(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).
Argued January 2, 2002 -- Decided February 25, 2002
PER CURIAM
This appeal considers whether provisions of the Exempt Firemen's Tenure Act, N.J.S.A. 40A:14-60 to -65
(Act), precluded the defendant from abolishing plaintiff's position as Assistant Superintendent of the Department of
Public Works (DPW) for good faith economic reasons unrelated to plaintiff or the quality of his performance.
The facts of this matter are taken from the Appellate Division's decision, which is published at
336 N.J.
Super. 578, 581-83. Plaintiff joined the defendant's volunteer fire department in 1968. In 1977, plaintiff received
a certificate of exemption, pursuant to N.J.S.A. 40A:14-55 to -59. In 1990, the defendant adopted an ordinance that
appointed plaintiff to a laborer position in the DPW. In 1991, the defendant created by ordinance a new salaried
position of Assistant Superintendent of the DPW in an effort to avoid having to pay overtime on the existing
foreman's position. Plaintiff was appointed to the position of Assistant Superintendent in 1992. During the next
four years, DPW's workforce was reduced by the defendant from eighteen to nine employees in part by privatizing
trash collection and recycling. In 1996, a new mayor and council majority took office and faced a budget shortfall
caused by increased spending in prior years and by the State's elimination of a program that provided funding to
densely-populated municipalities. Defendant reviewed its spending and reduced it in 1996 and every year into
1999. As part of this process, the mayor and counsel adopted an ordinance eliminating plaintiff's position in 1996.
Plaintiff remained on the work force as a laborer.
Plaintiff filed a complaint and sought injunctive relief restraining defendant from enforcing the ordinance
and reinstating his position and salary. Injunctive relief was denied. A bench trial was held on the claim that
defendant's adoption of an ordinance eliminating plaintiff's position violated the Act. The trial court found that
N.J.S.A. 40A:14-65 precluded defendant from abolishing plaintiff's position as assistant superintendent.
The Appellate Division affirmed and concluded that the Act precluded the defendant from abolishing
plaintiff's position for good faith economic reasons.
HELD: The Act does not prohibit a public entity subject to its provisions from abolishing a position or office held
by an exempt fireman for good faith economic reasons.
1. The Court is persuaded that the analysis set forth by the Appellate Division in Roe v. Borough of Upper
Saddle River,
336 N.J. Super. 566 (2001), accurately reflects the underlying legislative purpose of the Act. (P. 2).
2. Although cases will arise in which the public entity's actual intent in abolishing a position may be
contested, the Court disagrees that pretextual reasons will be difficult to identify and refute. (P. 3)
3. Here, the defendant reduced the number of DPW workers from eighteen to nine between 1992 and 1996.
The work force reduction was largely attributable to the defendant's 1994 decision to transfer trash collection and
recycling responsibility to private companies. In 1996, defendant faced a budget shortfall of approximately
$300,000 that was attributable in part to excessive expenditures during the prior year and to an anticipated reduction
in state aid of approximately $187,000. The enactment of an ordinance eliminating plaintiff's position reflected the
Borough's determination to reduce unnecessary expenditures in order to reduce the anticipated budget deficit.
Although no longer in a supervisory capacity, plaintiff remains a member of the DPW workforce. This record
indicates that the defendant abolished the plaintiff's position for good faith economic reasons, and not for the
purpose of terminating plaintiff's services. (Pp. 3-4).
The judgement of the Appellate Division is REVERSED, and the matter is REMANDED to the Law Division.
JUSTICE VERNIERO, dissenting, in which JUSTICES LONG and ZAZZALI join, would affirm the
judgment of the Appellate Division substantially for the reasons expressed in its opinion. Justice Verniero would
resolve this conflict in favor of the firefighter because he believes the Legislature intended the tenure provision to
apply broadly, except in those instances marked by “widespread economic depression or mandatory retrenchment.”
N.J.S.A. 40A:14-65. Justice Verniero contends further that discerning the true intent of a municipality in
abolishing an exempt fireman's position would require costly litigation and discovery.
