Opinion
DOCKET NO. A-1762-12T4
08-26-2014
JOSEPH A. MARINI, Plaintiff-Respondent. v. CITY OF CAMDEN, Defendant-Appellant.
Marc A. Riondino, City Attorney, attorney for appellant (Jason J. Asuncion, Assistant City Attorney, on the brief). O'Brien, Belland & Bushinsky, LLC, attorneys for respondent (Robert F. O'Brien, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa, Koblitz and O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-521-11. Marc A. Riondino, City Attorney, attorney for appellant (Jason J. Asuncion, Assistant City Attorney, on the brief). O'Brien, Belland & Bushinsky, LLC, attorneys for respondent (Robert F. O'Brien, on the brief). PER CURIAM
Plaintiff Joseph A. Marini, a former Chief of the Camden Fire Department, filed suit against defendant City of Camden (the City), asserting he was entitled to a payout for unused benefits that was more than $200,000 greater than the amount he received upon his retirement in 2009. The areas of contention are the calculation of plaintiff's severance pay, his accrual and use of compensatory time (comp time), and the City's reduction of the amount paid for his unused vacation time. Marini argued, and the trial court found, that pursuant to an implied contract, he was entitled to have his severance pay calculated based on a ten-hour workday, rather than on the eight-hour workday specified in his appointment and reflected on his timesheets. He also successfully argued that he was entitled to comp time based on an oral promise and past practice and that the City wrongfully reduced his unused vacation time in its severance payments. The City appeals from the judgment entered after a bench trial that awarded judgment in Marini's favor in the amount of $2 07,552.84, arguing that his claim to an implied contract cannot supersede the legal authority that governs the terms of his employment.
"Severance" is the term used for the payment the City makes to employees at retirement for accrued and unused vacation and sick leave. Marini testified that unused compensatory time was included as well.
Against the background of extraordinary legislative effort directed explicitly at Camden's disastrous economic situation, the persuasive capacity of arguments that these issues should be governed by promises or prior policy, unsupported by any statute, ordinance, contractual agreement, or arbitration award, is nil. For the reasons that follow, we reverse.
I
The facts regarding Marini's employment must be viewed within the context of the City's financial circumstances, the extraordinary actions taken by the Legislature to attempt to remediate that distress, and the City's uneven success in implementing reform.
Marini worked under a collective bargaining agreement (CBA) during his years in the department until 2000. At the end of 1999, before assuming duties as acting chief of the department, Marini met with Preston Taylor, who was then the City's business administrator. Marini testified Taylor told him that "with the exception of salary and wage, [he] should expect to receive all the benefits and entitlements accorded to the chief before" him. Marini relies heavily upon this representation to support his claim for benefits.
However, Marini's advancement to acting chief and, later, chief came at a time when the City's acute financial distress was commanding the attention of commentators, see Anne Marie Vassallo, Solving Camden's Crisis, 33 Rutgers L.J. 185 (2001), and, more significantly, the State. In May 2000, the City came under the supervision of the Local Finance Board (LFB) pursuant to the Local Government Supervision Act of 1947 (Supervision Act), N.J.S.A. 52:27BB-1 to -100, following a judicial determination there had been a "gross failure" by the City to comply with the Local Budget Law, N.J.S.A. 40A:4-1 to -89, and the Local Fiscal Affairs Law, N.J.S.A. 40A:5-1 to -50, that "substantially jeopardize[d] the fiscal integrity of the municipality." N.J.S.A. 52:27BB-55; City of Camden v. Kenny, 336 N.J. Super. 53, 56 (App. Div. 2000).
In September 2000, the LFB adopted a resolution that directed a new business administrator for the City, specifically Norton Bonaparte, be appointed pursuant to N.J.S.A. 52:27BB-66.1. Id. at 57. Taylor resigned from the position of business administrator, effective October 31, 2000. Ibid. At the time, Marini was still serving as acting Chief.
