NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0751-13T4 NEWFIELD FIRE COMPANY NO. 1, APPROVED FOR PUBLICATION Plaintiff-Appellant, January 23, 2015 v. APPELLATE DIVISION THE BOROUGH OF NEWFIELD,
Defendant-Respondent. _______________________________
Submitted September 29, 2014 - Decided January 23, 2015
Before Judges Lihotz, St. John and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1077-13.
Buonadonna & Benson, P.C., attorneys for appellant (Alan G. Giebner, on the briefs).
Weir & Partners, LLP, attorneys for respondent (Daniel E. Rybeck and John C. Eastlack, Jr., on the brief).
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
We consider the scope of N.J.S.A. 40A:14-68, which allows a
municipality to exercise "supervision and control" over a
volunteer fire company, designated as its official firefighting
organization. Plaintiff Newfield Fire Company No. 1 (Fire
Company), a nonprofit, volunteer fire organization that has provided firefighting services to defendant the Borough of
Newfield (Borough) for decades, appeals from an August 29, 2013
judgment substantially upholding Ordinance #2013-7, adopted by
the Borough to regulate the Fire Company. Subject to three
exceptions declared unenforceable, Judge Georgia M. Curio
concluded the ordinance was a valid and enforceable exercise of
municipal authority, permitted by N.J.S.A. 40A:14-68. The Fire
Company argues the judge erroneously applied the statute and
maintains the ordinance represents an invalid imposition of
control over the affairs and internal governance of the Fire
Company. Following our consideration of the arguments presented
in light of the record and applicable law, we reject these
assertions and affirm.
In 1908, a volunteer firefighting organization, the
predecessor to the Fire Company, commenced and has continuously
provided firefighting services to the residents of the Borough.
The Fire Company is an independent New Jersey nonprofit
corporation, as verified by a certificate of incorporation and
governing bylaws filed on March 12, 2012.1 Article VI of the
Fire Company's bylaws outlines the duties of officers, including
1 The then Chief of the Fire Company averred the Fire Company was originally incorporated in 1908, and holds the original certificate of incorporation, which was not included in the record. The Borough provided a print out from the Treasury's webpage reflecting the recited record of incorporation.
2 A-0751-13T4 the Chief; Article VII outlines qualifications and duties of
membership; Article VIII authorizes the Fire Company to remove
members; and Article XIII provides for the annual election of
various officers, including the Chief, and the procedure to fill
vacancies.
Historically, the relationship between the Fire Company and
the Borough was harmonious, and the Fire Company and its
predecessor have provided firefighting services "[a]s a matter
of long[-]standing custom and practice," even before the Borough
was chartered in 1924. Relations between the Fire Company and
the Borough grew contentious in 2009 when the Fire Company's
membership elected a new Fire Chief.
There is no written agreement between the Fire Company and
the Borough. For years, the Fire Company has been housed in the
Borough's municipal building, along with other municipal
services. The enmeshed relationship of the Borough and the Fire
Company is aptly illustrated by the fact that a sign in front of
the Borough-owned municipal building was donated to and is owned
by the Fire Company, but electricity to operate the sign is
provided by the Borough. The Borough pays the Fire Company's
liability and worker's compensation insurance, building
maintenance and utilities, and purchased certain Fire Company
equipment such as its fire vehicles. The Fire Company itself
3 A-0751-13T4 generates resources independent from Borough funds through
fundraising and contributions, to pay other on-going expenses.
In December 2010, the Borough adopted Ordinance #2010-11,
entitled "Fire Department." This ordinance recognized the Fire
Company as the sole firefighting organization in the Borough and
provided the Borough "shall require the execution of all
necessary agreements with the [Fire Company] to provide fire-
fighting services," pursuant to N.J.S.A. 40A:14-68;
