N.J.S.A. 40A:9-165
New Jersey
Statutes Annotated Currentness
Title 40A. Municipalities and Counties (Refs & Annos)
+ Chapter 9. Officers and Employees (Refs & Annos)
+ C. Municipalities (Refs & Annos)
>>40A:9-165. Salaries, wages or compensation; officers and employees;
establishment by governing body; protest; petition; ratification by voters
The governing body of a municipality, by ordinance, unless otherwise
provided by law, shall fix and determine the salaries, wages or
compensation to be paid to the officers and employees of the
municipality, including the members of the governing body and the
mayor or other chief executive, who by law are entitled to salaries,
wages, or compensation.
Salaries, wages or compensation fixed and determined by ordinance may,
from time to time, be increased, decreased or altered by ordinance. No
such ordinance shall reduce the salary of, or deny without good cause
an increase in salary given to all other municipal officers and
employees to, any tax assessor, chief financial officer, tax collector
or municipal clerk during the term for which he shall have been
appointed. Except with respect to an ordinance or a portion thereof
fixing salaries, wages or compensation of elective officials or any
managerial, executive or confidential employee as defined in section 3
of the "New Jersey Employer-Employee Relations Act" P.L.1941, c. 100
(C. 34:13A-3), as amended, the ordinance shall take effect as provided
therein. In municipalities wherein the provisions of Title 11 (Civil
Service) [FN1] of the Revised Statutes are in operation, this section
shall be subject thereto.
Where any such ordinance shall provide for increases in salaries,
wages or compensation of elective officials or any managerial,
executive or confidential employee, the ordinance or that portion
thereof which provides an increase for such elective or appointive
officials shall become operative in 20 days after the publication
thereof, after final passage, unless within said 20 days, a petition
signed by voters of such municipality, equal in number to at least 5%
of the registered voters of the municipality, protesting against the
passage of such ordinance, be presented to the governing body, in
which case such ordinance shall remain inoperative unless and until a
proposition for the ratification thereof shall be adopted at an
election by a majority of the voters voting on said proposition. The
question shall be submitted at the next general election, occurring
not less than 40 days from the date of the certification of the
petition. The submission of the question to the voters shall be
governed by the provisions of Title 19 (Elections) of the Revised
Statutes, as in the case of public questions to be voted upon in a
single municipality.
CREDIT(S)
L.1971, c. 200, § 1, eff. July 1, 1971. Amended by L.1975, c. 215, §
1; L.1976, c. 96, § 1, eff. Sept. 21, 1976; L.1979, c. 25, § 2, eff.
Feb. 13, 1979; L.1981, c. 393, § 28, eff. Jan. 6, 1982; L.1981, c.
394, § 5, eff. Jan. 6, 1982; L.1985, c. 374, § 10, eff. Nov. 26, 1985;
L.1991, c. 175, § 14, eff. Aug. 25, 1991.
[FN1] Repealed. See, now, Title 11A.
HISTORICAL AND STATUTORY NOTES
1993 Main Volume
Source: R.S. 40:46-23, amended by L.1947, c. 166, § 1; L.1948, c. 282,
§ 1; L.1958, c. 145, § 1; L.1962, c. 144, § 1; L.1965, c. 227;
40:46-26, amended by L.1942, c. 53, § 1; L.1944, c. 99, § 1; L.1947,
c. 33; L.1947, c. 166, § 2; L.1948, c. 282, § 2; L.1949, c. 271;
L.1952, c. 281; L.1955, c. 175; L.1962, c. 144, § 2. C. 40:46-27.1
(L.1951, c. 339, amended by L.1962, c. 151; L.1967, c. 299, § 1). R.S.
40:87-60, amended by L.1942, c. 53, p. 291, § 2; L.1944, c. 99, p.
254, § 2; L.1953, c. 195, p. 1498, § 1; L.1958, c. 18, p. 50, § 1;
L.1959, c. 83, p. 208, § 1; L.1962, c. 143, § 1; L.1970, c. 173, § 1.
Prior Laws: L.1917, c. 152, Art. XIII, §§ 1, 2, p. 350 [1924 Suppl. §
*136- 1302], amended by L.1919, c. 9, § 1, p. 26; L.1928, c. 134, §§
1, 2, p. 279. L.1919, c. 237, § 1, p. 575 [1924 Suppl. § *136-1309],
amended by L.1928, c. 134, § 3, p. 280, suppl. to L.1917, c. 152, p.
319.
1979 Legislation
The 1979 amendment deleted "or" preceding "tax collector",
and
inserted "or municipal clerk" following "tax collector" in
the first
paragraph.
1981 Legislation
L.1981, c. 393, § 28 and L.1981, c. 394, § 5 made the identical
amendments by the change of "may be" to precede "from time to
time"
rather than "increased, decreased or altered" in the second sentence;
making the third and fourth sentences from the second sentence by
deletion of the conjunctions "but" and "and" to precede the
new
sentences; insertion of "or deny without good cause on increase in
salary given to all other municipal officers and employees to" and
deletion of "appointed or elected" preceding "tax assessor"
in the
third sentence of the first paragraph.
1985 Legislation
L.1985, c. 374, § 10, in the first par., inserted "unless otherwise
provided by law" following "by ordinance".
1991 Legislation
L.1991, c. 175, § 14, in the second par., included reference to chief
financial officer.
Statements: Governor's statement to Senate, No. 1206--L.1985, c. 374,
see N.J.S.A. § 40:69A-32.
CROSS REFERENCES
Deductions from compensation, under federal or state statutes, see
N.J.S.A. § 52:14-15.1.
LIBRARY REFERENCES
1993 Main Volume
Municipal agents and employees; compensation in general, see Municipal
Corporations Key Number graphic220.
Municipal officers; compensation in general, see Municipal
Corporations Key Number graphic 162 et seq.
Municipal agents and employees; compensation in general, see C.J.S.
Municipal Corporations § 720 et seq.
Municipal officers in general; compensation in general, see C.J.S.
Municipal Corporations § 522 et seq.
RESEARCH REFERENCES
2008 Electronic Update
Treatises and Practice Aids
34 N.J. Prac. Series § 7.11, Appointed Officials--Salaries.
34 N.J. Prac. Series § 7.14, Appointed Officials--Removal Procedures.
34 N.J. Prac. Series § 7.28, Bibliography.
35 N.J. Prac. Series § 14.2, Local Budget Law.
35 N.J. Prac. Series § 16.2, Taxation--The Local Assessor.
35 N.J. Prac. Series § 16.3, The Tax Collector.
35 N.J. Prac. Series § 20.10, Municipal Salaries and Initiative and Referendum.
NOTES OF DECISIONS
Appointment 5
Burden of proof 19
Construction 1
Estoppel 17
Fixing compensation, ordinance 7
Good cause for salary differences, salaries 12.5
Increase, salaries 13
Law governing 3
Ordinance
Ordinance - In general 6
Ordinance - Fixing compensation 7
Ordinance - Validity of 8
Preemption 4
Purpose 2
Reduction, salaries 14
Referendum 9
Reimbursement for expenses 10
Resolution 11
Review 18
Salaries
Salaries - In general 12
Salaries - Good cause for salary differences 12.5
Salaries - Increase 13
Salaries - Reduction 14
Tax assessors 15
Validity of, ordinance 8
Waiver 16
1. Construction
Section 40A:9-165 et seq. with respect to salary ordinances governing
wages of a mayor or chief executive prevail over the general
referendum provisions. Lettieri v. Governing Body of City of Bayonne,
168 N.J.Super. 423, 403 A.2d 64 (L.1979). Statutes Key Number graphic
223.4
2. Purpose
The purpose of the salary ordinance provision is to empower the
governing body to fix salaries. McCurrie v. Town of Kearny, 344
N.J.Super. 470, 782 A.2d 919 (A.D.2001), certification denied 171 N.J.
339, 793 A.2d 717, certification granted 171 N.J. 339, 793 A.2d 717,
reversed 174 N.J. 523, 809 A.2d 789. Municipal Corporations Key Number
graphic 162.6
Primary purpose of statutes delegating powers to create municipal
offices and positions and prescribe compensation and duties is to
afford public notice of proposed exercise of such power and thus
secure proper and efficient conduct of municipal affairs. Espinos v.
Monroe Tp., 81 N.J.Super. 283, 195 A.2d 478 (A.D.1963). Municipal
Corporations Key Number graphic 126
3. Law governing
Provisions of Faulkner Act relating to referendum did not control
potential referendum relating to salary ordinance of town organized
under Faulkner Act, but, rather, this section [§ 40A:9-165] relating
specifically to salary ordinances, including right to redress by
referendum, was applicable, and thus there was no requirement that
petition be verified or certified. Stop the Pay Hikes Committee v.
Town Council of Town of Irvington, 166 N.J.Super. 197, 399 A.2d 336
(L.1979), affirmed 170 N.J.Super. 393, 406 A.2d 725. Municipal
Corporations Key Number graphic 108.10
Being a specific statute, this section empowering voters to demand a
referendum on question whether an ordinance raising municipal salaries
shall become effective by filing of petition signed by five percent of
registered voters prevails, as regards salary referendums, over §
40:69A-185 of optional municipal charter provision of Optional
Municipal Charter Law providing that voters shall have power to demand
a referendum as to whether certain ordinances shall become effective
by filing petition signed by over 25% of the registered voters.
