Viviani v. Borough of Bogota , 170 N.J. 452 ( 2002 )

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 plaintiffs 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, 765 A.2d 1064 (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, 765 A.2d 779 (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 457, 790 A.2d at 168 (Verniero, J., dissenting); post at 459, 790 A.2d at 170 (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 plaintiffs 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 plaintiffs services. Although no longer in a supervisory capacity, plaintiff remains a member of the Borough’s DPW work force.

Reversed and remanded.