"[m]embership in the [Fire Company] shall be in accordance with
this chapter and the bylaws of the [Fire Company]"; and
appointment or election of the Fire Chief shall take place
pursuant to the Fire Company bylaws. In accordance with
Ordinance #2010-11, the Borough presented the Fire Company with
a contract for firefighting services, which the Fire Company
rejected.2
The following December, the Borough enacted Ordinance
#2011-15, amending Ordinance #2010-11, authorizing the Borough
to exercise broader control over the Fire Company's general
operations. Specifically, Ordinance #2011-15 required the
Borough to approve the Fire Company bylaws, any bylaw
amendments, its elected officers, and its line officers. The
amended ordinance also detailed the Fire Chief's duties and set
2 This contract is not included in the record.
4 A-0751-13T4 qualifications for and provided for appointment of individuals
seeking membership in the Fire Company. Finally, the ordinance
provided "[f]or cause, [Borough] Council may reprimand, suspend,
or remove from office the Fire Chief, or any officer or officers
of the [Fire Company]."
Ordinance #2011-15 was amended in July 2013, with the
enactment of Ordinance #2013-7. Ordinance #2013-7 is the
subject of this appeal. The significant addition in Ordinance
#2013-7 requires all Fire Company line officers, which include
the Chief, Deputy Chief, Assistant Chief, Captain, Lieutenants,
and Fire Police Captain, "shall be appointed by the Borough['s]
Governing Body[,] as provided by law."3
The Fire Company filed this complaint in lieu of
prerogative writs, seeking to invalidate Ordinance #2013-7 as
ultra vires. The Fire Company asserted the Borough abused its
discretionary authority in adopting Ordinance #2013-7, and the
adoption was "arbitrary, capricious and unreasonable," making
the ordinance "wrongful" and "unenforceable." The trial court
temporarily restrained the Borough from enforcing the provisions
of Ordinance #2013-7.
3 The record contains several references to the Borough's apparent desire to remove the Fire Company's Chief and suggests the Borough filed a disciplinary complaint against him.
5 A-0751-13T4 Following oral argument, Judge Curio considered the legal
issue presented. Reviewing the provisions of N.J.S.A. 40A:14-
68, she rejected the Fire Company's contention that an external
contract defining the relationship was mandated, thereby making
the Borough's mere adoption of Ordinance #2013-7 ineffective to
exercise the statutorily permitted supervision and control over
the Fire Company. Rather, she concluded Ordinance #2013-7
sufficiently established the contract between the Borough and
Fire Company and was "an appropriate exercise of authority by
the Borough . . . pursuant to N.J.S.A. 40A:14-68." Next, the
judge upheld Ordinance #2013-07 as enforceable, after excising
three specific provisions: the portion of § 25.2 allowing the
Borough to appoint the Fire Chief; the portion of § 25.3
requiring the Fire Company submit its bylaws, and presumably any
amendments, to the Borough Council for approval; and the portion
of § 25.5 providing the Borough retain ownership and control
over the sign erected in front of the municipal building. Judge
Curio noted the Borough can require approval of other Fire
Company officers and mandate the Fire Company transmit a copy of
its bylaws to the Borough Council.
On appeal, the Fire Company agrees N.J.S.A. 40A:14-68 is
the source of authority allowing the Borough's involvement in
its operation. However, the Fire Company challenges the trial
6 A-0751-13T4 judge's determination that Ordinance #2013-7 complies with the
scope of the permitted statutory authority.
"Municipal ordinances, like statutes, carry a presumption
of validity." Hutton Park Gardens v. Town Council of W. Orange,
68 N.J. 543, 564 (1975). "[A] law concerning municipal
corporations formed for local government . . . shall be
liberally construed in their favor." N.J. Const. art. IV, § 7,
¶ 11. Accordingly, a party challenging a municipal ordinance
has a heavy burden. The presumption of validity "'may be
overcome only by a clear showing that the local ordinance is
arbitrary or unreasonable.'" Quick Chek Food Stores v.
Springfield, 83 N.J. 438, 447 (1980) (quoting Hudson Circle
Servicenter, Inc. v. Kearny, 70 N.J. 289, 298-99 (1976)).
We start our review by examining the scope of N.J.S.A.