Lawrence v. Butcher, 130 N.J.Super. 209, 326 A.2d 71 (A.D.1974).
Statutes Key Number graphic 223.4
4. Preemption
This section providing referendum procedure to test salary ordinances
where increase in salary for elective official or managerial executive
or confidential employee is in issue is in such instances the
exclusive vehicle therefor, and preempts the Faulkner Act's general
referendum provisions. Myers v. Worrick, 182 N.J.Super. 117, 440 A.2d
72 (L.1981). Statutes Key Number graphic 343
5. Appointment
Where, at time plumbing inspector was employed by town board of
health, ordinance fixing his compensation did not exist, inspector
would be charged with such knowledge at time he accepted the
appointment and with knowledge that ordinance adopted by town was
ineffective as to him, and therefore inspector would not be heard to
complain of lack of such salary ordinance. Sagarese v. Board of Health
of Town of Morristown, 31 N.J.Super. 526, 107 A.2d 351 (L.1954).
Health Key Number graphic 365
Individual who was appointed clerk of municipal court, and
subsequently chief clerk of all parts, pursuant to an ordinance
adopted under former § 2A:1-1 et seq., authorizing municipality to
provide for a clerk of municipal court and to provide for
compensation, and whose designation was revoked and who was returned
to his position as legal assistant, and whose salary as a legal
assistant was not fixed by ordinance, was not entitled to restoration
either to position of court clerk or legal assistant after his
dismissal pursuant to new city ordinance creating law department.
Jersey City v. Department of Civil Service, 10 N.J.Super. 140, 76 A.2d
830 (A.D.1950), certification granted 6 N.J. 497, 79 A.2d 342,
affirmed 7 N.J. 509, 81 A.2d 777. Clerks Of Courts Key Number graphic
8; Municipal Corporations Key Number graphic 218(11)
6. Ordinance--In general
Neither § 40A:9-167 governing referendum on ordinances fixing salaries
and providing that a referendum vote shall be binding for two years
following such vote nor § 40A:9-168 governing petitions for referendum
on salaries and providing that result of such vote shall be binding in
municipality for two years apply to § 40A:9-165 governing setting of
salaries of a mayor or other chief executive officer and providing
that salary ordinance may be challenged by way of referendum; hence,
although August 1978 ordinance increasing mayor's salary was rejected
by voters at November general election, such vote did not preclude
adoption of another salary increase ordinance the following March.
Lettieri v. Governing Body of City of Bayonne, 168 N.J.Super. 423, 403
A.2d 64 (L.1979). Municipal Corporations Key Number graphic 108.10
Neither salary ordinance nor appropriation of funds to pay an officer
create by implication an office or validate appointment to office not
created by ordinance. Planning Bd. of West Milford Tp. v. Township
Council of West Milford Tp., 123 N.J.Super. 135, 301 A.2d 781
(L.1973). Municipal Corporations Key Number graphic 126; Municipal
Corporations Key Number graphic 131
Under provision of § 40:46-23 (repealed; see, now, this section)
authorizing governing body by ordinance to fix and determine salaries
to be paid to each employee of municipality, increase in salary
required ordinance and resolution would not suffice. Riddlestorffer v.
City of Rahway, 82 N.J.Super. 423, 197 A.2d 883 (L.1964). Municipal
Corporations Key Number graphic 220(3)
Requirement that municipality in creating municipal offices and
prescribing compensation and duties act through medium of ordinance
was not inapplicable on ground that compensation was to be derived
from building permit receipts rather than from general tax revenues,
where, in either case, payment would be from public funds. Espinos v.
Monroe Tp., 81 N.J.Super. 283, 195 A.2d 478 (A.D.1963). Municipal
Corporations Key Number graphic 162
Where town board of health had employed plaintiff as plumbing
inspector without having fixed his compensation by ordinance, the
court could not direct figure at which plaintiff's salary should be
fixed in any retroactive ordinance, but board could, in exercise of
its discretion, establish salary for past years at amount which
inspector had actually received or even at lesser sum. Sagarese v.
Board of Health of Town of Morristown, 31 N.J.Super. 526, 107 A.2d 351
(L.1954). Health Key Number graphic 365; Mandamus Key Number graphic
176
A salary ordinance must meet its statutory obligation of fixing
salaries. McKann v. Town of Irvington, 133 N.J.L. 575, 45 A.2d 494
(1946). Municipal Corporations Key Number graphic 220(2)
Acts of the legislature and ordinances of city councils, or boards
fixing the terms and salaries of municipal officers, are not in the
nature of contracts with such officers. Love v. Jersey City, 40 N.J.L.
456 (1878). Municipal Corporations Key Number graphic 162
7. ---- Fixing compensation, ordinance
Lump sum payment made to municipal clerk and administrator at time he
resigned was not an adjustment of compensation or compensation for
personal service, but rather pursuant to an agreement to sever clerk's
employment relationship in consideration for his promise to resign,
comparable to the buy-out of an employment contract, rather than the
fixing of salary or wages, and thus, passage of an ordinance to
approve the agreement was not required, but the resolution approving
it was sufficient; administrator had right to continue in the job, but
gave up that right under the terms of the agreement, and agreed to
resign in consideration of a sum substantially less than he would have
earned had he stayed. McCurrie v. Town of Kearny, 344 N.J.Super. 470,
782 A.2d 919 (A.D.2001), certification denied 171 N.J. 339, 793 A.2d
717, certification granted 171 N.J. 339, 793 A.2d 717, reversed 174
N.J. 523, 809 A.2d 789. Municipal Corporations Key Number graphic
162.4
Ordinance fixing borough employee salaries superseded borough policy
and procedure manual section, providing that all borough department
heads receive all benefits no less that specified employees with
exception of overtime; statutes require that salaries, wages and
compensation be established by ordinance, borough did not adopt manual
by ordinance such that manual could not bind borough regarding future
compensation, and even if manual had some contractual force regarding
compensation, it could not preempt borough's statutory power to
establish by ordinance a different compensation scheme. Cooper v.
Mayor, 299 N.J.Super. 174, 690 A.2d 1036 (A.D.1997). Municipal
Corporations Key Number graphic 162
Township ordinance providing salary range between $16,500 and $27,500
for office of municipal court judge was valid; range was sufficiently
restrictive so as not to violate requirement that salaries be set by
ordinance. Shalita v. Township of Washington, 270 N.J.Super. 84, 636
A.2d 568 (A.D.1994). Judges Key Number graphic 22(4)
Compensation of municipal attorney should have been fixed by
ordinance, and not by resolution. Myers v. Worrick, 182 N.J.Super.
117, 440 A.2d 72 (L.1981). Municipal Corporations Key Number graphic
162.1
Section 40:145-12 authorizing township committee to appoint and employ
township attorney, engineer, building inspector, physician and
treasurer did not relieve township of obligation to establish by
ordinance the basis of payment of compensation of building inspector.
Espinos v. Monroe Tp., 81 N.J.Super. 283, 195 A.2d 478 (A.D.1963).
Towns Key Number graphic 29
Ordinance fixing salaries of municipal officers should inform the
public of at least the approximate salary attached to each office and
the maximum number of officers who will be in receipt thereof. Nolan
v. Witkowski, 56 N.J.Super. 480, 153 A.2d 745 (A.D.1959),
certification granted 31 N.J. 73, 155 A.2d 172, affirmed 32 N.J. 426,
161 A.2d 102. Municipal Corporations Key Number graphic 111(1)
A municipal office or position, if not created by statute, can come
into being only by ordinance of governing body of a municipality, and
salary ranges must be fixed in first instance by ordinance. Giannone
v. Carlin, 20 N.J. 511, 120 A.2d 449 (1956). Municipal Corporations
Key Number graphic 126; Municipal Corporations Key Number graphic 162
Where, after an ordinance is passed fixing a salary for the next
ensuing term, an officer is elected, the ordinance will fix the salary
for that term, although it did not, because of the necessity of
publishing it, take effect until after the term began. Stuhr v. City
of Hoboken, 47 N.J.L. 147 (1885). Municipal Corporations Key Number
graphic 162; Officers And Public Employees Key Number graphic 94
8. ---- Validity of
Where sufficient funds had already been appropriated for purpose of
municipal salary increases, salary increase ordinance was not an
appropriation bill which, under municipal ordinance, required six
affirmative votes; thus, passage of ordinance by five to four vote was
valid. Donato v. Gibson, 178 N.J.Super. 163, 428 A.2d 536 (A.D.1981).