The City defied the LFB's resolution and took action to appoint someone else as business administrator. Ulrich H. Steinberg, Jr., Director of the Division of Local Government Services (DLGS Director), then issued an order, which noted that the appointment of Bonaparte "was the only appointment authorized under the Board's resolution," terminated the status of the person appointed by the City, and appointed Bonaparte. The City appealed from that order, arguing the Supervision Act did not authorize the State to appoint a business administrator for a municipality. Id. at 59-60.
In Kenny, we soundly rejected this argument. We observed, "there is no inherent right of local self-government beyond the control of the State, and that municipalities are but creations of the State, limited in their powers and capable of exercising only those powers of government granted to them by the Legislature." Id. at 61 (quoting Wagner v. Newark, 24 N.J. 467, 474 (1957)). We then stated,
[W]e have no difficulty concluding that the strong remedial powers granted the LFB to correct gross financial failings at the municipal level must prevail over the general power of the Mayor and City Council to appoint and confirm a business administrator, as in more normal circumstances. See N.J.S.A. 40:69A-43(b). The Supervision Act grants to the LFB and the Director of the Division of Local Government Services clear authority and power to supervise municipalities in need of financial assistance. . . . The purpose of the Supervision Act, N.J.S.A. 52:27BB-54, calls for the State to impose "special restraints" to "forestall serious defaults" which "burden local taxpayers and destroy the efficiency of local services." Where local government fails and crumbles, the State has been empowered to reassemble the pieces.
[Id. at 61-62.]
We noted further, "[R]emedial measures deemed essential by the LFB cannot be frustrated or overborne by the governing body of an ailing municipality." Id. at 64. Of particular relevance here, N.J.S.A. 52:27BB-66.1 provides in pertinent part,
The board may authorize the municipality to appoint or dismiss unclassified persons in managerial positions necessary to the rehabilitation of the financial affairs of the municipality without regard to any procedural or other statutory requirements.
The board may authorize the director to fix the hours and terms and conditions of employment for all municipal employees, and to appoint and dismiss municipal employees, to the extent permitted under the provisions of Title 11 of the Revised Statutes and of any collective bargaining agreements in effect.
[Emphasis added.]
It was pursuant to this authority, expressly provided under the Supervision Act, that DLGS Director Steinberg wrote a letter to Bonaparte, dated April 27, 2001, stating in part,
I am in receipt of a hiring freeze waiver form to appoint a Fire Chief in compliance with the wage and hiring freeze imposed by the Local Finance Board.
The waiver to appoint a Fire Chief is approved with a salary of $97,000 per year with a "five and two" work schedule that is the same as that of the Business Administrator. If holidays are to [be] paid with cash in lieu of days off, recognized City holidays shall be treated as work days.
It is undisputed that Marini was appointed Fire Chief pursuant to this letter. In fact, Marini testified that the DLGS Director's advance approval was required for his permanent appointment. He had no separate contract setting forth the terms of his employment and, as Chief, was no longer subject to the terms of the CBAs that governed the employment of rank-and-file firefighters and superior officers.
Marini testified that prior to the State takeover in 2000 and while he served as acting Chief, he worked four ten-hour days. The "five and two" work schedule set forth in the DLGS Director's letter reflected a different work schedule consisting of an eight-hour workday for five days with two days off. Marini's timesheets for the period from December 27, 2004 through November 30, 2009, which he approved as Department Head, show that he worked a "five and two" schedule.
Marini maintained that, despite the work schedule in the DLGS Director's letter that authorized his appointment and set forth its terms, his severance was properly calculated in 2009 based on a ten-hour workday, as it would have been prior to the State takeover, rather than the "five and two" schedule. According to Marini's estimate, if severance was calculated based on a ten-hour day, he was entitled to a payout of $442,900.61 at retirement. In contrast, severance based on an eight-hour day resulted in a severance payout of $235,348.03.
