Bill Text: NJ A1687 | 2010-2011 | Regular Session | Introduced
Bill Title: Clarifies tenure protections for exempt firemen in public employment.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-01-12 - Introduced, Referred to Assembly Housing and Local Government Committee [A1687 Detail]
Download: New_Jersey-2010-A1687-Introduced.html
STATE OF NEW JERSEY
214th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2010 SESSION
Sponsored by:
Assemblyman JOHN J. BURZICHELLI
District 3 (Salem, Cumberland and Gloucester)
SYNOPSIS
Clarifies tenure protections for exempt firemen in public employment.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning tenure protections for exempt firemen in public employment and amending various parts of the statutory law.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. N.J.S.40A:14-62 is amended to read as follows:
40A:14-62. Whenever any person possessing an exempt fireman certificate holds an office, position or employment under a commission elected or appointed by the governing bodies of 2 or more municipalities, whose term of such office, position or employment is not fixed by law, the said person shall hold his office, position or employment during good behavior and shall not be removed therefrom for political reasons but only for good cause after a fair and impartial hearing.
[No such commission shall abolish, change the title or reduce the emoluments of any office, position or employment held by an exempt fireman for the purpose of terminating his said service.]
For the herein purposes no term of office, position or employment of any such person shall be deemed to be fixed by law or coterminous with that of a noncontinuous appointing or employing board or body.
(cf: N.J.S.40A:14-62)
2. N.J.S.40A:14-63 is amended to read as follows:
40A:14-63. a. No [department of the State government nor any board of chosen freeholders of a county, or governing body of a municipality, or a school board or board of education shall abolish, change the title or reduce the emoluments of any office or position held by an exempt fireman for the purpose of terminating his service] office, position or employment in which an exempt fireman has acquired tenure pursuant to the provisions of N.J.S.40A:14-60 through N.J.S.40A:14-62 shall be abolished, and the work, services or duties of such office, position or employment shall not be transferred to any other employee, department, office, or position so that it results in the termination of the services of an exempt fireman, or the reduction of the emoluments of the office, position or employment held by the exempt fireman.
b. Notwithstanding the provisions of subsection a. of this section, if the public employer demonstrates that for objective and demonstrable valid reasons of economy or efficiency required by Statewide economic depression and mandatory retrenchment, the need to terminate the services or reduce the workforce of personnel employed by the public employer, any office, position or employment in which an exempt fireman has acquired tenure may be abolished, and the work, services or duties of such office, position or employment may be transferred to another employee, department, office, or position only if such action shall occur in the same ratio and to the same extent as such actions affecting all other offices, positions, or employment, including emoluments thereof, under the control of the public employer.
(cf: N.J.S.40A:14-63)
3. N.J.S.40A:14-64 is amended to read as follows:
40A:14-64. Whenever an exempt fireman holds [a State, county, municipal or a board of education] an office, position or employment not created by the Constitution, with a county, municipality, board of education, commission elected or appointed by the governing bodies of two or more municipalities, or the State, he shall hold such office, position or employment during good behavior and shall not be removed unless for good cause after a fair and impartial hearing, provided he has or shall have served in said office, position or employment for a term of 3 consecutive years.
Any such hearing shall be upon a written complaint setting forth the charge or charges and filed with the authority in charge. A copy thereof shall be served upon the person so charged with notice of the time and place of the hearing thereon. The person so charged shall have the right to be represented by counsel and to subpoena witnesses and documentary evidence.
Nothing herein contained shall be construed to give tenure of office, position or employment to such exempt fireman in a paid or part-paid fire department and force.
(cf: N.J.S.40A:14-64)
4. N.J.S.40A:14-65 is amended to read as follows:
40A:14-65. a. No [department of the State government, nor any board of chosen freeholders of a county, governing body of a municipality or board of education shall abolish, change the title or reduce the emoluments of any office held by an exempt fireman having tenure therein, for economy reasons or otherwise, for the purpose of terminating his services, except in time of a widespread economic depression or mandatory retrenchment, but in any such case, the termination or reduction shall be made in the same ratio as in the case of other employees] office, position or employment in which an exempt fireman has acquired tenure pursuant to the provision of N.J.S.40A:14-64 shall be abolished for any reason and the work, services or duties of such office, position or employment shall not be transferred to any other employee, department, office or position so that it results in the actual or effective termination of the services of the exempt fireman or the reduction in the emoluments therefor.
b. Notwithstanding the provisions of subsection a. of this section, if the public employer demonstrates that for objective and demonstrable valid reasons of economy or efficiency required by Statewide economic depression and mandatory retrenchment, the need to terminate the services or reduce the workforce of personnel employed by the public employer, any office, position, or employment in which an exempt fireman has acquired tenure may be abolished, and the work, services or duties of such office, position, or employment may be transferred to another employee, department, office, or position only if such action shall occur in the same ratio and to the same extent as such actions affecting all other offices, positions, or employment, including emoluments thereof, under the control of the public employer.
(cf: N.J.S.40A:14-65)
5. This act shall take effect immediately.
STATEMENT
This bill clarifies the tenure protections statutorily afforded to exempt firemen who are employed by a public entity. Generally, a municipal firefighter who, at the time of appointment was of good moral character and not under 18 or over 45 years of age, becomes entitled to an exempt fireman certificate under N.J.S.40A:14-56 upon performing over a seven-year period, 60% of fire duty, in each of the seven years.
Under current law, whenever any person possessing an exempt fireman certificate holds an office, position or employment of the State, local government, or school district for an indeterminate term, the exempt fireman is effectively granted tenure in that office, position, or employment. The exempt fireman holds the office, position or employment during good behavior and only can be removed for good cause after a fair and impartial hearing. In the case of an exempt fireman holding a State, county, municipal or a board of education office having a set term, tenure in the position is granted after three years, and the exempt fireman cannot be removed unless for good cause after a fair and impartial hearing. In particular, N.J.S.40A:14-65 prohibits a public entity from abolishing, changing the title or reducing the emoluments of any office held by an exempt fireman having tenure therein, for economy reasons or otherwise, for the purpose of terminating his services, except in time of a widespread economic depression or mandatory retrenchment.
In 2002, despite the requirements of the law, the New Jersey Supreme Court determined in Viviani v. Borough of Bogota, 170 N.J.452 that a public entity could abolish for good faith economic reasons a position or office held by an exempt firefighter. In that case, the court upheld Bogota's elimination of a position held by an exempt fireman due to budgetary considerations, even though it continued to employ him in a lower-paid position. The provisions of this bill are intended to remedy the effects of this decision on the employment of exempt firefighters.
This bill clarifies that no office, position or employment either held by an exempt fireman, or in which an exempt fireman has acquired tenure, shall be abolished for any reason, and the work, services or duties of such office, position or employment shall not be transferred to any other employee, department, office, or position so that it results in the actual or effective termination of the services of the exempt fireman or the reduction in the emoluments provided to the exempt fireman. The sole exception to these protections shall be in time of objective and demonstrable Statewide economic depression and mandatory retrenchment, when the transfer of duties, termination of service or reductions in emoluments of any office, position or employment held by an exempt fireman may be made. The bill also requires that such a transfer, reduction, termination or reduction in emoluments may not fall solely on the exempt fireman, but only in the same ratio and to the same extent as in all other offices or positions under the control of the employing public entity.
