Miskowitz v. Union County Utilities Authority

764 A.2d 455, 336 N.J. Super. 183, 2001 N.J. Super. LEXIS 3
CourtNew Jersey Superior Court Appellate Division
DecidedJanuary 5, 2001
StatusPublished
Cited by2 cases

This text of 764 A.2d 455 (Miskowitz v. Union County Utilities Authority) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miskowitz v. Union County Utilities Authority, 764 A.2d 455, 336 N.J. Super. 183, 2001 N.J. Super. LEXIS 3 (N.J. Ct. App. 2001).

Opinion

The opinion of the court was delivered by

BAIME, P.J.A.D.

Plaintiffs Harry Pappas and Lois Miskowitz appeal from a summary judgment dismissing their complaints against the Union County Utilities Authority (UCUA), its individual members, and other public officers. At issue is whether the UCUA acted lawfully in terminating plaintiffs’ fixed term employment contracts as part of a restructuring to meet the fiscal crisis prompted by federal decisions declaring unconstitutional New Jersey’s solid waste flow orders. We hold that the UCUA’s decision was incidental to the exercise of its statutory powers, and that plaintiffs’ complaints were properly dismissed.

I.

The UCUA administers Union County’s solid waste management system. The system includes a resource recovery facility owned by the UCUA and operated by Ogden Martin Systems of Union, Inc., an ash residue disposal landfill owned by Empire Sanitary Landfill, Inc., and a countywide recycling program.

In 1988, the UCUA hired Miskowitz as a bookkeeper. She was promoted to assistant comptroller in 1994. As assistant comptroller, Miskowitz’s duties included billing hauler and municipal accounts, scheduling maintenance on UCUA’s vehicles, keeping employee attendance records and supervising assistants.

[186]*186In 1996, the UCUA appointed Pappas to the position of deputy executive director. His duties included assisting the executive director in day-to-day operations, serving as acting executive director in his absence, attending meetings, dealing with vendors and consultants, overseeing bid specifications and invoices, and acting as liaison with UCUA commissioners and representatives of local governments.

Both Miskowitz and Pappas were given five-year contracts. Miskowitz’s contract ran from March 9, 1994 to March 8, 1999. Pappas’ contract was to run from January 2, 1997 to January 1, 2002. As we will note more fully later in our opinion, these contracts were inartfully drafted. Read literally, the agreements purport to guarantee that the plaintiffs’ respective positions would not be abolished, and their duties would not be altered during the five-year fixed terms, at least in the absence of some act of misfeasance.

The operative contractual language in Miskowitz’s employment agreement reads as follows:

Termination — EMPLOYER shall not abolish or alter EMPLOYEE’S position or duties and EMPLOYEE shall not be discharged, disciplined, reprimanded, reduced in status, rank, or compensation, or deprived of any professional or employment advantage, or given any adverse evaluation of her(/his] performance without just cause.
The termination of the EMPLOYEE’S employment shall be deemed to have been for “Cause” if termination of her[/his] employment shall have been the result of:
(i) an act or acts of dishonesty on the part of the EMPLOYEE constituting a felony or resulting or intended to result directly or indirectly in gains or personal enrichment at the expense of the EMPLOYER;
(ii) the continued willful failure by the EMPLOYEE to perform substantially her duties with the EMPLOYER (other than any such failure resulting from her incapacity due to physical injury or physical or mental illness) for a period of thirty (30) days after a demand for substantial performance is delivered to the EMPLOYEE in the form of a resolution adopted by the Authority’s Commissioners which specifically identifies the manner in which the EMPLOYEE has not substantially performed her[/his] duties;
(iii) The EMPLOYEE’S drug or alcohol addiction.
Savings Clause — Should any valid federal or state law or final determination of any court or administrative agency affect any provision of this AGREEMENT, the provision or provisions so affected shall be automatically conformed to the law or [187]*187determination and otherwise the AGREEMENT shall continue in full force and effect.

The contractual language in Pappas’ contract is essentially the same, but there is one subtle difference. In Pappas’ contract, the opening paragraph pertaining to termination is set forth in two separate sentences, the first prohibiting the employer from “abolish[ing] or altering] the employee’s position or duties” and the second barring the employer from making adverse employment decisions without “just cause.” Pappas’ agreement states in pertinent part:

Termination — EMPLOYER shall not abolish or alter EMPLOYEE’S position or duties. EMPLOYEE shall not be discharged, disciplined, reprimanded, reduced in status, rank, or compensation, or deprived of any professional or employment advantage, or given any adverse evaluation of herl/hisl performance without just cause.

The five-year contracts were authorized by the Municipal and County Utilities Authority Law (N.J.S.A. 40:14B-1 to -78), which states that a municipal authority may appoint such personnel as it “may determine necessary for its efficient operations.” N.J.S.A . 40:14B-18. The statute further provides that an authority “shall determine [the] qualifications, ... duties and compensation” of its employees “as it deems necessary,” but that the terms of office and periods of such contracts may not exceed five years. Ibid. Employees hired by an authority are not subject to civil service laws or regulations. N.J.S.A. 40:14B-18.

In 1995, after Miskowitz’s contract term had begun but before Pappas was hired, the Third Circuit rendered its initial decision in Atlantic Coast Demolition v. Board of Chosen Freeholders, 48 F.3d 701 (3d Cir.1995), finding that New Jersey’s solid waste management system discriminated against interstate commerce. Id. at 717. The matter was remanded to the District Court for a determination as to whether New Jersey’s statutory and regulatory scheme served a legitimate local purpose, and, if so, whether there were nondiscriminatory alternatives that would enable the State to accomplish its legitimate objectives. Id. at 717-18. On July 15, 1996, the District Court concluded that nondiscriminatory alternatives existed to control solid waste flows, and that New [188]*188Jersey's system violated the Commerce Clause. Atlantic Coast Demolition v. Chosen Freeholders, 931 F.Supp. 341, 358 (D.N.J. 1996). The District Court permanently enjoined the enforcement of New Jersey’s statutory and regulatory scheme, but stayed'the judgment for two years following exhaustion of all appeals to afford the State the opportunity to devise a nondiscriminatory alternative to its solid waste flow system. Ibid. The State appealed. The Third Circuit affirmed the District Court’s judgment, but modified the stay. Atlantic Coast Demolition v. Board of Chosen Freeholders, 112 F.3d 652, 669 (3d Cir.1997). Under the Third Circuit’s judgment, the stay was not to extend beyond the exhaustion of the State’s petition for certiorari. Ibid. On November 10, 1997, the United States Supreme Court denied New Jersey’s petition for certiorari.

Immediately after the Supreme Court’s refusal to review the Third Circuit’s judgment, the UCUA applied to the Union County Local Finance Board for the issuance of solid waste revenue bonds designed to restructure its $296 million debt. We need not describe the UCUA’s application in detail.

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Bluebook (online)
764 A.2d 455, 336 N.J. Super. 183, 2001 N.J. Super. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miskowitz-v-union-county-utilities-authority-njsuperctappdiv-2001.