Municipal Corporations Key Number graphic 97
Fact that enactment of ordinance increasing mayor's salary may have
been precipitated by initiative petition filed pursuant to a statute
irrelevant to salary ordinances was irrelevant to validity of the
ordinance. Lettieri v. Governing Body of City of Bayonne, 168
N.J.Super. 423, 403 A.2d 64 (L.1979). Municipal Corporations Key
Number graphic 108.2
An ordinance which provides for a salary range of from $3,500 to
$10,000, with no standards to control the discretion of those who are
to fix the salaries, did not comply with § 40:46-23 (now, this
section). Nolan v. Witkowski, 56 N.J.Super. 480, 153 A.2d 745
(A.D.1959), certification granted 31 N.J. 73, 155 A.2d 172, affirmed
32 N.J. 426, 161 A.2d 102. Municipal Corporations Key Number graphic
111(2)
An ordinance of town of Irvington fixing salaries of municipal
employees was valid, notwithstanding that ordinance left a range
within which a salary might be moved without the formality of a
further ordinance, where the range was not so great as to emasculate
the ordinance of its salary-fixing force. McKann v. Town of Irvington,
133 N.J.L. 575, 45 A.2d 494 (1946). Municipal Corporations Key Number
graphic 62
9. Referendum
In order to show "good cause" for disparity between salary or wage
increases given other employees and those given protected officers,
municipality must validate economic basis for disparity and justify it
in face of legislative intent to give economic protection to protected
officers. Association of Mun. Assessors of New Jersey v. Township of
Barnegat, 262 N.J.Super. 55, 619 A.2d 1042 (L.1992). Municipal
Corporations Key Number graphic 220(2)
This salary ordinance section, with respect to referendum provisions
permitting challenges to salary ordinances already passed, is complete
and stands apart from §§ 40A:9-167 and 40A:9-169 governing procedure
of initiative and referendum to test proposed salary ordinances, so
that omission from this section of provision that a referendum vote
shall bind governing body and citizenry must be assumed to be
deliberate since such provision was specifically included in §§
40A:9-167 and 40A:9-169 dealing with referendums to test proposed
salary ordinances; thus, municipal council was not prohibited from
passing salary increase ordinance even though referendum held nine
months before had turned down previous salary increase ordinance,
since referendum was held pursuant to this section dealing with
referendums challenging salary ordinances already passed. Donato v.
Gibson, 178 N.J.Super. 163, 428 A.2d 536 (A.D.1981). Municipal
Corporations Key Number graphic 108.10
Where petition seeking referendum with regard to ordinance raising
salaries of officer and employees of township, which was organized
under Optional Municipal Charter Law, was signed by more than five
percent of the registered voters, township clerk was required to file
petition and arrange for placing referendum on the ballot of the next
general election. Lawrence v. Butcher, 130 N.J.Super. 209, 326 A.2d 71
(A.D.1974). Municipal Corporations Key Number graphic 108.10
10. Reimbursement for expenses
Public official is entitled to compensation for expenses incurred in
performance of his official duties. Cobb v. City of Cape May, 113
N.J.Super. 598, 274 A.2d 622 (L.1971). Officers And Public Employees
Key Number graphic 99
A mayor of a city is entitled to be reimbursed by the city for
expenses incurred in defending an action brought by the city against
him in his official capacity. Barnert v. City of Paterson, 48 N.J.L.
395, 6 A. 15 (1886). Municipal Corporations Key Number graphic 163
11. Resolution
Since, under § 40:48-1 relating to municipal manager form of
government, office of borough attorney and salary or compensation to
be paid to holder thereof require enactment by ordinance, in absence
of such ordinance, the office did not exist, and one appointed borough
attorney only by resolution which was subsequently repealed could
acquire no rights, which he might assert under Tenure Act, to be
borough attorney. Wagner v. Borough of Lodi, 56 N.J.Super. 204, 152
A.2d 389 (A.D.1959), certification denied 30 N.J. 599, 154 A.2d 672.
Municipal Corporations Key Number graphic 133
Compensation to be paid plumbing inspector can be fixed only by
ordinance of a municipal board of health, and an appointee for such
position by board of health for such position cannot recover salary
fixed by resolution. Sagarese v. Board of Health of Town of
Morristown, 31 N.J.Super. 526, 107 A.2d 351 (L.1954). Health Key
Number graphic 365
The Paterson Board of Health resolution establishing new salary range
for health officer and sanitary inspectors was, as matter of law,
invalid attempt to exercise by resolution powers which could be
exercised only by ordinance, and employees affected could not recover
increased salaries therein provided. Howard v. Mayor & Bd. of Finance
of City of Paterson, 6 N.J. 373, 78 A.2d 893 (1951). Health Key Number
graphic 365
Where city certified plaintiffs to civil service department as holding
title of legal assistants, and budget ordinances of city appropriated
funds from which plaintiffs' salaries were paid, but plaintiffs were
appointed by corporation counsel and their appointments and salaries
were approved by resolution, and not by ordinance of board of
commissioners, plaintiffs were not validly appointed and were not
entitled to be restored to their positions after their dismissal
pursuant to new city ordinance creating a law department. Jersey City
v. Department of Civil Service, 10 N.J.Super. 140, 76 A.2d 830
(A.D.1950), certification granted 6 N.J. 497, 79 A.2d 342, affirmed 7
N.J. 509, 81 A.2d 777. Municipal Corporations Key Number graphic
217.1; Municipal Corporations Key Number graphic 218(11)
The city of Elizabeth was not authorized to create the position of
assistant city clerk by resolution, since under statute the power to
create municipal offices and positions and to prescribe the
compensation and duties appertaining thereto may be exercised only by
ordinance. Davaillon v. City of Elizabeth, 121 N.J.L. 380, 2 A.2d 369
(1938). Municipal Corporations Key Number graphic 126
Action of mayor and city's board of commissioners in reducing city
clerk's salary by resolution instead of by ordinance was unauthorized.
Heil v. Mayor and Board of Com'rs of City of Wildwood, 11 N.J. Misc.
171, 164 A. 868 (1933). Municipal Corporations Key Number graphic 164;
Officers And Public Employees Key Number graphic 100(2)
P.L.1923, p. 306, a validating act, did not legalize offices to be
created by resolution, but merely referred to fixing of salaries in
that manner. Benson v. Weiler, 6 N.J. Misc. 465, 141 A. 665 (1928).
12. Salaries--In general
Relationship of public employee or office-holder and his employer is
not ipso facto contractual, and there is no relation between city and
its officers as will oblige it to compensate them for official
services in absence of provision therefor according to law. Espinos v.
Monroe Tp., 81 N.J.Super. 283, 195 A.2d 478 (A.D.1963). Municipal
Corporations Key Number graphic 162
There is not any relation between municipal corporations and officers
which are required by law to be elected or appointed which will oblige
municipal corporations to make compensation to them for their official
services unless provision is made therefor by law, ordinance, or
contract. Sagarese v. Board of Health of Town of Morristown, 31
N.J.Super. 526, 107 A.2d 351 (L.1954). Municipal Corporations Key
Number graphic 162
Right of public officer to recover salary is dependent upon
performance of duties of office except as is otherwise provided by §
40:46-34 [repealed; see, now, §§ 40A:9-172, 40A:14-23]. Hillel v.
Borough of Edgewater, 106 N.J.L. 481, 150 A. 385 (1930). Officers And
Public Employees Key Number graphic 94
Members of police department performing no duties of offices to which
they were promoted could not recover salary therefor. Fitzpatrick v.
City of Passaic, 105 N.J.L. 103, 143 A. 728 (1928), affirmed 105
N.J.L. 632, 147 A. 908. Municipal Corporations Key Number graphic 199
A day laborer, employed by the superintendent of buildings of Newark
to assist in administration of the police power under ordinances of
the city, may sue it for compensation, whether or not the
superintendent followed the procedure laid down in other sections to
protect property owners and determine their rights as between them and
the city. De Camp v. City of Newark, 78 N.J.L. 31, 73 A. 247 (1909).
Municipal Corporations Key Number graphic 220(8)
Money paid for a municipal corporation to one of its officers in
excess of his lawful fees may be recovered by the corporation in an
action against the officer for money had and received to its use,
although the payments were made on the order of its governing body,
with full knowledge of the facts and without fraud. City of Camden v.
Varney, 63 N.J.L. 325, 43 A. 889 (1899). Municipal Corporations Key
Number graphic 162.7
12.5. ---- Good cause for salary differences, salaries
Protected officer who claims that there was violation of statute
governing salaries of municipal employees must make threshold showing
that generally other officers and employees were given increases that
exceeded his, and if such a showing is made, municipality must then
present evidence demonstrating "good cause" for differences in
salaries. Association of Mun. Assessors of New Jersey v. Township of
Barnegat, 262 N.J.Super. 55, 619 A.2d 1042 (L.1992). Municipal
Corporations Key Number graphic 165
13. ---- Increase
Increase in salary referred to in this section providing referendum
procedure to test salary ordinances where increase in salary for
elective official or managerial executive for confidential employee is
in issue refers to salary increment to holder of existing office
during existence of that office under existing form of government, and
not as comparative of salaries between offices under varying forms of
government. Myers v. Worrick, 182 N.J.Super. 117, 440 A.2d 72
(L.1981). Municipal Corporations Key Number graphic 108.10
Payment by municipality of premiums on group policy for benefit of
city employees amounted to increase in salaries of employees and
should have been authorized by ordinance. Riddlestorffer v. City of
Rahway, 82 N.J.Super. 423, 197 A.2d 883 (L.1964). Municipal
Corporations Key Number graphic 220(3)
Where ordinance was enacted, increasing annual salary of person
holding office of collector of taxes and treasurer, during his second
term, retroactive to first day of second term, later salary increase
during second term constituted void second salary increase during
second term under § 40:46-23 (see, now, this section), despite
retroactivity of first increase to first day of second term. Meyers v.
