Opinion
DOCKET NO. A-2891-13T2
07-27-2015
ERNESTO MUNOZ, Plaintiff-Appellant, v. TOWN OF WEST NEW YORK, Defendant-Respondent.
Christopher P. Lenzo argued the cause for appellant (Lenzo & Reis, LLC, attorneys; Mr. Lenzo, of counsel and on the briefs). Mary Ann Kricko argued the cause for respondent (Gilberto M. Garcia, LLC, attorney; Gilberto M. Garcia, on the brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-621-13. Christopher P. Lenzo argued the cause for appellant (Lenzo & Reis, LLC, attorneys; Mr. Lenzo, of counsel and on the briefs). Mary Ann Kricko argued the cause for respondent (Gilberto M. Garcia, LLC, attorney; Gilberto M. Garcia, on the brief. PER CURIAM
Plaintiff Ernesto Munoz was hired by the Town of West New York to be the Municipal Administrator for a term of three years "commencing on October 1, 2011 and ending on October 2, 2014, unless terminated earlier by the Board of Commissioners in accordance with this agreement." On August 15, 2012, the Board of Commissioners unanimously approved a resolution terminating plaintiff from his position as Municipal Administrator effective as of July 1, 2012. The Commissioners also directed that plaintiff continue to receive his full salary for ninety days after the effective date of termination.
Plaintiff sued the Town for breach of contract, alleging he could only be terminated for cause. The matter came before the Law Division by way of cross-motions for summary judgment. After considering the arguments presented by the parties, the motion judge ultimately granted defendant's motion for summary judgment and dismissed plaintiff's complaint with prejudice. Plaintiff now appeals arguing the trial court erred in upholding defendant's decision to terminate him from the position of Municipal Administrator without cause in violation of both the terms of the three-year contract and N.J.S.A. 40A:9-137. We reject plaintiff's argument and affirm.
In reviewing a grant or denial of summary judgment, an appellate court is bound by the same standard as the trial court under Rule 4:46-2(c). Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013). We review a trial court's analysis of legal questions de novo. See id. at 92. "To the extent that the grant or denial of summary judgment is based on an issue of law, we owe no deference to an interpretation of law that flows from established facts." State v. Perini Corp., 221 N.J. 412, 425 (2015). Furthermore, because the trial court decided this issue as a matter of law, we will consider all of the facts in the light most favorable to plaintiff, including any reasonable inferences that may be drawn from such facts. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Defendant hired plaintiff to serve as Municipal Administrator under a written "Employment Agreement" for a term of three years,
commencing on October 1, 2011 and ending on October 2, 2014, unless terminated earlier by the Board of Commissioners in accordance with this agreement. Nothing contained herein shall preclude the Town from terminating Ernesto Munoz for cause, said termination to take effect 30 days following the town's issuance of notice of termination or as otherwise provided by Ordinance.
West New York's municipal government is organized under the Walsh Act, denoted by the Legislature as "the commission form of government law." N.J.S.A. 40:70-1. The municipal governing body consists of a board of five commissioners having "all the executive, administrative, judicial and legislative powers and duties heretofore had and exercised by the mayor and city council and all other executive or legislative bodies in such municipality, and shall have complete control over the affairs of such municipality." N.J.S.A. 40:72-1 and -2. The Commission form of government thus combines executive and legislative functions and authority into the office of Commissioner. City of Wildwood v. DeMarzo, 412 N.J. Super. 105, 111-12 (App. Div.), certif. granted, 205 N.J. 98 (2010), certif. dismissed as improvidently granted, 205 N.J. 270 (2011). --------
By letter dated July 9, 2012, the Assistant Town Attorney confirmed an earlier conversation he had had with plaintiff in which "you were advised that your services as the Business Administrator of the Town of West New York were no longer needed. As we discussed your termination is effective July 1, 2012, however pursuant to the statute you will continue to receive payment for 90 days." By letter dated August 17, 2012, the Town Attorney confirmed to plaintiff's counsel that "[plaintiff] was not terminated for cause."
Plaintiff's complaint alleged breach of contract "by terminating plaintiff's employment for reasons other than cause." In his memorandum of opinion explaining his decision to grant defendant's motion for summary judgment, the Law Division Judge cited Cabarle v. Governing Body of Pemberton, 167 N.J. Super. 129 (Law Div. 1979), aff'd o.b., 171 N.J. Super. 586 (App. Div. 1980) in support of his conclusion that, notwithstanding the three-year term at issue here, the term of employment of a municipal administrator remains at the pleasure of the governing body. We agree. Although the issue in Cabarle concerned the propriety of removing the municipal administrator by a vote of less than two-thirds of the members of the municipal governing body, id. at 132, the analytical approach employed by Judge Haines in Cabarle is applicable here.
N.J.S.A. 40A:9-137 describes the appointment process for a municipal administrator and, most importantly here, fixes the term of office to be "at the pleasure of the governing body":
Appointment to the office of municipal administrator shall be made by the mayor or chief executive officer of the municipality with the advice and consent of the governing body. In townships and in municipalities with a commission form of government the municipal administrator shall be appointed by majority vote of the governing body. The term of office of the municipal administrator shall be at the pleasure of the governing body.
[N.J.S.A. 40A:9-137 (emphasis added).]
In Cabarle, Judge Haines concluded that the language in N.J.S.A. 40A:9-137 fixing the term of office "at the pleasure of the governing body" must be linked to the removal mechanism in N.J.S.A. 40A:9-138. Cabarle, supra, 167 N.J. Super. at 138. This statute provides:
The municipal administrator may be removed by a 2/3 vote of the governing body. The resolution of removal shall become effective 3 months after its adoption by the governing body. The governing body may provide that the resolution shall have immediate effect; provided, however, that the governing body shall cause to be paid to the administrator forthwith any unpaid balance of his salary and his salary for the next 3 calendar months following adoption of the resolution.
[N.J.S.A. 40A:9-138 (emphasis added).]
Read together, the two statutes reveal that "the legislative direction that the administrator shall serve 'at the pleasure of the governing body' establishes a term that commences with appointment and terminates only upon adoption of a resolution of removal by a 2/3 vote of the governing body." Cabarle, supra, 167 N.J. Super. at 138. Here, the record shows that on August 15, 2012, the West New York Board of Commissioners unanimously adopted a resolution terminating plaintiff from his position of Municipal Administrator effective July 1, 2012. Consistent with N.J.S.A. 40A:9-138, defendant also compensated plaintiff by paying him ninety days' worth of salary retroactive to July 1, 2012.
The employment agreement does not require defendant to show cause to terminate plaintiff's employment. Any "compensation" due plaintiff for his termination is fixed by N.J.S.A. 40A:9-138. His position was "at will" as a matter of law under N.J.S.A. 40A:9-137.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION