WILLIAM S. BARNETT VS. COMMISSIONERS OF FIRE DISTRICTÂ NO. 1 IN HARRISON TOWNSHIP(L-1374-13, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0523-15T2
WILLIAM S. BARNETT,
Plaintiff-Appellant,
v.
COMMISSIONERS OF FIRE
DISTRICT NO. 1 IN HARRISON
TOWNSHIP,
Defendant-Respondent.
_____________________________________________
Argued March 21, 2017 – Decided October 27, 2017
Before Judges Messano and Guadagno.
On appeal from the Superior Court of New
Jersey, Law Division, Gloucester County,
Docket No. L-1374-13.
John F. Pilles, Jr., argued the cause for
appellant.
Eric J. Riso argued the cause for respondent
(Platt & Riso, PC, attorneys; Mr. Riso, on
the brief).
PER CURIAM
Plaintiff William S. Barnett appeals from the August 21,
2015 order of the Law Division granting partial summary judgment
to defendant Commissioners of Fire District Number 1 in Harrison
Township, dismissing two counts of plaintiff's complaint with
prejudice.
We repeat the essential facts from our prior opinion,
Harrison Twp. Fire Dist. v. Barnett, No. A-2950-13 (App. Div.
Apr. 22, 2015):
William S. Barnett was employed by the
Harrison Township Fire District (HFD) as a
paid part-time firefighter. On February 28,
2013, while off-duty, Barnett was leaving the
parking lot of the Telford Inn when he hit a
curb, causing him to lose control of his
vehicle. He proceeded onto the grass in front
of the Telford Inn before striking a utility
pole. He attempted to continue onto Bridgeton
Pike but the vehicle became disabled.
Police responded and determined that
Barnett was under the influence of alcohol.
He was arrested and charged with driving while
intoxicated (DWI), N.J.S.A. 39:4-50. On May
2, 2013, Barnett pled guilty to DWI in
municipal court and his driver's license was
suspended for ninety days.
As a condition of employment, HFD
requires its employees to hold a valid
driver's license. A disciplinary hearing was
scheduled for May 31, 2013, to determine what
sanctions would be imposed as a result of
Barnett's DWI conviction. One week before the
hearing was scheduled, HFD filed an order to
show cause seeking to stay the disciplinary
hearing. HFD also sought declaratory relief
determining that Barnett, as an "at will"
employee, was not entitled to notice or a
hearing with respect to any disciplinary
action HFD might take against him.
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The Law Division judge denied the motion
for a stay, finding that the only harm HFD
would suffer if the hearing went forward were
monetary damages, and that HFD had failed to
show that the law was settled or that there
was a likelihood of success on the merits.
The judge found that Barnett was entitled to
procedural due process, because his employment
isn't employment subject to a term. . . .
This is a position that Mr. Barnett took
expecting that he would be continued in
that employment, but for the fact that
he was, perhaps, unwise in his conduct
on a particular day, that job now appears
to be in jeopardy.
[H]e then, at least, has that reasonable
expectation of continued employment that
now gives him an opportunity to be able
to now speak to the discipline that gets
imposed against him.
The disciplinary hearing went forward on
May 31, 2013. At the hearing, Barnett
conceded that he had pled guilty to DWI and
his license was suspended for ninety days.
Hearing Officer Todd J. Gelfand, Esquire,
found that HFD has the "lawful authority and
discretion to set forth and enforce job
requirements for its personnel in a rational,
non-discriminatory way . . . [and] has done
so by imposing a requirement of valid driving
privileges." Gelfand recommended that Barnett
be suspended for however long his license was
suspended (ninety days or longer) on the
ground of an inability to perform his duties.
HFD had also filed a second charge
against Barnett of conduct unbecoming a public
officer. Gelfand found that HFD had failed
to provide sufficient notice to Barnett of the
additional disciplinary charge and
recommended that Barnett be disciplined only
on the basis of the "inability to perform
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duties" charge. He made no recommendation as
to "misconduct or any other type of 'fault-
based' charge or charges." The Board of Fire
Commissioners of Harrison Township adopted
Gelfand's recommendation by resolution on
August 15, 2013.
HFD then charged Barnett again with
conduct unbecoming, and sought his
termination. Gelfand conducted a second
disciplinary hearing on July 17, 2013. Relying
on municipal firefighter statutes, N.J.S.A.
40A:14-19 and 14-28.1, Gelfand concluded that
HFD was within its discretion to determine how
seriously it wanted to punish Barnett for his
off-duty misconduct. Gelfand recommended that
Barnett's removal from HFD be sustained. The
Board of Fire Commissioners adopted Gelfand's
second recommendation on August 15, 2013.