Marini recognized that, as a result of the reorganization and the change in work schedules, there had been a question about how severance would be calculated and sought clarification from Juliette M. Smith, the personnel officer for the City. She responded by memorandum dated January 31, 2002, which stated in part,
By this memorandum, I am confirming that the method currently being used to calculate severance in ten-hour days will continue. This method will be used for the Fire Chief and the Deputy Fire Chief of Administration.
Marini testified that the business administrator had authorized Smith to make this representation. No evidence was presented to corroborate this hearsay statement.
Camden's continued financial distress and lack of progress prompted further legislative action. In 2002, the Legislature enacted the Municipal Rehabilitation and Economic Recovery Act (MRERA), N.J.S.A. 52:27BBB-1 to -65. As part of its declared reasons, the Legislature stated, "[I]t is incumbent upon the State to take exceptional measures, on an interim basis, to rectify certain governance issues faced by" the municipalities in such long-term financial distress. N.J.S.A. 52:27BBB-2(o). As of 2007, Camden was the only municipality in which the MRERA had been implemented. N.J.S.A. 52:27BBB-2.2(b); see Senate Community and Urban Affairs Committee, Statement to S. 3006 (June 21, 2007).
To be a qualified municipality under the MRERA at the time, "the municipality already [had to] be subject to the supervision of a financial review board and the State Local Finance Board pursuant to other statutory schemes . . . [and] the municipality [had to] be relying on state funding for at least fifty-five percent of its 'total budget.'" Camden City Bd. of Educ. v. McGreevey, 369 N.J. Super. 592, 598 (App. Div. 2004) (citing N.J.S.A. 52:27BBB-3).
Pursuant to the MRERA, the Governor appointed a "chief operating officer" (COO) for Camden for a "rehabilitation term" to reorganize municipal governance and finances in conjunction with the mayor and the municipality's governing body. N.J.S.A. 52:27BBB-7 to -30; McGreevey, supra, 369 N.J. Super. at 597-98. The initial rehabilitation term of five years was later extended to a ten-year term, which the Legislature considered "more realistic." N.J.S.A. 52:27BBB-2.2(d) and -7(c)(1); see also L. 2007, c. 176, § 3 (effective September 16, 2007); In re City of Camden, 429 N.J. Super. 309, 316-18 (App. Div.), certif. denied, 215 N.J. 485 (2013).
N.J.S.A. 52:27BBB-9 reallocated powers including, but not limited to, those of the mayor, N.J.S.A. 52:27BBB-9(e), to the COO, stating in part,
[A]ll the functions, powers and duties heretofore or hereafter assigned by any statute, regulation, ordinance, resolution, charter or contract for municipal
operations, municipal organization and reorganization . . . and the hiring and firing of department heads, managers and supervisory employees shall be reallocated to the chief operating officer.
[N.J.S.A. 52:27BBB-9(a).]
The MRERA further granted the COO "the power to perform all acts and do all things consistent with law necessary for the proper conduct, maintenance, rehabilitation and supervision of the qualified municipality." N.J.S.A. 52:27BBB-9(b) (emphasis added). The department heads, including the business administrator, appointed pursuant to N.J.S.A. 52:27BBB-11 were required to "fulfill those responsibilities delegated to them by the chief operating officer . . . ." The MRERA also required each ordinance and resolution adopted by the governing body to be submitted to the COO for approval or veto. N.J.S.A. 52:27BBB-23(a)(1)(a).
Although the governing body may override a veto by a two-thirds vote, the COO then had the option of submitting the action to a special arbitrator whose decision was not subject to appeal. N.J.S.A. 52:27BBB-23(a)(1)(b).
Marini's salary as Chief was fixed by ordinance. N.J.S.A. 40A:9-165; Liebeskind v. Mayor & Mun. Council of Bayonne, 265 N.J. Super. 389, 397-98 (App. Div. 1993). In July 2004, the ordinance fixing salary ranges for fire and police personnel, approved by the COO, included the following:
The Fire Chief, Police Chief and Deputy Chiefs of both departments are not entitled to overtime with the exception of employees who are members of a recognized collective bargaining unit and the respective collective bargaining agreement allows for overtime.The relevant ordinance passed in 2005 contained the same language. Camden, N.J., Ordinance MC-4113, § 2 (2005).