40A:14-68, understanding questions of statutory interpretation
are purely legal. In re Liquidation of Integrity Ins. Co., 193
N.J. 86, 94 (2007). In our de novo review of legal issues, we
need not defer to the trial court's conclusions. In re Petition
for Referendum on Trenton Ordinance 09-02, 201 N.J. 349, 358
(2010) (citing Manalapan Realty v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995)).
7 A-0751-13T4 "'Our task in statutory interpretation is to determine and
effectuate the Legislature's intent.'" Ibid. (quoting Bosland
v. Warnock Dodge Inc., 197 N.J. 543, 553 (2009)).
"In the construction of the laws and statutes of this state, both civil and criminal, words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language."
[State v. Hupka, 203 N.J. 222, 232 (2010) (quoting N.J.S.A. 1:1-1).]
"We consider the statute at the center of this case in
accordance with these principles." C.A. v. Bentolila, 219 N.J.
449, 460 (2014).
Many municipalities cannot support a full-time municipal
fire force and instead rely upon volunteers to provide this
essential public service. The volunteer fire companies are "not
direct units of local government." Paff v. N.J. State Firemen's
Ass'n, 431 N.J. Super. 278, 292 (App. Div. 2013) (citing
Schwartz v. Stockton, 32 N.J. 141, 151 (1960)). "While such
organizations are independent, incorporated as associations not
for pecuniary profit, . . . they may, and generally do, have
definite relationships with municipal governing bodies, . . .
thereby giving them a kind of semi-official status." Schwartz,
8 A-0751-13T4 supra, 32 N.J. at 151 (citation omitted). "'[T]he relationship
between a volunteer fireman and the municipality is not that of
master and servant in the true sense.'" Maggio v. Migliaccio,
266 N.J. Super. 111, 114-15 (App. Div.) (quoting Vogt v. Borough
of Belmar, 14 N.J. 195, 206 (1954)), certif. denied, 134 N.J.
563 (1993). Nevertheless, volunteer fire departments have been
recognized as quasi-public in nature. Sprint Spectrum, L.P. v.
Borough of Upper Saddle River Zoning Bd. of Adjustment, 352 N.J.
Super. 575, 598 (App. Div.), certif. denied, 174 N.J. 543
(2002).
The Legislature addressed the nature of municipal control
of volunteer fire companies in N.J.S.A. 40A:14-68(a), originally
effective on July 1, 1979:
In any municipality not having a paid or part-paid fire department and force, the governing body, by ordinance, may contract with a volunteer fire company or companies in such municipality, for purposes of extinguishing fires, upon such terms and conditions as shall be deemed proper. The members of any such company shall be under the supervision and control of said municipality and in performing fire duty shall be deemed to be exercising a governmental function; however, the appointment or election of the chief of the volunteer fire company shall remain the prerogative of the membership of the fire company as set forth in the company's certificate of incorporation or bylaws.
9 A-0751-13T4 The plain language of this statute reflects the
Legislature's intent to assure governmental supervision and
control of volunteer fire companies to the extent they are
charged with performing public functions funded by public
taxpayer resources. See McGovern v. Rutgers, 211 N.J. 94, 108
(2012) (holding "'we look first to the plain language of the
statute,'" giving the words their ordinary meaning and deriving
intent from the words the Legislature has chosen (quoting
Bosland, supra, 197 N.J. at 553)).
The Fire Company insists the Borough's use of an ordinance
ignored statute's requirement of providing a contract with the
Fire Company to define the scope of governmental supervision and
control. We reject this argument because the plain language of
the statute provides the municipality's "governing body, by
ordinance, may contract with a volunteer fire company . . . ."
N.J.S.A. 40A:14-68(a) (emphasis added). We conclude these words
unambiguously permit a municipality to use the mechanism of an
ordinance as the contractual basis to set forth provisions
assuring municipal supervision and control of members of the
volunteer fire company it designates as the official entity to
perform the public function of extinguishing fires.
Such a reading is consistent with prior interpretations of
both the statute and a municipality's relationship with its
10 A-0751-13T4 volunteer fire company. In Migliaccio, this court found the
adoption of an ordinance satisfied the statute, stating: "The
record reveals that the Borough of West Long Branch adopted the
necessary ordinance referred to in N.J.S.A. 40A:14-68 . . . ."