The parties returned to the Law Division
on October 25, 2013, for argument on whether
HFD was required to afford Barnett a hearing
prior to imposing discipline. We have not
been provided with a transcript for this
hearing. As Barnett had already been provided
with notice and a hearing at the time of oral
argument, we are left to surmise that neither
party raised the issue of mootness before the
judge.
On January 30, 2014, the judge placed an
extensive oral decision on the record
comprising fifty pages of transcript. The
judge supplemented the decision with a two-
page written summary dated January 31, 2014.
The judge found that Barnett was entitled
to notice and a hearing but was an at-will
employee. The judge noted that although
N.J.S.A. 40A:14-17 created a presumption of
continued employment for municipal
firefighters, there was no corresponding
provision in the fire district statutes. As
such, the judge found that the notice and
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hearing protections afforded by N.J.S.A.
40A:14-19 likewise applied only to municipal,
but not fire district, employees.
The judge determined that N.J.S.A.
40A:14-28.1 explicitly mentions fire district
employees to the extent that they may violate
internal rules and regulations. As such, that
provision "control[led] this case and
obligated [HFD] to provide a timely complaint"
notifying Barnett of the charges against him
because Barnett was charged with violating
HFD's internal rules and regulations.
Implicit in that obligation was Barnett's
"right to respond, which by other
nomenclature, is 'a hearing.'" The judge was
careful to clarify that no notice or hearing
would be required to discipline an HFD
employee charged with misconduct other than
violating internal rules and regulations.
[slip op. at 1-6].
Barnett appealed, claiming "Paid or Part Paid Fire
Department and Force" includes those departments and forces
which are under direct municipal control as well as fire
districts. HFD cross-appealed maintaining the motion judge
erred when he determined that Barnett was entitled to a hearing
as to his suspension.
Without reaching the merits, we dismissed the appeal as
moot. We noted that when Barnett's appeal was filed, an actual
controversy existed as to whether HFD was required to provide
Barnett with a hearing to discipline him. By the time the
appeal reached us, Barnett had been provided with two
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disciplinary hearings; first, prior to his ninety-day suspension
on May 31, 2013, and then prior to his termination on July 17,
2013. Barnett, supra, slip op. at 9.
While that appeal was pending, Barnett filed a complaint in
lieu of prerogative writs seeking reinstatement to employment
and damages. Barnett also alleged his removal violated the
Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to
34:19-14, as it came in retaliation for his opposition to his
suspension and for filing an Open Public Records request (the
CEPA count).
We permitted that litigation to proceed and noted that the
"parties are free in that other case to raise any germane
issues, including their mutual contention that the trial court's
legal analysis of Barnett's employment status is vague or
internally inconsistent." Id. slip op. at 12
Defendants then moved for partial summary judgment, seeking
dismissal of the two non-CEPA counts. The motion judge granted
the motion and dismissed both counts, noting that he had
previously held that Barnett was an at will employee and, as
such, was not entitled to a disciplinary hearing.
On appeal, Barnett argues:
6 A-0523-15T2
POINT I
THE CLAUSE READING "PAID OR PART
PAID FIRE DEPARTMENT AND FORCE"
WITHIN N.J.S.A. 40A:14-19 INCLUDES
THOSE FIRE SUPPRESSION PERSONNEL
EMPLOYED BY FIRE DISTRICTS AS WELL
AS BY MUNICIPAL DEPARTMENTS.
POINT II
THE APPELLATE DIVISION HAS
PREVIOUSLY RECOGNIZED THE
APPLICATION OF N.J.S.A. 40A:14-19,
ET SEQ, TO FIRE DISTRICTS WHICH
PRECEDENT OUGHT NOT BE OVERRULED
AND/OR IGNORED.
POINT III
EVEN ASSUMING, ARGUENDO, THAT
N.J.S.A. 40A:14-19, ET SEQ, WAS
PROPERLY CONSTRUED AS LIMITED TO
MUNICIPAL "PAID OR PART PAID FIRE
DEPARTMENT OR FORCE," SAME SHOULD BE
MADE APPLICABLE TO FIRE DISTRICTS.
POINT IV
BY ONLY GIVEN EFFECT TO ONE PART OF
A UNIFIED STATUTORY SCHEME, THE
COURT BELOW CREATED AN INCONGRUOUS
RESULT.