[Camden, N.J., Ordinance MC-04-3978, § 2 (emphasis added).]
Marini agrees that he is not entitled to overtime. However, he contends he is entitled to comp time. He testified that, in addition to vacation, sick, and holiday time, the City granted comp time consisting of twenty days off yearly to fire department management.
As an exempt employee under 29 U.S.C.A. § 213 of the Fair Labor Standards Act (FLSA), 29 U.S.C.A. §§ 201-219, Marini was not entitled to overtime, even before these ordinances were enacted. He contends, however, that he was entitled to comp time, which is not expressly prohibited for exempt employees by the FLSA. See 29 C.F.R. § 541.604(a)(2014).
There is no ordinance, contract, or arbitration award that affords Marini comp time. He bases his entitlement to comp time upon Taylor's oral promise made before the City came under State supervision, long-standing practice, the fact that annual statements of his benefits included twenty days' worth of comp time, and that he was given permission to carry over comp time from year to year.
A State Commission of Investigation (SCI) report criticized the use of comp time in the fire department, stating there was no official authorization for such use. The SCI's audit showed that Marini and his two deputy chiefs took a combined total of 336.5 comp days between 2003 and 2008, while accumulating sick and vacation leave that could be cashed in at retirement.
Marini testified that in 1990, as part of labor negotiations with fire department management employees, the City established a policy of granting comp time to exempt employees. He produced a draft of a City of Camden Personnel Handbook, dated October 10, 1990, to support this argument. No finalized version of the Personnel Handbook was introduced in evidence. In addition, Marini testified that the policy of granting overtime was established in a Memorandum of Understanding (MOU) between the City and fire management. This document was also never produced.
Christine Tucker, who assumed the position of business administrator for the City in April 2003, prepared a memorandum dated January 30, 2004, in response to a request for clarification of benefits from Department Directors and Assistant Department Directors. The memorandum stated that pursuant to the relevant ordinance, as of July 1, 2003, "the Business Administrator . . . [and] Department Directors . . . receive the same health benefits, sick and vacation time as the classified service. . . . These positions are not entitled to overtime. Nor are these positions entitled to 'comp time.'"
At the bottom of the memorandum is the following: "This policy does not apply to the uniformed services." In an affidavit submitted by Tucker in this litigation, she appears doubtful that she authored this sentence, stating, "To my recollection and understanding, if I did indeed include the aforesaid statement . . . it was intended only to address the fact that Deputy Fire Chiefs - Non-Administration do receive overtime; and not to accept or acknowledge that the head of the Fire Department in any way was similarly entitled to unilaterally assign and receive overtime/compensatory time."
However, the City's actions over the course of Marini's employment conflict with its stated position that he was not entitled to comp time. Each year, the City conducted an audit of leave time. The statements Marini received for the years 2003 through 2008 show he was granted twenty comp days per year and reflect the accrual of comp time as well as other leave time.
In 2009, the business administrator advised Marini that the COO had issued a directive, halting the use of comp time by all City employees pending further review. Marini wrote to the COO, retired Judge Theodore Z. Davis, requesting his authorization to continue comp time beyond calendar year 2008. Noting that the annual duty schedule for the Fire Chief and Deputy Fire Chiefs required on-call duty after normal business hours, Marini stated,
As management, Chief and Deputy Chiefs of course remain ineligible for overtime pay. In lieu thereof each are granted twenty (20) annual COMP days at 160 annual hours for On Call duty at no monetary cost to the City. Such annual compensation has been granted since 1991 as originally set forth in policy memorialized in MOU form Department of Administration.As Marini acknowledged in his letter to the COO, the 1991 MOU could not be located for production during the State audit, and it was not produced at trial.