JUSTICE ZAZZALI, dissenting, believes that there is little if any difference between abolishing an
exempt fireman's position and terminating the fireman's services. Even if there is a distinction, Justice Zazzali
believes that the Court's opinion establishes an almost insurmountable obstacle for firefighters, and he expresses
concern about the potential for future misuse by governing bodies. He believes further that the legislative intent
favors exempt firefighters. Because this appeal presents a difficult and close legal question, Justice Zazzali believes
that it presents an apt vehicle for the Legislature to address.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN AND LaVECCHIA join in the
Court's PER CURIAM opinion. JUSTICE VERNIERO filed a separate dissenting opinion in which
JUSTICES LONG AND ZAZZALI join. JUSTICE ZAZZALI has also filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
102 September Term 2000
DONALD G. VIVIANI,
Plaintiff-Respondent,
v.
BOROUGH OF BOGOTA,
Defendant-Appellant.
Argued January 2, 2002 -- Decided February 25, 2002
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
336 N.J. Super. 578 (2001).
Andrew T. Fede argued the cause for
appellant (Contant, Atkins, Rogers, Fede,
Keane & Hille, attorneys).
Emil S. Cuccio argued the cause for
respondent (Cuccio and Cuccio, attorneys).
John K. Justin submitted a letter in lieu of
brief on behalf of amicus curiae New Jersey
State Exempt Fireman's Association, Inc.
(Thomas J. Orr, attorney).
Andrew T. Fede submitted a letter brief on
behalf of amicus curiae New Jersey State
League of Municipalities (Contant, Atkins,
Rogers, Fede, Keane & Hille, attorneys).
PER CURIAM
In a published opinion the Appellate Division concluded that
provisions of the Exempt Firemen's Tenure Act, N.J.S.A. 40A:14-60
to -65 (Act), precluded the Borough of Bogota from abolishing
plaintiff's position as Assistant Superintendent of the
Department of Public Works (DPW) for good faith economic reasons
unrelated to plaintiff or the quality of his performance.
Viviani v. Borough of Bogota,
336 N.J. Super. 578, 583 (2001). A
different panel of the Appellate Division has construed the Act
differently, concluding that it does not prohibit a public entity
subject to its provisions from abolishing a position or office
held by an exempt fireman for good faith economic reasons. Roe
v. Borough of Upper Saddle River,
336 N.J. Super. 566, 573-75
(2001). Although we acknowledge that plausible arguments can be
advanced to support either interpretation of the Act, we are
thoroughly persuaded that the analysis set forth in Roe more
accurately reflects the underlying legislative purpose.
Accordingly, we reverse the judgment of the Appellate Division
and remand the matter to the Law Division for further proceedings
consistent with that disposition.
We add only these additional observations. Our dissenting
colleagues express the concern that the construction of the Act
we adopt will invite litigation focused on discerning the true
intent of the public entity. Post at ___ (slip op. at 4)
(Verniero, J., dissenting); post at ___ (slip op. at 3)(Zazzali,
J., dissenting). Although we agree that cases will arise in
which the public entity's actual intent in abolishing a position
may be contested, we disagree that pretextual reasons for such
action will be difficult to identify and refute. The record
before us, however, reflects no such issue.
It reveals that between 1992, the year plaintiff was
appointed Assistant Superintendent, and 1996, the Borough reduced
the number of DPW workers from eighteen to nine. That work force
reduction was largely attributable to the Borough's 1994 decision
to transfer the DPW's trash collection and recycling
responsibility to private companies. Moreover, in 1996 the
Borough faced a budget shortfall of approximately $300,000 that
was attributable in part to excessive expenditures during the
prior year as well as an anticipated reduction in state aid of
approximately $187,000. The enactment of an ordinance
eliminating plaintiff's position reflected the Borough's
determination to reduce unnecessary expenditures in order to
reduce the anticipated budget deficit. Accordingly, this record
indicates that the Borough abolished the position of DPW
Assistant Superintendent for good faith economic reasons, and not
for the purpose of terminating plaintiff's services. Although no
longer in a supervisory capacity, plaintiff remains a member of
the Borough's DPW work force.
Reversed and remanded.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, and
LaVECCHIA join in this opinion. JUSTICE VERNIERO filed a
separate dissenting opinion in which JUSTICES LONG and ZAZZALI
join. JUSTICE ZAZZALI has also filed a separate dissenting
opinion.