Mayor and Council of Borough of East Paterson, 21 N.J. 357, 122 A.2d
337 (1956). Municipal Corporations Key Number graphic 164
A municipality cannot escape statutory restrictions on the raising of
officers' salaries during term by making an increase retroactive to
first day of term. Meyers v. Mayor and Council of the Borough of East
Paterson, 37 N.J.Super. 122, 117 A.2d 27 (A.D.1955), certification
granted 20 N.J. 139, 118 A.2d 730, affirmed 21 N.J. 357, 122 A.2d 337.
Municipal Corporations Key Number graphic 164
The policy of the law has been to enforce statutory restrictions on
the raising of officers' salaries during their terms. Meyers v. Mayor
and Council of the Borough of East Paterson, 37 N.J.Super. 122, 117
A.2d 27 (A.D.1955), certification granted 20 N.J. 139, 118 A.2d 730,
affirmed 21 N.J. 357, 122 A.2d 337. Officers And Public Employees Key
Number graphic 100(1)
14. ---- Reduction
Imposition of additional duties on city tax collector of water
surcharge billing program, without concurrent increase in collector's
salary, did not effectively amount to reduction of salary in violation
of this section. Lamb v. City of Ventnor, 161 N.J.Super. 140, 390 A.2d
1230 (Co.1978). Municipal Corporations Key Number graphic 164
Resolution of board of commissioners merely requesting policemen and
firemen to contribute 10 per cent. of their salaries to city for one
year was not equivalent to resolution reducing salaries as regards
basis of compensation for fireman's death. Flamm v. City of Passaic,
14 N.J. Misc. 362, 184 A. 748 (1936). Workers' Compensation Key Number
graphic 911
City commissioners' order requesting members of the police department
to consent to voluntary pay reduction was not legally binding
reduction so as to preclude subsequent reduction during same fiscal
year. Phillips v. City of Wildwood, 11 N.J. Misc. 177, 165 A. 117
(1933). Municipal Corporations Key Number graphic 186(5)
Salaries of municipal employees may be reduced by ordinance without
repeal of original ordinance fixing salaries. Adams v. Mayor and
Common Council of City of Plainfield, 109 N.J.L. 282, 161 A. 647
(1932), affirmed 110 N.J.L. 377, 166 A. 164. Municipal Corporations
Key Number graphic 220(3)
Laws 1929, c. 162, p. 291, providing additional method for fixing
municipal employees' compensation but disavowing purpose thereby to
authorize reduction did not nullify pre-existing power of
municipalities, under § 40:46-23 (repealed, see, now, this section) to
reduce salaries. Adams v. Mayor and Common Council of City of
Plainfield, 109 N.J.L. 282, 161 A. 647 (1932), affirmed 110 N.J.L.
377, 166 A. 164. Municipal Corporations Key Number graphic 220(3)
15. Tax assessors
Borough did not have "good cause" for denying part-time tax assessor
a
raise in salary ordinance for the same year in which full-time
employees received raises; budgetary cap laws and limited resources of
taxpayers did not justify giving raises to most officers and employees
at the expense of a protected officer, and treatment of part-time
employees as performing "quasi-volunteer" service offended statutory
purpose of assuring protected officers and employees fair salaries to
enhance professionalism in their offices. Association of Mun.
Assessors of New Jersey v. Borough of Merchantville, 264 N.J.Super.
401, 624 A.2d 1027 (A.D.1993). Taxation Key Number graphic 2438
This section protecting municipal tax assessor, municipal tax
collector and municipal clerk from being denied "without good cause"
increase in salary given to other municipal officers and employees was
intended to protect officers from economic discrimination regardless
of whether it is politically motivated; however, evidence of political
reprisal may make it easier to establish economic discrimination. Haus
v. Mayor and Council of Borough of South Plainfield, 237 N.J.Super.