By memorandum dated March 4, 2009, the COO responded unequivocally, "Management is not entitled to compensatory time[.]" He stated his position as follows:
[W]hat has happened is illegal and will not be countenanced. Each such officer has contractual leave which could have been used.
This error must cease immediately for it is the obligation of the City not to perpetuate an error or theft of time.
Marini had no written contract with the City. However, the DLGS Director's letter specified that his work schedule and benefits were to be the same as those of the business administrator, terms that were also reflected in Tucker's memorandum.
The COO followed this memorandum with Executive Order No. 5, dated March 20, 2009, which was directed to all City employees. The COO noted there had been cases of "extraordinary" discrepancies in the accrual records, "such as accruals of more leave than can legally be carried over." He stated that all balances as of December 31, 2008, and thereafter were being audited and that records would be adjusted to be consistent with relevant labor contracts if errors were detected. He directed that all vacation and holiday leave earned during 2009 or thereafter must be used in the year earned or carried over for one year pursuant to the applicable bargaining agreement and that "[n]o further accumulation is permitted for that carried-over time." He further revoked a memorandum from the business administrator that provided an exception for accumulated time on the books as of December 31, 2008. Thus, the COO effectively opened the books for all prior years to be audited and corrected to conform to applicable ordinances and agreements. The City conducted an audit of all employees' time records pursuant to Executive Order No. 5.
Prior to the COO's directive, Marini was given permission to carry over his accrued comp and vacation days by business administrators Bonaparte and Tucker.
Marini agreed that the City had the prerogative to audit comp days and make adjustments to enforce standards. Moreover, Marini conceded that the business administrator had the authority, even before the Executive Order, to abrogate accumulated comp days. He noted that, one year, the business administrator had abrogated forty comp days as an "excessive" accumulation.
The City began docking employees for the use of allegedly unauthorized vacation and holiday time, retroactively divesting earned vacation time from employees. As a result of the audit, the City retroactively abrogated over 200 of Marini's earned vacation days.
Marini retired at the end of 2009. He forwarded a copy of Smith's January 31, 2002 memorandum to the City bureau personnel for calculation of his severance. It must be noted that Smith's January 2002 memorandum was written before the MRERA, the appointment of the COO, the reorganization of the department, the COO's directive, and Marini's own timesheets that reported he worked a "five and two" schedule. However, apparently relying upon the Smith memorandum, the City Treasurer calculated Marini's severance based on a ten-hour workday.
Marini subsequently received an amended severance statement that revised the severance calculation to be based on an eight-hour schedule. He wrote to Tucker by letter dated January 15, 2010, asserting that the eight-hour calculation was erroneous. Referring to the reorganization under State supervision in 2002, he stated that in "negotiations for reorganization, fire management and State representatives agreed upon . . . a continuing maintenance of severance calculation at ten hours for management personnel." He enclosed a copy of Smith's memorandum as support.
Tucker responded by letter dated January 26, 2010. Noting Marini's reliance upon a memo from "a former Personnel Officer . . . which you suggest requires the calculation of severance based on a ten (10) hour day," Tucker dismissed the memo as authority for such a calculation and cited the letter from the DLGS Director that authorized Marini's appointment as Fire Chief:
The letter clearly states that you were promoted with a "five and two" work schedule that is the same as the Business Administrator. This letter clearly indicates that [Department of Community Affairs, Division of Local Government Services] authorized your promotion with an eight (8) hour day. Therefore, the severance calculation should be based on the eight (8) hour day authorized by the State at the time of your promotion.
By letter dated August 16, 2010, Marini wrote to Tucker, again disputing the amended statement of severance. He stated that, as a result of the City's annual audit for 2009, "the City divested 173.5 earned vacation days in retroactive abrogation for nine (9) years of appropriated COMP days from an accrued balance of 300 vacation days. Notwithstanding such rescission, a balance of 29 accrued vacation days remain unaccounted [for] in the amended severance." Noting that former Fire and Police Chiefs and deputy chiefs had been "fully compensated upon retirement for all accrued vacation time," he said, "In essential fairness I would certainly expect to be treated no differently."
