Opinion
Decided November 9, 1956.
Mr. Joseph F. Kearney, attorney for plaintiff.
Mr. Lawrence E. Stern, of Counsel for defendant Public Employees' Retirement System of New Jersey ( Mr. Grover C. Richman, Jr., Attorney-General of New Jersey, attorney).
Mr. Edwin A.A. Muller, attorney for the Mayor and Council of the Borough of Ridgefield.
The facts in this case are undisputed and appear, by stipulation, in the pretrial order.
Plaintiff is the borough clerk of the Borough of Ridgefield. He was duly appointed borough clerk on March 15, 1938, and has held said office continuously from that date down to the present time.
At the general election in November 1945 the qualified voters of the Borough of Ridgefield adopted the State Employees' Retirement System of New Jersey, N.J.S.A. 43:14-1 et seq. The plaintiff elected to become a member of said retirement system, and was enrolled in said system on July 1, 1946. From that date to January 1955 the Borough of Ridgefield, with the knowledge and consent of the plaintiff, made regular deductions from his salary as borough clerk and paid same into the said system.
In January 1955 the State Employees' Retirement System was superseded by the Public Employees' Retirement System, N.J.S.A. 43:15A-1 et seq. Plaintiff elected to continue as a member of the Public Employees' Retirement System, and has been a member of said System continuously down to the present time. With plaintiff's knowledge and consent, deductions were made from his salary and paid into the Public Employees' Retirement System.
Plaintiff was born April 30, 1883. He became 70 years of age on April 30, 1953. The Borough of Ridgefield has indicated to the Public Employees' Retirement System that it intends to keep plaintiff in its employment as borough clerk.
Plaintiff contends that, pursuant to N.J.S.A. 40:46-7, he cannot be removed from his office as borough clerk except for good cause shown after a fair and impartial trial, and that he can hold his said office indefinitely during good behavior. Hence, he contends that he cannot be forced to retire.
The office of borough clerk is a public office. In New Jersey a public office is not created for the benefit of the holder thereof. It is created for the purpose of carrying on the operations of the government. The holder of a public office does not have any vested interest or proprietary rights therein, nor does he occupy the office under any contract. The cases supporting the foregoing principles of law are collected and cited in DeMarco v. Board of Chosen Freeholders, Bergen County, 36 N.J. Super. 382 , at page 386 ( Law Div. 1955).
N.J.S.A. 43:14-19 provides in part as follows:
"Every employee to whom this chapter applies shall be deemed to consent and agree to any deductions from his compensation required by this chapter and to all other provisions of this chapter."
N.J.S.A. 43:14-35 provides in part as follows:
"A member who shall have reached seventy years of age shall be retired by the board for service forthwith, or at such time within ninety days thereafter as it deems advisable, except that an employee reaching seventy years of age may be continued in service from time to time upon written notice to the board of trustees by the head of the department where the employee is employed."
N.J.S.A. 43:15A-25 provides in part as follows:
"Every employee to whom this act applies shall be deemed to consent and agree to any deduction from his compensation required by this act and to all other provisions of this act."
N.J.S.A. 43:15A-47 ( L. 1954, c. 84, sec. 47) provides in part as follows:
"A member who shall have reached 70 years of age shall be retired by the board for service forthwith, or at such time within 90 days thereafter as it deems advisable, except that an employee reaching 70 years of age may be continued in service from time to time upon written notice to the board of trustees by the head of the department where the employee is employed."
Tenure right may be modified by statute. Phelps v. State Board of Education, 115 N.J.L. 310 ( Sup. Ct. 1935) affirmed 116 N.J.L. 412 ( E. A. 1936).
The plaintiff has accepted the provisions of the Public Employees' Retirement System, N.J.S.A. 43:15A-1 et seq. He is, therefore, subject to the provisions of that act, and must accept retirement unless he is "continued in service from time to time upon written notice to the board of trustees by the head of the department where the employee is employed." N.J.S.A. 43:15A-47 ( L. 1954, c. 84, sec. 47). To this extent, he has waived the protection of N.J.S.A. 40:46-7.
In my opinion this is a suit which may be brought under N.J.S. 2 A:16-53, the Uniform Declaratory Judgments Law.