SUPREME COURT OF NEW JERSEY
A-
102 SEPTEMBER TERM 2000
DONALD G. VIVIANI,
Plaintiff-Respondent,
v.
BOROUGH OF BOGOTA,
Defendant-Appellant.
VERNIERO, J., dissenting.
This appeal centers on N.J.S.A. 40A:14-65, which protects
the holder of an exempt firefighter's certificate (certificate)
from a change in job title or reduction in emoluments except in
certain circumstances. The Borough of Bogota (Borough)
eliminated plaintiff's position in one of its departments, but
continued to employ him in a lower-paid position. The Borough's
asserted reason for that action was to save money in the face of
reductions in State aid. Viviani v. Borough of Bogota,
336 N.J.
Super. 578, 582 (App. Div. 2001).
As a certificate holder, plaintiff claimed before the trial
court that his tenure rights had been violated by the change in
position and salary. The trial court and the Appellate Division
agreed. Id. at 583. I would affirm the judgment of the
Appellate Division substantially for the reasons expressed in
Judge Lintner's comprehensive and persuasive opinion. Id. at
583-92.
The statute provides:
No department of the State government, nor
any board of chosen freeholders of a county,
governing body of a municipality or board of
education shall abolish, change the title or
reduce the emoluments of any office held by
an exempt fireman having tenure therein, for
economy reasons or otherwise, for the purpose
of terminating his services, except in time
of a widespread economic depression or
mandatory retrenchment, but in any such case,
the termination or reduction shall be made in
the same ratio as in the case of other
employees.
In view of that provision, the panel below concluded that even
though the Borough may have acted out of a good-faith desire to
reduce spending, the statute required enhanced protection to
plaintiff in this setting.
The majority reaches a contrary conclusion based
substantially on the rationale articulated in Roe v. Borough of
Upper Saddle River,
336 N.J. Super. 566 (App. Div. 2001).
Focusing on the phrase “for the purpose of terminating his
services,” the Roe court concluded that the statute's protections
apply only when a municipality's objective is to terminate or
demote a particular firefighter. Id. at 577. In essence, so
long as the municipality's workforce restructuring is not done as
a pretext for terminating the employee's services, the
municipality may so act for simple economic reasons, even when
not confronted with “widespread economic depression [or]
mandatory retrenchment[.]” Ibid.
That rationale reflects a plausible interpretation of the
statute. In my view, however, the interpretation advanced by the
Viviani court is equally persuasive. I resolve this conflict in
favor of the firefighter because of my belief that in enacting
the statute, the Legislature intended the tenure provision to
apply broadly, except in those instances marked by “widespread
economic depression or mandatory retrenchment[.]” N.J.S.A.
40A:14-65. The Roe and Viviani courts each discuss the statute's
legislative history, which does not need to be repeated here.
Suffice it to say, I agree with the Viviani court's
interpretation of that history in support of its disposition.
As noted, under Roe's approach, the statute would not permit
the termination of an individual firefighter in these
circumstances, but it would permit the elimination of that
employee's position. From the firefighter's perspective, he or
she suffers the same injury under either scenario. In short, I
do not believe that the Legislature intended a firefighter's job
security to be dependent on such technical distinctions. See
Jersey City Chapter of the Prop. Owners Protective Ass'n v. City
Council of Jersey City,
55 N.J. 86, 100 (1969) (observing that
“[w]hen all is said and done, the matter of statutory
construction will not justly turn on . . . technisms . . .; it
will justly turn on the breadth of the objectives of the
legislation and the commonsense of the situation”).
Strict adherence to the Roe approach raises another concern.
The panel in Roe recognized that “even if a municipal employer
posits economy or other good faith reasons for the abolishment of
a tenured exempt fireman's position, it cannot do so if the real
object is to remove the individual.” Roe, supra, 336 N.J. Super.
at 573. The problem, however, is that Roe provides no mechanism
to discern the true intent of a municipality. Arguably, then,
costly litigation and discovery would be necessary in every case
in which a tenured employee has suffered under the guise of “good
faith action that results in the incidental abolishment of a
protected exempt fireman's position[.]” Id. at 577.