558, 568 A.2d 569 (A.D.1990). Municipal Corporations Key Number
graphic 164; Taxation Key Number graphic 2438; Taxation Key Number
graphic 2806
This section does not permit only token increase in salary for
assessor when compared to increases given to other municipal
employees; rather, this section requires that assessor receive
increase commensurate with increases given other employees unless
there is good cause shown by municipality why assessor should not
receive such increase. Association of Mun. Assessors of New Jersey v.
Mullica Tp., 225 N.J.Super. 475, 542 A.2d 970 (L.1988). Taxation Key
Number graphic 2438
If township committee does not at the beginning of term of newly
elected tax collector fix different salary, that prevailing in
preceding term must be paid. Potter v. Union Tp., 91 N.J.L. 705, 103
A. 78 (1918). Taxation Key Number graphic 2806
16. Waiver
Tax collector's exercise of gratuitous and limited forbearance from
collecting her full salary for time she held second job did not bar
her right to her full salary after she left her outside employment and
returned to work full time as tax collector by operation of waiver or
estoppel. Van Allen v. Board of Com'rs of Bass River Tp., 211
N.J.Super. 407, 511 A.2d 1243 (A.D.1986). Municipal Corporations Key
Number graphic 978(1)
A city officer, by continuing in office and receiving warrants for
monthly payments of his salary during the term, waives all objections
to the reduction of his salary by the legislature. Love v. Jersey
City, 40 N.J.L. 456 (1878). Municipal Corporations Key Number graphic
162.7
17. Estoppel
Where municipal corporation's agreement to pay salary to building
inspector was void and not merely irregular, doctrine of estoppel had
no application. Espinos v. Monroe Tp., 81 N.J.Super. 283, 195 A.2d 478
(A.D.1963). Estoppel Key Number graphic 62.6
Where deputy city clerk served from May 29, 1935, to May 29, 1936,
salary of office was $3,000, ordinance was adopted March 28, 1935,
reducing salaries of municipal employees by 15 per cent., effective
for 1935, but deputy was paid on basis of supposed salary of $2,500
with 15 per cent. deduction for 1935, and protested against failure to
receive full salary at $3,000, as it accrued, he did not waive right
to balance due of $612.54, and was not estopped to claim such balance.
Borz v. City of Camden, 119 N.J.L. 17, 194 A. 66 (1937). Municipal
Corporations Key Number graphic 164; Officers And Public Employees Key
Number graphic 100(2)
18. Review
Where ordinance effected an allegedly illegal increase in officer's
salary, validity of each installment of salary could be reviewed
within 30 days after it was paid, and future installments halted, even
though period under former R.R. 4:88-15 within which ordinance might
be challenged, had expired. Meyers v. Mayor and Council of the Borough
of East Paterson, 37 N.J.Super. 122, 117 A.2d 27 (A.D.1955),
certification granted 20 N.J. 139, 118 A.2d 730, affirmed 21 N.J. 357,
122 A.2d 337. Municipal Corporations Key Number graphic 164
Where validity of borough ordinance, fixing mayor's annual salary at
$500, could possibly turn on fact question as to borough's population
when ordinance was adopted, Supreme Court could not say that question,
raised on certiorari, as to invalidity of ordinance because it was not
adopted through referendum, was "moot". Morgan v. Mayor and Council
of
Borough of Roselle Park, 129 N.J.L. 231, 28 A.2d 625 (1942).
Certiorari Key Number graphic 31
Certiorari was appropriate method of testing legality of municipal
action providing for payment of official salary. Marx v. Borough of
Ft. Lee, 4 N.J. Misc. 274, 132 A. 320 (1926). Municipal Corporations
Key Number graphic 162.6; Officers And Public Employees Key Number
graphic 101
In a proceeding to review an amendment to an ordinance of the town of
West Hoboken, passed on August 23d, 1922, by which the pay of the
police department was increased, it was a question whether, as the
increased salaries were being paid, the various officers should have
been made parties. The question for determination comes up under
P.L.1919, p. 26, incorporated in § 40:46-23 (now, this section). Since
the records showed that there were no salaries that were fixed by any
referendum under that act, the ordinance was valid, and therefore,
such officers were not necessary parties. Corcoran v. Town of West
Hoboken, 1923, 1 N.J. Misc. 24. Municipal Corporations Key Number
graphic 121
19. Burden of proof
Employee claiming violation of statute governing salaries, wages and
compensation of municipal employees bears burden of persuasion that
there is no good reason for disparity between salaries paid different
employees; there is presumption of validity of municipal ordinances.
Association of Mun. Assessors of New Jersey v. Township of Barnegat,
262 N.J.Super. 55, 619 A.2d 1042 (L.1992). Municipal Corporations Key
Number graphic 122.1(2); Municipal Corporations Key Number graphic
200(8.1)
