NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0655-07T30655-07T3
DAVID HORSNALL,
Plaintiff-Respondent/
Cross-Appellant,
v.
WASHINGTON TOWNSHIP (MERCER
COUNTY) DIVISION OF FIRE;
DAVID FRIED, MAYOR,
individually and in his
capacity as Mayor of the
Township of Washington; MARY
CAFFREY, ADMINISTRATOR,
individually and in her
capacity as Township
Administrator; SONJA WALTER,
PRESIDENT TOWNSHIP COUNCIL,
individually and in her
capacity as President of
Council; DAVID BOYNE, VICE
PRESIDENT, COUNCIL,
individually and in his
capacity as Council Member;
RONDA HYAMS, COUNCIL MEMBER,
individually and in her
capacity as Council Member;
WILLIAM LESNIAK, COUNCIL
MEMBER, individually and in
his capacity as Council
member; CLIFF LUCIDO,
individually and in his
capacity as Member of the
Township Evaluation Committee;
KEVIN BRINK, CHIEF,
individually and in his
capacity as Fire Chief; MARTY
MASSERONI, individually and in
his capacity as Member of the
Township Evaluation Committee;
CHUCK PETTY, individually and
in his capacity as Member of
the Township Evaluation
Committee; and MICHAEL MCGOWAN,
individually,
Defendants-Appellants/
Cross-Respondents.
________________________________________________________________
Argued October 20, 2008 - Decided
Before Judges Carchman, Sabatino and
Simonelli.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County,
Docket No. L-418-07.
Eric L. Harrison argued the cause for
appellants/cross-respondents (Methfessel
& Werbel, attorneys; Mr. Harrison, of
counsel; Keith J. Murphy, on the brief).
John P. Rowland argued the cause for
respondent/cross-appellant (Alterman &
Associates, attorneys; Mr. Rowland,
on the brief).
The opinion of the court was delivered by
CARCHMAN, P.J.A.D.
Defendants, Washington Township (Mercer County) Division of Fire, Mayor David Fried, Township Administrator Mary Caffrey, President of the Township Council Sonja Walter, Township Council Vice-President David Boyne, Council members Ronda Hyams and William Lesniak, Fire Chief Kevin Brink, Township Evaluation Committee Members Marty Masseroni, Cliff Lucido and Chuck Petty, and Michael McGowan appeal from a judgment of the Law Division ordering the reinstatement of plaintiff David Horsnall, a Captain in the former Washington Township Fire District, to the position of Captain in the newly-created Washington Township Division of Fire. We affirm and conclude that the creation of the Division of Fire to replace a previously existing Fire District does not eliminate a Fire District fireman's statutory tenure protections, N.J.S.A. 40A:14-19 and N.J.S.A. 40A:14-25. On plaintiff's cross-appeal, we affirm the denial of counsel fees.
These are the relevant facts informing our opinion. In 2006, the Township determined that it would replace its Fire District and create the Division of Fire. To implement the change, the Township, on June 22, 2006, and pursuant to N.J.S.A. 40A:14-91, adopted Resolution 2006-105, which set forth the time and a date, July 27, 2006, for a hearing on an application to dissolve the Township's Fire District.
Thereafter, on July 27, 2006, the Township Council adopted Resolution 2006-155, authorizing the dissolution of the Fire District and applying to the Local Finance Board of the Department of County Affairs, pursuant to N.J.S.A. 40A:5A-20, to create the Division of Fire within the Township's Department of Public Safety. That action was followed by the Local Finance Board adopting a resolution approving the dissolution of the Fire District.
One of the critical issues of concern was the status of the Fire District employees under the new proposal. That question was answered when Caffrey, the Township Business Administrator, sent packets to all Fire District employees with applications for employment with the Division of Fire, including notification that the current employees of the Fire District needed to apply for employment with the Township to serve in the Division. The packet established a November deadline for applications as well as interviews.
Plaintiff filed a timely application, and on November 28, 2006, Caffrey wrote to plaintiff that the Evaluation Committee had considered his application. Caffrey then advised plaintiff that based on the Committee's recommendation, she could not extend an offer of employment. She told plaintiff that he should not report for the remainder of his scheduled shifts through the end of 2006 but he still would be fully compensated for that period. In addition, since the Division of Fire "[would organize [on] January 1, 2007," he was eligible for COBRA on that date.
On November 30, 2006, the Township Council passed, and on December 5, 2006, adopted, Ordinances 2006-40 and 2006-41. Ordinance 2006-40 created the Division of Fire and revised the Township Code. It also provided that upon dissolution of the Fire District, the Township shall assume all fire protection services for the same geographic region previously serviced by the Fire District. Ordinance 2006-41 dissolved the Fire District effective midnight on December 31, 2006, provided that all conditions in the Ordinance were met.
On February 16, 2007, plaintiff filed a five-count complaint in lieu of prerogative writs against defendants alleging: (1)