The better approach, as embodied in Viviani, is to avoid
speculation or litigation in respect of the motives underlying a
municipality's conduct. I suggest no bad faith in this case. I
simply agree with the Viviani court's analysis that looks beyond
the manner in which a municipality has characterized or labeled
its workforce restructuring and focuses instead on the impact of
that action on the tenured firefighter. In other words, the
Viviani approach eliminates the need to inquire into a
municipality's alleged bad faith or other forms of possible
mischief. I find that approach to be more consonant with the
Legislature's intent than the one articulated in Roe.
A firefighter is entitled to a certificate after performing
firefighting duties for seven years, provided other criteria are
satisfied. N.J.S.A. 40A:14-56. In my view, the statute embodies
an implied agreement in which volunteer firefighters accept the
dangers inherent in that work and give freely of their time and
talent in exchange for enhanced job security. As aptly noted by
the court below, “[t]he services provided by volunteer firemen
benefit the community and are directly related to public safety
and welfare, which is an elementary function of government.”
Viviani, supra, 336 N.J. Super. at 590.
Although laudable, a municipality's objective in reducing
expenditures by employing management efficiencies cannot override
the statute's protections. Indeed, in the face of governmental
downsizing, the language in N.J.S.A. 40A:14-65, which prohibits
the termination or demotion of a tenured firefighter “for economy
reasons or otherwise,” takes on particular significance.
Consistent with what I perceive to be the Legislature's purpose
in enacting the statute, we should uphold a firefighter's tenured
status unless the statute's text undisputedly requires otherwise.
It does not in this instance. Thus, I would affirm the judgment
below.
Justices Long and Zazzali join in this opinion.
SUPREME COURT OF NEW JERSEY
A-
102 SEPTEMBER TERM 2000
DONALD G. VIVIANI,
Plaintiff-Respondent,
v.
BOROUGH OF BOGOTA,
Defendant-Appellant.
ZAZZALI, J., dissenting.
I join in Justice Verniero's dissent. I write separately to
address the following concerns: there is little if any
difference between abolishing a position and terminating
services; even if there is a distinction, the Court today
establishes an almost insurmountable obstacle for firefighters;
and the legislative intent favors plaintiff.
The Borough of Bogota (Borough) distinguishes between
termination of a firefighter when the governing body is
“abolishing the position,” which the Borough claims is
permissible, and the discharge of a firefighter for the purpose
of “terminat[ing] his services,” which the Borough admits is
impermissible. In my opinion, this is a distinction without a
difference. As Judge Harris observed at the conclusion of trial,
one can “put whatever gloss you want upon what Bogota did. But
its purpose was to terminate this exempt fireman's services.” In
that respect, I would defer to the trial court's finding and its
“feel of the case.”
Although abolition of the position and termination of
services may not be the same literally, in practice they are
virtually identical. When a governing body abolishes a position,
it almost invariably terminates services. To call it something
else does not make the termination of services less real to the
terminated employee.
Even assuming that there is a difference between abolishing
a position and terminating services, that does not end the
inquiry. It is only the starting point, for this decision will
have substantial precedential consequences. I agree with my
dissenting colleague that this holding may lead to mischief.
Mischief will beget manipulation if we permit governing bodies
to legitimize the termination of a firefighter by invoking
either “economy reasons” or “other good faith reasons” - a
catch-all that opens the door to abuse. In essence, we have
facilitated the ability of municipalities to terminate services
pretextually under the guise of the “abolition of a position.”
It is no answer that pretextual discharges can be tested in
the crucible of trial. Apart from its costs, the more
unsettling problem is that litigation may become a futile
exercise that will be unsuccessful in all but a few cases. I
recognize that courts are capable of determining whether bad
faith exists. See Sons of Thunder, Inc. v. Borden, Inc.,
148 N.J. 396, 419 (1997). But before a court finds it, a plaintiff
has to prove it. Although I do not doubt the good faith of the
Borough in this case, I am concerned about the potential for
future misuse by governing bodies. All a municipality need do
is pass an ordinance invoking “economy reasons” or other “good
faith” reasons in a “Whereas” clause, and the ordinance almost
certainly will pass muster. General welfare ordinances will
enable municipalities to transform rationalizations into
reasons. Any reason, with citation to a ledger or a lawyer,
will suffice. Any one of a myriad of concerns, real or feigned,
that face a municipality every day may provide an excuse.
Although the field abounds with “how-to” manuals, it takes
little imagination to manufacture a need.
If and when litigation ensues, the municipality need only
invoke the talisman of “good faith.” The plaintiff's claim is
then likely to evanesce, for the plaintiff faces the almost
insurmountable task of demonstrating otherwise. Direct evidence
of bad faith is seldom discovered before or during litigation;
circumstantial evidence of bad faith sufficient to overcome the
employer's portrayal of good faith is almost as rare. These
observations are not speculative or conclusory. Lullo v.
International Ass'n of Fire Fighters,
55 N.J. 409, 424 (1970),
Galloway Township Board of Education v. Galloway Township Ass'n
of Education Secretaries,
78 N.J. 1, 9 (1970), and In re
Bridgewater Township,
95 N.J. 235, 240-41 (1984), counsel our
courts to turn to the federal labor law experience for guidance.
When considering the “actual motive” for a discharge, “it is
seldom that direct evidence will be available that is not also
self-serving.” Shattuck Penn Mining Corp. v. N.L.R.B.,
362 F.2d 466, 470 (9th Cir. 1966). Further, “direct evidence is seldom
attainable when seeking to probe an employer's mind to determine
the motivating cause of his actions.” N.L.R.B. v. Bird Mach.
Co.,
161 F.2d 589, 592 (1st Cir. 1947). It follows then, as the
National Labor Relations Board observed in a seminal decision on
motivation, that “such matters of motive [] cannot in the nature
of things be proved other than circumstantially.” Universal
Camera Corp.,
79 N.L.R.B. 379, 386 n.2 (1948) (citing Bird Mach.
Co., supra,
161 F.2d 592), vacated on o.g.,
340 U.S. 474,
71 S.Ct. 456,
95 L.Ed. 456 (1951). The exempt firefighter will
overcome those difficult odds only in the unique situation when
he or she finds the elusive clue, either a memorandum that
incriminates or a supervisor who inculpates. Experience
demonstrates that disproving good faith or rebutting a pretext,
particularly one mapped out on paper, is an herculean task, and
in my view an unreasonable one.
Beyond this is the spectre of a “costly” litigation and
discovery process. Ante at __ (slip op. at 4) (Verniero, J.,
dissenting). The employee and his or her counsel cannot compete
effectively against the considerable resources of governing
bodies and their liability carriers. Both the difficulty in
proofs and the prohibitive costs create a playing field that is
more than uneven.
Finally, the trial court and the Appellate Division
correctly discerned the legislative intent. I believe that the
Legislature intended to allow a governing body to abolish an
exempt firefighter's position in the case of wide-spread
economic depression or mandatory retrenchment. However, I do
not believe that the Legislature intended to allow abolition of
a position for reasons of “economy” alone. N.J.S.A. 40A:14-65.
The lower courts' views represent a fair balance of the
conflicting interests. I recognize that this appeal presents a
difficult and close legal question. The courts in Viviani v.
Borough of Bogota,
336 N.J. Super. 578 (App. Div. 2001), and Roe
v. Borough of Upper Saddle River,
336 N.J. Super. 566 (App. Div.
2001), presented principled positions for their competing views.
However, the balance tilts in favor of plaintiff, given the
legislative purpose of the statute to provide “enhanced job
security” to “firefighters [who] accept the dangers inherent in
that work and give freely of their time and talent[.]” Ante at
__ (slip op. at 5) (Verniero, J., dissenting). Because of that
legislative purpose, and because firefighters take risks on a
daily basis and do so without pay, any doubt in this matter
should be resolved in favor of the firefighter.
In my view, this dispute presents an apt vehicle for the
Legislature to address and remedy the majority's disposition.
NO. A-102 SEPTEMBER TERM 2000
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
DONALD G. VIVIANI,
Plaintiff-Respondent,
v.
BOROUGH OF BOGOTA,
Defendant-Appellant.
DECIDED February 25, 2001
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINIONS BY Justices Verniero and Zazzali