By letter dated August 17, 2010, Tucker denied Marini's request for an adjustment of his severance payout, stating,
As you know all employee time records were audited pursuant to the former State-appointed Chief Operating Officer's Executive Order No. 5 to bring them in to compliance with applicable collective bargaining agreements, the City's ordinances and personnel policies. In your case, the State [Commission] of Investigation also reviewed the time records.
There is no basis for rejecting the results of the audit and the State Commission of Investigation review of the same.
In 2009, the SCI conducted an inquiry regarding perceived waste and abuse in public employment. The SCI's report of December 2009, titled "The Beat Goes On: Waste and Abuse in Local Government Employee Compensation and Benefits," criticized the use of comp time in the Camden Fire Department. Already in the process of auditing employee time balances pursuant to the COO's directive, the City took no action on the recommendations made in the report.
At retirement, the City paid Marini for 97.5 of the 300 vacation days he had accrued. The City also divested him of the 3.5 remaining comp days he earned after taking off vacation days. As a result of the retroactive abrogation of Marini's earned vacation days and the City's calculation of his severance based on eight-hour days, his severance was reduced by $207,552.58.
Marini filed this action against the City, alleging breach of contract, breach of implied covenant of good faith and fair dealing, violation of the New Jersey Wage Payment Law, N.J.S.A. 34:11-4.1 to -4.14, and later amended his complaint to add a count for wrongful abrogation of comp time and vacation time (promissory estoppel).
Following a bench trial, the trial judge found in favor of Marini and entered judgment against the City in the amount of $207,552.85. Citing the oral assurance Marini received from Taylor before he assumed the duties of acting Chief and the Smith memorandum, the trial judge found the City was obligated to calculate Marini's severance based on a ten-hour workday. He discounted the letter from the DLGS Director as requiring a different result, stating it did not specify how severance should be calculated. The trial judge also found that there was an implied contract for the award of comp time based on Taylor's promise, prior practice, the fact that twenty days were awarded to Marini each year, and the fact that he was given permission to carry over days. Finally, the trial judge ruled that the COO's Executive Order could not justify the retroactive reduction of Marini's vacation time because the COO lacked the authority to do so.
In this appeal, the City argues that the terms of Marini's employment were set by legislative authority and not subject to any implied contract. As a result, the City states, the eight-hour workday established by the DLGS Director when Marini was appointed Chief governs the calculation of his severance. The City argues further that Marini is not entitled to comp time based upon an implied contract theory and that it was entitled to reduce his accumulated vacation time by the number of comp days he took in lieu of vacation time.
II
The judge's decision here includes both factual findings and legal conclusions, which present different standards of review. The scope of our review of a judge's factual findings in a non-jury trial is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999). We do not interfere with the findings of the trial court if based upon substantial, credible evidence in the record. State v. Diaz-Bridges, 208 N.J. 544, 565 (2012). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference" and is subject to de novo review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Ordinarily, the question of "[w]hether the parties acted in a manner sufficient to create implied contractual terms is a question of fact." Troy v. Rutgers, 168 N.J. 354, 366 (2001). However, that question here must be answered within context - that of a public employer subject to the supervision of the State and constrained by the bounds of legal authority for its actions. Even under "more normal circumstances" than the financial crisis in Camden, the powers of municipalities are "limited in their powers and capable of exercising only those powers of government granted to them by the Legislature." Kenny, supra, 336 N.J. Super. at 61.