POINT V
BOTH FIRE SUPPRESSION AND LAW
ENFORCEMENT PERSONNEL HAVE BEEN
CHARACTERIZED AS PARAMILITARY
ORGANIZATIONS ENGAGED IN ULTR-
HAZARDOUS EMPLOYMENT FUNCTIONS
PROVIDING ESSENTIAL PUBLIC NEEDS,
AND ACCORDINGLY, THE SAME TENURE
RIGHTS OUGHT BE PROVIDED TO
FIREFIGHTERS AS POLICE PERSONNEL
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REGARDLESS AS TO THE TYPE OR
CHARACTERIZATION OF GOVERNMENTAL
ENTITY FUNCTIONING AS PUBLIC
EMPLOYER.
POINT VI
THE TRIAL JUDGE ERRED BY DECLINING
TO REVIEW THE PROPERTY OF
GOVERNMENTAL ACTION EXERCISED BY
THE DISTRICT SUB JUDICE INCIDENTAL
TO ITS TERMINATION OF BARNETT'S
EMPLOYMENT.
We "review[] an order granting summary judgment in
accordance with the same standard as the motion judge." Bhagat
v. Bhagat, 217 N.J. 22, 38 (2014). We "must review the
competent evidential materials submitted by the parties to
identify whether there are genuine issues of material fact and,
if not, whether the moving party is entitled to summary judgment
as a matter of law." Ibid.; R. 4:46-2(c). A trial court's
determination a party is entitled to summary judgment as a
matter of law is "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).
When evaluating a motion record, we view the facts in a
light most favorable to the non-moving party, "keeping in mind
'[a]n issue of fact is genuine only if, considering the burden
of persuasion at trial, the evidence submitted by the parties on
the motion . . . would require submission of the issue to the
8 A-0523-15T2
trier of fact.'" Schiavo v. Marina Dist. Dev. Co., 442 N.J.
Super. 346, 366 (App. Div. 2015) (first alteration in original).
Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as
to any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." R. 4:46-
2(c).
Barnett first argues that both municipal fire departments
and fire districts are protected by the rights granted in
N.J.S.A. 40A:14-19, which provides in pertinent part:
Except as otherwise provided by law no
permanent member or officer of the paid or
part-paid fire department or force shall be
removed from his office, employment or
position for political reasons or for any
cause other than incapacity, misconduct, or
disobedience of rules and regulations
established for the government of the paid or
part-paid fire department and force, nor shall
such member or officer be suspended, removed,
fined or reduced in rank from or in office,
employment or position therein except for just
cause as hereinabove provided and then only
upon a written complaint, setting forth the
charge or charges against such member or
officer.
"Fire department or force" is defined as "the officers and
members organized to fight fires in the municipality." N.J.S.A.
40A:14-55.
9 A-0523-15T2
Conversely, N.J.S.A. 40A:14-28.1 explicitly states that
A person shall not be removed from employment
or a position as a paid member of a paid or
part-paid fire department or force, whether
that department or force be created,
established and maintained by a municipality,
fire district, regional entity, county,
authority, or the State, or suspended, fined
or reduced in rank for a violation of the
internal rules and regulations.
[emphasis added.]
N.J.S.A. 40A:14-28.1 also sets forth a requirement that a
complaint against an employee of the fire department must be
filed within forty-five days of receiving notice of the alleged
violation.
The motion judge determined that if N.J.S.A. 40A:14-19
applied to municipalities and fire districts, the Legislature
would have referenced both. As a result, the judge determined
that Barnett was entitled to a hearing on the charge that he
violated internal rules and regulations by failing to maintain a
driver's license, however because he was an at-will employee for
the first district, he could be terminated without notice or a
hearing on the conduct unbecoming charge. We doubt that the
Legislature intended such inconsistency in enacting both
statutes.
When interpreting a statute, we strive to "determine and
effectuate the Legislature's intent." Bosland v. Warnock Dodge,
10 A-0523-15T2
Inc., 197 N.J. 543, 553 (2009). "[W]e look first to the plain
language of the statute, seeking further guidance only to the
extent that the Legislature's intent cannot be derived from the
words that it has chosen." Pizzullo v. N.J. Mfrs. Ins. Co., 196
N.J. 251, 264 (2008). "Regardless of whether the language is
plain or whether ambiguities cause us to seek guidance from
sources other than the words the Legislature has chosen, our
'primary task . . . is to effectuate the legislative intent in
light of the language used and the objects sought to be
achieved.'" Bosland, supra, 197 N.J. at 554 (quoting State v.
Hoffman, 149 N.J. 564, 578 (1997)).
"[E]very effort should be made to harmonize the law
relating to the same subject matter. Statutes in pari material
are to be construed together when helpful in resolving doubts or
uncertainties and the ascertainment of legislative intent."