Migliaccio, supra, 266 N.J. Super. at 115. Also, in Paff, we
considered an ordinance defining the relationship when deciding
a different issue. There, we concluded "[m]embers of volunteer
fire companies serve 'under the supervision and control of [a]
municipality and in performing fire duty shall be deemed to be
exercising a governmental function[.]'" Paff, supra, 431 N.J.
Super. at 292 (alterations in original) (quoting N.J.S.A.
40A:14-68). See also Guida v. Emerson, 17 N.J. Misc. 209, 211-
12 (Dep't Labor 1939) (noting a municipality's recognition of a
volunteer fire company by express agreement is accomplished by
"the passage of an ordinance creating a department and stating
the manner of control").
We also find unpersuasive the Fire Company's argument
suggesting the Legislature reserved use of an ordinance to
define the regulation and control of paid fire departments,
pursuant to N.J.S.A. 40A:14-7, and chose to specify a contract
to control volunteer fire companies pursuant to N.J.S.A. 40A:14-
68. As Judge Curio aptly observed, use of a contract is
superfluous when discussing a municipality's authority to form a
11 A-0751-13T4 paid fire department, as discussed in N.J.S.A. 40A:14-7. On the
other hand, when addressing a municipality's relationship with a
volunteer fire force it seeks to perform public firefighting
functions, a municipal ordinance merely creates the conditions
under which that volunteer fire company may act as the
designated fire company of the municipality.
Turning to the attack on the scope of Ordinance #2013-7,
the Fire Company maintains the Borough lacks authority to
regulate the Fire Company, its members, or officers because the
Fire Company is a private nonprofit corporation, separate and
distinct from the Borough. The Fire Company relies on N.J.S.A.
15A:1-1 to 16-2, which are statutory provisions vesting rights
in nonprofit corporations, such as the right to be governed by
and make its own bylaws, N.J.S.A. 15A:2-9 to -11; the right to
acquire real and personal property, N.J.S.A. 15A:3-1(a)(4); and
the right to elect or appoint officers and define their duties,
N.J.S.A. 15A:3-1(a)(10). We disagree with this assertion.
A well-recognized rule of statutory construction applies
when one statute appears in conflict with another. Quite
simply, specific statutory provisions govern general ones.
State v. Robinson, 217 N.J. 594, 609 (2014); Tiffany Manor
Assocs. v. Newark City, 18 N.J. Tax 190, 197 (Tax 1999). The
broad, general nonprofit corporation statute yields to the
12 A-0751-13T4 specific legislative direction governing a municipality's
supervision and control of a designated volunteer fire company.
We further conclude the Fire Company is incorrect in
asserting its activities and management are independent of
municipal oversight and control. N.J.S.A. 40A:14-68(a)
pointedly directs volunteer fire companies, whose members accept
the role of performing the "governmental function" of "fire
duty," serve "under the supervision and control of [the]
municipality." Since volunteer firefighters perform a public
service, the need for municipal supervision and control of the
Fire Company is underscored, and the volunteer fire company is
legally viewed as a state actor. "'[V]irtually every statutory
reference concerning volunteer companies refers to fire
protection as a governmental function.'" Pallister v. Spotswood
First Aid Squad, 355 N.J. Super. 278, 281 n.2 (App. Div. 2002)
(alteration in original) (quoting D'Eustachio v. City of
Beverly, 177 N.J. Super. 566, 572 (Law Div. 1979)). See also
Eggert v. Tuckerton Vol. Fire Co. No. 1, 938 F. Supp. 1230, 1240
(D.N.J. 1996) (holding a volunteer fire company is a state actor
for purposes of 42 U.S.C.A. 1983); Schwartz, supra, 32 N.J. at
150 (holding volunteer fire companies are public entities for
purposes of tort liability); State v. Quezada, 402 N.J. Super.
13 A-0751-13T4 277, 283-84 (App. Div. 2008) (holding a volunteer firefighter is
a public servant under N.J.S.A. 2C:27-1(g)).