Perhaps state supervision of local affairs is no more fully developed than in the area of municipal finance, where the Legislature has established a comprehensive system pertaining to municipal budgets, debt and salaries. Indeed, the Legislature has complete control over the financial affairs of a political subdivision which it has created. And, while the Legislature has dedicated fiscal and budgetary matters of a municipality exclusively to its governing body, N.J.S.A. 40:48-1, these functions are to be carried out only in the manner in which the Legislature establishes.Public employment therefore differs from private employment, which is based on a contractual relationship. "[T]he relationship between . . . public officials and the agencies appointing them[] 'is not ipso facto contractual in character,' but is instead controlled by the statutes pursuant to which the public official has been appointed." Walsh v. State, 290 N.J. Super. 1, 15-16 (App. Div. 1996) (Skillman, J., dissenting) (quoting Espinos v. Twp. of Monroe, 81 N.J. Super. 283, 288 (App. Div. 1963)), rev'd on dissent, 147 N.J. 595 (1997); see also Miskowitz v. Union Cnty. Utils. Auth., 336 N.J. Super. 183, 192-93 (App. Div. 2001) (rejecting argument that issue regarding utility's termination of plaintiffs' employment contracts should be resolved by simple contractual interpretation); Cooper v. Mayor of Haddon Heights, 299 N.J. Super. 174, 180 (App. Div. 1997). A basic presumption in public employment is that one who accepts a public office or position does so "with full knowledge of the law as to salary, compensation and fees," and that "all limitations prescribed must be strictly observed." Walsh, supra, 290 N.J. Super. at 15 (Skillman, J., dissenting) (citations omitted). The limitations imposed supersede conflicting representations made to the employee, whether made by one who apparently has the authority to do so or not. See Maltese v. Twp. of N. Brunswick, 353 N.J. Super. 226, 228-29 (App. Div. 2002); Walsh, supra, 290 N.J. Super. at 15-16 (Skillman, J., dissenting).
[City of Ocean City v. Somerville, 403 N.J. Super. 345, 363 (App. Div. 2008) (citations omitted) (emphasis added).]
In his concurring opinion in Troy, supra, 168 N.J. at 385, Justice Verniero emphasized that the "Court has never directly extended the requirements of Woolley to public employers, and recently declined an invitation to so do." He stated further that the Court's reliance on Shebar v. Sanyo Bus. Sys. Corp., 111 N.J. 276 (1988), did not suggest that implied contracts may now be routinely recognized between public employers and employees." Id. at 385-86. We see nothing in the circumstances of this case that warrants the application of an implied contract to Marini's employment.
Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284, modified on other grounds, 101 N.J. 10 (1985).
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III
It is undisputed that the DLGS Director's letter authorized Marini's appointment as Chief and established his work schedule as "five and two" eight-hour days. Marini's timesheets for the years prior to his retirement, which he approved, reflect that he worked a "five and two" schedule as established in the DLGS Director's letter.
Marini acknowledged that this was a change from the weekly schedule of four ten-hour workdays that existed prior to the State's assuming supervision over the City. Understanding that this change impacted the calculation of his severance at retirement, he sought clarification of that from the personnel officer, who assured him that severance would continue to be calculated on a ten-hour day basis.
The only legal authority for defining Marini's work schedule and, consequently, the basis for calculating his severance, was that contained in the DLGS Director's letter. That condition of employment was established by the Director pursuant to legislative mandate and could not be trumped by representations from Taylor or Smith, who lacked such authority. See Maltese, supra, 353 N.J. Super. at 228-29. Moreover, as we have noted, Smith's memorandum was written before the MRERA, the appointment of the COO, the reorganization of the department, the COO's directive, and Marini's own timesheets that reported he had worked a "five and two" schedule.
The initial severance statement that calculated severance based on a ten-hour workday was clearly an error and, we note, followed Marini's submission of Smith's memorandum which, he contended, confirmed the ten-hour workday as the basis for calculating severance. This error was corrected by the City in a revised statement that conformed the severance calculation to what was legally authorized.
IV
Although there is more support for Marini's claimed entitlement to comp time, that argument fails as well.