N.E.R.I. Corp. v. N.J. Highway Auth., 147 N.J. 223, 248-49
(1996). The principles of in pari materia apply in greatest
strength when the relevant statutes were enacted at the same
time, however "it may appropriately be applied even when the
statutes were adopted at different times and make no reference
to each other." Id. at 249 (quoting Mimkon v. Ford, 66 N.J. 426,
434 (1975)).
11 A-0523-15T2
Prior to 1971, N.J.S.A. 40:47-6 (currently codified at
N.J.S.A. 40A:14-19), provided, in relevant part, "[n]o person
shall be removed from office or employment in any . . . paid
fire department of any such municipality nor shall any member of
any municipal part paid fire department who is permanently
employed by the municipality at a fixed annual salary." N.J.S.A.
40:47-6 (repealed 1971). In 1971, this statute was recodified
and reflects the current language of N.J.S.A. 40A:14-19 with
respect to the term "paid or part-paid fire department or
force." Further, N.J.S.A. 40A:14-70 was implemented to allow
the creation of fire districts. In passing these statutes, the
Legislature intended to "eliminate[] duplication and
inconsistency" and provide an "orderly clarification of the laws
concerning county and municipal fire and police departments."
S.B. 626, L. 1971, c. 197.
The current version of the statute eliminated the phrases
"fire department of any such municipality" or "municipal part
paid fire department" and solely refers to a "paid or part-paid
fire department." That this change occurred during the same
amendments that provided the statutory language to create
districts, suggests that the statute was revised to include both
municipal and fire districts.
12 A-0523-15T2
Additionally, N.J.S.A. 40A:14-28.1 was added in 2006, to
"apply to firefighters employed by municipal fire departments;
municipal fire districts; regional fire districts; . . . a
county; or the State." A. 1550.
In Varsolona v. Breen Capital Servs., 180 N.J. 605, 623
(2004), the Court held that "subsequent legislation may be used
by a court as an extrinsic aid when seeking to discern earlier
legislative intent." In addition, statutory construction
principles support "preference of a more specific and more
recently enacted section of a statute" to aid in determining
legislative intent. State v. One 1976 Pontiac Firebird, 168 N.J.
Super. 168, 176 (App. Div. 1979).
N.J.S.A. 40A:14-28.1 was enacted approximately thirty-five
years after the recodification of N.J.S.A. 40A:14-19, and we
must view the more recent statute, and its inclusion of both
municipal fire departments and fire districts, in determining
that members of both organizations have a right to hearing under
N.J.S.A. 40A:14-19.
Further, in applying the principles of in pari materia, the
subsections of the statute should be read together to resolve
any inconsistency or ambiguity. See N.E.R.I. Corp., supra, 147
N.J. at 249. This logic follows even though the statues were
implemented at different times, in this case almost thirty-five
13 A-0523-15T2
years apart. See ibid. The above statutes both reference the
same subject matter, which includes disciplines and complaints
against employees of fire departments, therefore the statutes
should be applied in harmony, and to reflect a single
legislative intent.
Barnett relies on Horsnall v. Washington Twp. Div. of Fire,
405 N.J. Super. 304 (App. Div. 2009). In Horsnall, the
defendant township dissolved the fire district and created a
division of fire within the department of public safety. Id. at
309. All fire district employees were notified that they had to
apply to the township for employment to serve in the division.
Horsnall, a former captain of the fire district applied for
the position of captain in the newly created division, but was
not offered a position and was effectively terminated. Id. at
308-10. After Horsnall filed a complaint in lieu of prerogative
writs seeking reinstatement, a judge ordered reinstatement with
back pay. Id. at 310. The township appealed and we affirmed,
concluding that the creation of the Division of Fire to replace
a previously existing fire district did not eliminate a fire
district fireman's statutory tenure protections under N.J.S.A.
40A:14-19 and 40A:14-25. Id. at 308-9. We held:
If the Division of Fire chooses to create
fewer positions than those that were part of
the Fire District, it may do so; however,
14 A-0523-15T2
these provisions mandate that firefighters be
removed subject to certain rights including a
written complaint and hearing, and when
firefighting positions are decreased, that
members be demoted based on the inverse order
of their appointment.
[Id. at 319.]
While the facts of Horsnall are distinguishable, we held
there that the protections of N.J.S.A. 40A:14-19 apply to
employees of a fire district. Ibid. We are satisfied that the
Legislature intended for the notice and hearing requirements to
apply to both municipal fire departments and fire districts
alike and when a firefighter of a fire district is terminated,
the firefighter is entitled to the statutory protections of
N.J.S.A. 40A:14-19.
We reverse the order granting summary judgment and remand
for proceedings consistent with this opinion. We do not retain
jurisdiction.
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