In the Matter of the Borough of Roselle Appointing Authority CSC Docket No (Civil Service Commission, decided December 16, 2009)

Transcription

1 In the Matter of the Borough of Roselle Appointing Authority CSC Docket No (Civil Service Commission, decided December 16, 2009) The Division of State and Local Operations (SLO) requests that the Civil Service Commission (Commission) resolve a dispute regarding the appointing authority for the Borough of Roselle (Borough). By way of background, on July 16, 2009, SLO disapproved a layoff plan submitted by the Borough. Among numerous other deficiencies, SLO advised that the plan had not been signed by the appointing authority 1. Simultaneously, a signature card for Certifying Officers was submitted by the Borough that purported to designate Rhona Bluestein, Municipal Clerk, as the certifying officer. In response, SLO advised that it could not accept the signature card as a valid designation because it was not signed by Mayor Garrett Smith, who was the appointing authority. The Borough Council, represented by Allan C. Roth, Esq., responded to SLO s representation that the Mayor was the sole appointing authority, and only he could designate Bluestein to act as the certifying officer. Initially, the Borough Council asserts that it passed a resolution, with the Mayor s knowledge, designating Bluestein as the certifying officer on March 30, It argues that this resolution was valid and should be recognized by SLO. The Borough Council argues that N.J.S.A. 40A:60-5(g) only vests the Mayor with the authority to nominate subordinate officers, and he can only appoint those officers with the advice and consent of the Borough Council. The Borough Council maintains that it has the executive authority to appoint and remove employees, by virtue of N.J.S.A. 40A:60-6(b)3, which authorizes it to create positions, and N.J.S.A. 40A:60-6(b)5, which authorizes the Borough Council to remove officers for cause. Further, the Borough Council submits several past resolutions in which it had delegated its authority to appoint and remove employees, and it emphasizes that SLO has never questioned the authority of these individuals. Finally, the Borough Council contends that, in other forms of municipal government, the Mayor is expressly given the power of appointment and removal. See, e.g., N.J.S.A. 40A:61-1, et seq. Since that power is not expressly given to the Mayor in a borough form of government, it argues that it is reserved for the Borough Council. In response, the Mayor, represented by Heather Savage-Ford, Esq., contends that, although the Borough Council is given the authority to create 1 It is noted that, in its September 24, 2009 submission in this matter, the Borough Council avers that the shared services agreement that necessitated these layoffs is no longer viable.

2 offices and positions in N.J.S.A. 40A:60-6(b)3, there is no provision permitting the Council to make appointments to those offices and positions. Rather, the Mayor argues that he has the exclusive authority to appoint subordinates, pursuant to N.J.S.A. 40A:60-5(g). Moreover, the Mayor emphasizes that N.J.S.A. 40A:60-5(a) names him the head of municipal government, which inherently makes him the appointing authority. In response, the Borough Council asserts that the question at issue is not within the jurisdiction of the Commission, since it requires an exploration of the borough statutory scheme, an issue best left to the Superior Court. The Borough Council also argues that, if the Commission accepts the Mayor s position, the Borough would effectively be a modern day monarchy with the Council being stripped of the statutory authority granted to it. On the contrary, the Borough Council maintains that the Mayor only has the authority to nominate certain subordinate officers, i.e., the Police Chief, Fire Chief, Business Administrator, and other similar department heads. See N.J.S.A. 40A:60-5(g). It contends that it retains the power to confirm these appointments and to appoint employees to all other positions. In addition, the Borough Council maintains that granting the Mayor the power to act as the appointing authority would be to give him veto power over the Borough Council, which is not contemplated by the statutory scheme. It is noted that enforcement actions against and approval for new and pending appointments by Roselle were held in abeyance, pending the outcome of this matter. CONCLUSION N.J.A.C. 4A:1-1.3 defines appointing authority as a person or group of persons having power of appointment and removal. N.J.S.A. 40A:60-5(a) and (b) provide that, in a borough form of government, the Mayor shall be the head of the municipal government and shall have all those powers designated by general law. N.J.S.A. 40A:60-5(g) provides that the Mayor shall nominate and, with the advice and consent of the Council, appoint all subordinate officers of the borough. N.J.S.A. 40A:60-6(a) provides that the Borough Council shall be the legislative body of the municipality. N.J.S.A. 40A:60-6(b)3 provides that the Council may: [C]reate such offices and positions as it may deem necessary. The officers appointed thereto shall perform the duties required by law and the ordinances of the council.

3 N.J.S.A. 40A:60-6(b)5 provides that the Borough Council may remove any officer of the municipality, other than those officers excepted by law, for cause. In addition, general law provides that, except where otherwise provided, the governing body of a municipality may appoint and provide for the appointment of officers, agents, and employees as may be required for the execution of the powers conferred upon the governing body. See N.J.S.A. 40A:9-9. N.J.S.A. 40A:9-161 provides that, in non-civil Service jurisdictions, an employee who has tenure in office may not be removed except upon written charges, which shall be filed with the governing body. The governing body is given the authority to prescribe rules and regulations for the conduct of a hearing on the charges prior to removal. Initially, the Borough Council questions the Commission s jurisdiction in this matter. It is settled that the Commission has the right and duty to interpret and apply statutes, including those outside the Civil Service Act, to resolve the dispute before it. See Matter of Allen, 262 N.J. Super. 438, 444 (App. Div. 1993); In the Matter of Edison Cerezo, Police Officer, West New York, Docket No. A T3 (App. Div. October 15, 2004); John Kowaluk v. Township of Middletown, Docket No. A T1 (App. Div., August 6, 2004); In the Matter of Michael Giannetta (Merit System Board 2, decided May 23, 2000). Compare, In the Matter of Sybil Finney, Judiciary, Vicinage 8, Middlesex County (MSB, decided March 24, 2004) (The Board determined that it did not have jurisdiction to review a Judiciary employee s claim that the denial of a reasonable accommodation request violated the ADA, where the appeal was based exclusively upon an alleged ADA violation). In the instant matter, the parties are involved in a dispute regarding who the appropriate appointing authority is for purposes of appointing and removing employees, pursuant to the Civil Service Act. The resolution of this dispute turns on which party fits the definition of appointing authority in N.J.A.C. 4A: Thus, this dispute is properly before the Commission, and the Commission has the ability to interpret and apply the provisions of Title 40A of the New Jersey Statutes in order to resolve this matter. It is clear from the above statutory scheme that the Mayor has the power to appoint subordinate officers, subject to the advice and consent of the Borough Council. An office is a place in a governmental system created or 2 On June 30, 2008, Public Law 2008, Chapter 29 was signed into law and took effect, changing the Merit System Board to the Civil Service Commission, abolishing the Department of Personnel and transferring its functions, powers and duties primarily to the Civil Service Commission. In this decision, the former names will be used to refer to actions which took place prior to June 30, 2008.

4 recognized by the law of the state which either directly or by delegated authority assigns to the incumbent thereof the continuous performance of certain permanent public duties. Fredericks v. Board of Health of West Hoboken, 82 N.J.L. 200, 201 (1912). In contrast, a position has permanent and certain duties, but its duties are considered nongovernmental and not assigned by any public law. Fredericks, supra. An employment differs from both an office and a position in that its duties, which are nongovernmental, are neither certain nor permanent. Fredericks, supra at 202. See also, Miele v. McGuire, 31 N.J. 339 (1960); Hart v. Newark, 80 N.J.L. 600 (1910). Thus, the officers who the Mayor is able to appoint are those whose offices are created by statute, such as the Borough Attorney and Engineer. N.J.S.A. 40A:60-6(b)3. These provisions do not, however, enable the Mayor to appoint or remove employees who perform ministerial functions in support of these statutory offices, such as administrative and technical staff. In this regard, the Commission recognizes that the distinctions between offices, positions, and employments are often obscure. See Miele v. McGuire, 31 N.J. 339, 347 (1960). However, in this case, the Legislature recognized the distinction between officers and positions, and it was specific in limiting the Mayor s appointment power to officers. It is significant that the Legislature gave the Mayor the authority to appoint subordinate officers, while giving the Borough Council the authority to confirm the appointment of subordinate officers and to create such offices and positions as it may deem necessary. See N.J.S.A. 40A:60-5(e), N.J.S.A. 40A:60-5(g), and N.J.S.A. 40A:60-6(b)3. Thus, the Legislature only expressly vested the Mayor with the power to appoint statutory officers, not all employees of the Borough. Since N.J.S.A. 40A:60-6(c) provides that the Borough Council retains all executive authority not placed in the office of the Mayor, it follows that the Borough Council has the power to appoint all other employees of the Borough. In addition, the designation of the Mayor as the head of municipal government in N.J.S.A. 40A:60-5(a) does not, in and of itself, give the Mayor the power to appoint and remove municipal employees. For example, in the Town form of government, the Mayor is, likewise, designated as the head of municipal government. See N.J.S.A. 40A:62-5(b). However, in this form of government, the Mayor does not even have the authority to nominate subordinate officers, as this power is expressly given to the Town Council pursuant to N.J.S.A. 40A:62-6(d). The Commission s conclusion that the Borough Council serves as the appointing authority for all individuals except subordinate officers is bolstered by the provisions of general law. As noted above, general law confers upon governing bodies the power to appoint and remove officers, agents and employees. See N.J.S.A. 40A:9-9. Since the Borough Council is the governing body for Roselle, the Borough Council is the appointing

5 authority. As such, the resolution submitted, which delegated the Borough Council s authority to Bluestein, was valid and shall be recognized by the Commission. The Commission notes that this decision constitutes a departure from its past practice of recognizing the Mayor as the appointing authority for Civil Service jurisdictions operating under the Borough form of government. As such, this decision shall be applied only prospectively to other affected jurisdictions and shall not operate to disturb any past personnel actions. Thus, SLO is directed to notify the affected jurisdictions of this decision and to enforce the recognition of the Borough Councils as the appointing authorities. To this end, other affected jurisdictions should be given six months from the date of this decision to submit new signature cards reflecting their Borough Councils designees to act as the appointing authorities. ORDER Therefore, the Commission finds that the Borough Council for the Borough of Roselle is the appointing authority as defined in N.J.A.C. 4A: It is further ordered that the hold placed on the approval of pending appointments be lifted and the Commission record appointments and other personnel actions authorized by the Borough Council and/or its designee. Finally, the Commission directs SLO to notify the affected jurisdictions of this decision and ensure that this decision is applied prospectively as set forth above to all Civil Service jurisdictions operating under the Borough form of government. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.