In return, designated volunteer firefighters are afforded
worker's compensation insurance as de facto municipal employees,
see N.J.S.A. 34:15-43; Migliaccio, supra, 266 N.J. Super. at
115, and provided municipal contributions from funds raised
through local tax assessments for equipment and a substantial
portion of related firefighting expenses. N.J.S.A. 40A:14-33;
N.J.S.A. 40A:14-34. A municipality may compensate volunteer
firefighters for losses sustained in performing fire duties,
N.J.S.A. 40A:14-36, and allocate space in municipal realty for
their use. See N.J.S.A. 40:48-2 (defining a municipality's
general powers to exercise authority for public welfare and
safety).
The municipal management of volunteer fire companies as
defined in N.J.S.A. 40A:14-68(a) is limited to "the authority to
control the general affairs of a volunteer fire department," and
a municipality "cannot dictate the day-to-day operations of the
department." Sprint, supra, 352 N.J. Super. at 598 (citing 63
C.J.S. Municipal Corporations § 542 (1999)). This distinction
is illuminated by the independent control retained by a fire
company in "the appointment or election" of its Chief, "as set
14 A-0751-13T4 forth in the company's certificate of incorporation or bylaws."
N.J.S.A. 40A:14-68(a).
Following our review, we find no flaw in Judge Curio's
analysis, concluding Ordinance #2013-7, as excised, stays within
the lines drawn by N.J.S.A. 40A:14-68(a). As the judge noted,
the Borough may not retain the right to approve the elected Fire
Chief or the Fire Company's bylaws, including any amendments.4
With these modifications, we conclude Ordinance #2013-7 does not
intrude into the day-to-day operations of the Fire Company,
defined by its bylaws. See N.J.S.A. 15A:3-1(a)(11) (a nonprofit
corporation's bylaws govern "the administration and regulation
of the affairs of the corporation"). For example, Ordinance
#2013-7 makes no attempt to invade the Fire Company's province
to assign personnel; define essential tasks; require attendance;
hold elections; abide by a membership code of conduct; develop
tactical decision-making for fire protection, prevention and
safety, particularly when fighting a fire; or regulate
fundraising efforts.
In our view, Judge Curio's decision does nothing more than
consider the validity of the ordinance, which we agree, once
excised, presents a valid enforceable contract to the Fire
4 The judge's excise of the provision suggesting the Borough retains ownership of the Fire Company's sign is not specifically contested.
15 A-0751-13T4 Company. If the Fire Company accepts the terms in order to
continue as the designated municipal fire force, it is entitled
to benefits provided by law, as we have outlined above. We
emphasize, the Fire Company correctly asserts a contract
requires a meeting of the minds and mutual assent. See, e.g.,
Morton v. 4 Orchard Land Trust, 180 N.J. 118, 129-30 (2004);
Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 442
(2014). Possibly the Fire Company's prior demonstrated
dissatisfaction with the ordinance provisions may lead to a
decision to end its long-standing role as the entity providing
firefighting services for the Borough. Prudence suggests any
terms formulated in an ordinance governing the Fire Company
would be mutually discussed, if not formulated by assent before
passage. Still, we are aware of nothing that precludes the
Borough from adopting an ordinance defining the conditions it
requires of any volunteer fire company seeking to act as the
Borough's designated fire company.
Here, the Fire Company must accept these terms if it seeks
to continue in its role as the designated municipal entity.
Nevertheless, nothing prevents the Fire Company members from
declining to voluntarily perform firefighting services under
terms mandated by a valid ordinance, such as Ordinance #2013-7.
If it chooses to do so, absent further negotiation and agreement
16 A-0751-13T4 with the Borough, its municipal firefighting status ceases, and
the Borough has authority to assume possession and control of
its real and personal property and to seek a replacement entity
to perform the necessary fire functions. Raritan Engine Co. No.
2 v. Edison Twp., 184 N.J. Super. 159, 164-66 (App. Div. 1982).
Affirmed.
17 A-0751-13T4