorious manner, and there is no contention that the City
Council was unaware of that fact." The court concluded that the
Council's inaction, combined with its obvious acquiescence to
plaintiff's performance of the duties of tax assessor,
constituted a ratification of the Mayor's attempted appointment
of plaintiff as tax assessor. The court further concluded that
the Mayor and Council's inaction after the expiration of
Casamasino's four-year statutory term, which permitted him to
continue in office for two additional years, constituted a
reappointment that "gave rise to tenure." Rejecting the City's
contentions that plaintiff's holdover status rendered him
removable at the will of the governing body, the court observed:
Defendant's contention would give
municipalities license to subvert the clear
legislative intent that assessors serve for
fixed four-year terms. It would contravene
the legislative intent to allow an appointing
authority to create an at-will situation by
simply failing to appoint an assessor but
allowing him or her to continue in office and
serve effectively at the whim or caprice of
the appointing authority. That is precisely
what the Legislature intended to avoid.
Plaintiff's remaining claims were dismissed on defendant's motion
for summary judgment.
In a published opinion,
304 N.J. Super. 226 (1997), the
Appellate Division affirmed Judge D'Italia's reinstatement of
plaintiff as tax assessor and the grant of tenure to plaintiff,
essentially for the reasons expressed by Judge D'Italia in his
oral opinion. The Appellate Division also affirmed the dismissal
of plaintiff's related claims. Id. at 234-46.
Because the statute governing the term of office of tax
assessors provides only for a fixed four-year term and does not
authorize or contemplate holdover status, N.J.S.A. 40A:9-148, our
resolution of the dispute over whether plaintiff's holdover
status subjects him to removal without cause depends on which
interpretation of that statute best implements the underlying
legislative purpose. That purpose can best be discerned by an
examination of the overall legislative scheme relating to the
assessment of real property.
Although tax assessors are appointed by the governing body
or chief executive of a municipality, depending on the form of
government, see N.J.S.A. 40A:9-146, the tax assessor's
governmental function is authorized by the Legislature and is
performed as an agent of the Legislature, not of the
municipality. Arace v. Irvington,
75 N.J. Super. 258, 266 (Law
Div. 1962); Ridgefield Park v. Bergen County Bd. of Taxation,
61 N.J. Super. 170, 181 (Law Div.) rev'd on other grounds,
33 N.J. 262 (1960).
The Legislature has prescribed that a tax assessor's
fundamental responsibility is, "after examination and inquiry,
[to] determine the full and fair value of each parcel of real
property situate in the taxing district at such price as, in his
judgment, it would sell for at a fair and bona fide sale by
private contract." N.J.S.A. 54:4-23. That the assessor must
perform that assessment function independently, and free of any
direct or indirect municipal control, is well settled. Ream v.
Kuhlman,
112 N.J. Super. 175, 190 (App. Div. 1970), certif.
denied,
59 N.J. 267 (1971); Arace, supra, 75 N.J. Super. at 269.
To assure the independence of tax assessors and the
integrity of the tax assessment process, the Legislature has
established county boards of taxation in each county whose
members, "chosen because of their special qualifications,
knowledge and experience in matters concerning the valuation and
taxation of property," are appointed by the Governor and
confirmed by the Senate. N.J.S.A. 54:3-2. Each county tax board
is required to review the tax lists prepared and submitted by the
assessors in their county, N.J.S.A. 54:4-35, and to revise and
correct the assessments where appropriate. N.J.S.A. 54:4-46 to -48. On or before May 13 of each tax year, the county tax boards
must certify to each municipality the assessments, as revised, on
the municipal tax list. N.J.S.A. 54:4-55. That certification by
the county boards of taxation completes the assessment process,
to the end that any further changes in assessments can be
achieved only by means of appellate review. Woodstown Borough v.
Lower Alloways Creek Township,
124 N.J. Super. 347, 352-54 (App.
Div.), certif. denied,
64 N.J. 154 (1973). Accordingly, a
municipality aggrieved by an assessor's valuation of property
within the municipality may appeal the assessment to the county
tax board. N.J.S.A. 54:3-21. Thus, the county boards of
taxation -- not the municipal governing bodies -- are the
legislatively designated agencies directly responsible for
reviewing the work of tax assessors, both administratively and
though the tax appeal review procedure.
The ultimate authority over tax assessors is lodged with the
Director of the Division of Taxation (Director), who is empowered
to remove a municipal tax assessor for cause, N.J.S.A. 54:1-36,
or to bring an action in Superior Court to compel an assessor's
removal. N.J.S.A. 54:1-37. That the Legislature entrusted to
the Director the authority to remove assessors for cause clearly
reflects a legislative determination that municipal governing
bodies or officials should not be empowered to influence or
intimidate assessors by removal or threats of removal prior to
the expiration of their terms in office.
In 1967 the Legislature enhanced the status and independence
of assessors by creating a comprehensive examination and
certification process. L. 1967, c. 44. Pursuant to N.J.S.A.
54:1-35.30, only individuals holding an assessor's certificate
could be appointed or reappointed to the office of tax