As we have noted, there is no statute, ordinance, or contract that provides him with this benefit. Marini's reliance upon a draft of a personnel handbook to establish his right to comp time is misplaced. Marini's compensation had to be established by ordinance, and any benefit not explicitly included in such an ordinance had to be authorized by statute or contract. See, e.g., N.J.S.A. 40A:14-135 (providing that a municipality may grant comp time to a police officer who is required to appear as a witness in court outside his or her assigned duty hours). Even if Marini had produced a final version of the handbook adopted by the municipality that addressed comp time, it is clear that a personnel manual does not supersede relevant ordinances. See Golden v. Cnty. of Union, 163 N.J. 420, 433 (2000) (concluding that "[b]ecause the Legislature has unambiguously designated assistant prosecutors as at-will employees, [a] manual's provisions are not enforceable as applied to plaintiff"); Cooper, supra, 299 N.J. Super. at 179.
Marini's testimony regarding a Memorandum of Understanding (MOU) reached in the early 1990s is also unpersuasive. In the first instance, the MOU was never produced, either for the COO or for trial. Any probative value it might have is substantially undermined by the fact the MOU predated the "extraordinary measures" taken by the State to right Camden's financial ship, a circumstance which itself has great weight in assessing the City's right to take remedial action.
In Miskowitz, supra, 336 N.J. Super. at 185, we addressed another employment issue within the context of "a dire financial emergency." Id. at 194. The Union County Utilities Authority (UCUA) faced an urgent fiscal crisis after New Jersey's solid waste management system was abrogated by federal courts as violating the Commerce Clause. Atl. Coast Demolition & Recycling, Inc. v. Bd. of Chosen Freeholders, 112 F.3d 652, 669 (3d Cir.), cert. denied sub nom., Essex Cnty. Utils. Auth. v. Atl. Coast Demolition & Recycling, Inc., 522 U.S. 966, 118 S. Ct. 412, 139 L. Ed. 2d 316 (1997), amended, 135 F.3d 891 (3d Cir. 1998). As part of its efforts to meet this crisis, UCUA terminated the plaintiffs' fixed-term employment contracts. We rejected plaintiffs' arguments that the matter could be "fairly resolved by contractual interpretation." Miskowitz, supra, 336 N.J. Super. at 192-93. We clarified we were not making a determination whether a governmental entity may, under ordinary circumstances, terminate a fixed term employment contract merely to effectuate economies or promote efficiency." Id. at 194. Our decision was based upon the express recognition that "the circumstances confronting the UCUA were extraordinary and unprecedented." Ibid. Noting our concern with public funds, we concluded "the UCUA acted within its express and implied statutory powers when it abolished plaintiffs' positions. In the face of a dire financial emergency, the local authority acted within its rights in terminating plaintiffs despite their fixed term contracts." Id. at 195. Clearly, Camden's financial circumstances provide ample support for the remedial action taken pursuant to legislative mandate.
As Marini correctly points out, the City's actions in awarding comp time and allowing him to carry over time, reflect a policy consistent with his position. These actions are not dispositive of the issue, however. The awarding of comp time, unsupported by any ordinance, statute or CBA, was not authorized by law. The persons who either promised or authorized comp time lacked the authority to bind the City to such an obligation. See Maltese, supra, 353 N.J. Super. at 228-29. We therefore conclude that Marini was not entitled to comp time.
V
Finally, we turn to the City's reduction of Marini's vacation days based upon his use of comp time. The COO was given broad powers by the Legislature. See N.J.S.A. 52:27BBB-9. The MRERA was clearly presented as an extraordinary measure undertaken by the State for the purpose of restoring financial integrity to Camden. As remedial legislation, it is to be construed broadly to effect this purpose. N.J.S.A. 52:27BBB-2.
Marini acknowledged that the City had the power to adjust his comp time and to correct errors, even before the Supervision Act and MRERA went into effect. The audit conducted at the COO's directive and the corrective actions undertaken as a result plainly fall within the scope of the authority the Legislature delegated to him. Without the power to order revisions to comply with statutes, ordinances, and CBAs, the COO would be limited to the merely investigative task of identifying areas of fiscal mischief without the ability to rectify them. The Legislature clearly intended otherwise.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION