Opinion
DOCKET NO. A-0578-14T4
01-14-2016
NANCY GERRITY, Plaintiff-Appellant, v. COUNTY OF SALEM and COUNTY OF GLOUCESTER, Defendants-Respondents.
William F. Ziegler argued the cause for appellant (Holston, MacDonald, Uzdavinis, Ziegler, Lodge & Myles, attorneys; Mr. Ziegler, on the brief). Allan E. Richardson argued the cause for respondent County of Salem (Richardson, Galella & Austermuhl, attorneys; Mr. Richardson on the brief). Benjamin S. Teris argued the cause for respondent County of Gloucester (Brown & Connery, LLP, attorneys; Christine P. O'Hearn, of counsel and on the brief; Mr. Teris, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Salem County, Docket No. L-68-14. William F. Ziegler argued the cause for appellant (Holston, MacDonald, Uzdavinis, Ziegler, Lodge & Myles, attorneys; Mr. Ziegler, on the brief). Allan E. Richardson argued the cause for respondent County of Salem (Richardson, Galella & Austermuhl, attorneys; Mr. Richardson on the brief). Benjamin S. Teris argued the cause for respondent County of Gloucester (Brown & Connery, LLP, attorneys; Christine P. O'Hearn, of counsel and on the brief; Mr. Teris, on the brief). PER CURIAM
Plaintiff Nancy Gerrity appeals from the grant of summary judgment to defendants, the County of Salem and the County of Gloucester. Plaintiff contends that her termination as a Salem County health officer was barred by N.J.S.A. 26:3A2-17 of the 1975 Local Health Services Act (LHS Act), N.J.S.A. 26:3A2-1 to -20.1. We disagree, and affirm.
I.
The following undisputed facts are drawn from the trial court's oral opinion granting summary judgment. Plaintiff was employed as a licensed Salem County Health Officer for two years and almost eight months. Her annual salary was $98,159.
On January 1, 2014, Salem County and Gloucester County entered into a Shared Services Agreement (SSA). The SSA provided that Gloucester County would provide a health officer whom Salem County would designate as its health officer. This shared health officer would serve as the enforcement agent for Salem County, as well as Gloucester County. In return, the SSA required Salem County to pay a negotiable amount for the services of the shared Health Officer.
The SSA states it should not be construed to delegate any authority, other than the authority to conduct the operation and activities related to a New Jersey State-licensed health officer on a cooperative basis.
Plaintiff received a letter dated January 3, 2014, explaining that due to budgetary constraints, Salem County would be entering into the SSA with Gloucester County to contract for services to be provided by its health officer. The letter stated that Salem County was dismissing her from employment effective January 8, 2014.
Plaintiff filed a complaint in the Law Division, seeking a declaratory judgment that Salem County had violated her rights under N.J.S.A. 26:3A2-17; an order transferring her to the Gloucester County health agency with comparable pay and duties; and the award of back pay, damages, counsel fees, and costs.
On September 5, 2014, after hearing argument, the trial court denied plaintiff's motion for summary judgment, and granted defendants' cross-motions for summary judgment. Plaintiff appeals.
II.
Summary judgment must be granted if the court determines "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); accord Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Here, there is no dispute of material fact, only a dispute over the meaning of N.J.S.A. 26:3A2-17. "Our review of the meaning of a statute is de novo, and we owe no deference to the interpretative conclusions reached by the trial court[.]" Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 564 (2012). Moreover, "[a] ruling on summary judgment is reviewed de novo. We thus 'apply the same standard governing the trial court,' and do not defer to the trial court's . . . interpretation of 'the meaning of a statute[.]'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citations omitted). We must hew to that standard of review.
III.
To properly address plaintiff's appeal, it is necessary to review the history, intent, and language of the 1975 LHS Act. "In the early ages of our State implemented local health services scheme, the primary responsibility for public health protection was delegated to the municipalities. Over time, the Legislature recognized the need for a broader approach to health services." Stanziale v. Monmouth Cty. Bd. of Health, 350 N.J. Super. 414, 416 (App. Div.), certif. denied, 174 N.J. 361 (2002). "Certain County Boards of Health were legislated early on, but the county board of health as a viable option was not effectively legislated until the 1975 Act." Id. at 416-17 (citation omitted). A 1974 report recommended "that a concerted effort be made to achieve consolidation of local health departments so that adequate public health service is available throughout the State." New Jersey County and Municipal Government Study Commission, Community Health Services: Existing Patterns--Emerging Trends ("1974 Report") at 5 (November 1974) (emphasis in original). The 1974 Report stated that "[t]his effort should be made by legislation such as the amended version of [Senate Bill 130]," which became the LHS Act. Ibid.
That concerted effort for consolidation was made in the 1975 LHS Act. "The Act's objective is the delivery of health services by areawide health agencies [such as a county health department] as an alternative to the delivery of such services by local boards of health." Mizerak v. Cty. of Middlesex, 230 N.J. Super. 577, 579 (App. Div. 1989), certif. denied, 121 N.J. 617 (1990); see also Stanziale, supra, 350 N.J. Super. at 417-18 ("the intent of the 1975 Act was to encourage county provided health services over municipal provided health services"); State v. Bd. of Health, 208 N.J. Super. 415, 418-19 (App. Div.) (the LHS Act "provid[ed] a means by which [municipalities] could enter into regional or county-wide arrangements"), certif. granted, 104 N.J. 426, appeal dismissed, 107 N.J. 50 (1986).
As explained by the sponsor of Senate Bill 130, "[f]or several decades it has been apparent that the smaller municipalities, each with a low population and minimal tax base, could not establish health departments which provided the required public health activities meeting the minimum standards of performance." Statement attached to S.B. 130 (1975). The sponsor added that "the need for larger area health units is obvious," and that such new county, regional, and other agencies should be promptly created after enactment of the proposed act. Ibid.
Thus, in the LHS Act, the Legislature declared that
the policy of this State is to assure the provision of a modern and manageable array of public health services to all citizens of the State and to encourage the efficient delivery of such services by areawide health departments where such arrangements are needed to enable municipalities to meet "Standards of Performance" as determined by the Public Health Council.
[N. J.S.A. 26:3A2-2.]
The LHS Act authorized the establishment of county boards of health, the creation of county health departments meeting the standards of performance, and the conversion of existing county health agencies into county health departments. N.J.S.A. 26:3A2-4, -6(a), -6(b). "In any county in which a county health department has not been established," the county board of freeholders was required to: prepare "within 90 days of the effective date of this act" a detailed report indicating the manner and organization by which health services meeting the standards of performance shall be provided for the territorial area of the county; hold a public hearing "[w]ithin 30 days following the completion of the report"; and prepare and send a revised report to the State Commissioner of Health (commissioner) "[w]ithin 30 days following the completion of the public hearing." N.J.S.A. 26:3A2-6(c).
The LHS Act also provided that "[w]ithin 18 months after the effective date of this act, the commissioner shall advise every municipal board of health as to whether said board meets the 'Standards of Performance.'" N.J.S.A. 26:3A2-10(b). "In every municipality not presently providing a program of public health services meeting the 'Standards of Performance,' as determined herein by the commissioner, the elected governing body shall, within 24 months after the effective date of this act, provide a program of public health services meeting 'Standards of Performance.'" N.J.S.A. 26:3A2-10(c).
The LHS Act required municipalities to meet this requirement "by use of the services of one or more of the following agencies:" (1) an "Individual municipal local health agency;" (2) a "Contracting health agency," namely a municipality or group of municipalities which enter into contractual agreements with health agencies; (3) a "Regional health commission," namely an association of boards of health of two or more municipalities; or (4) a "County health department." N.J.S.A. 26:3A2-10(c); see also N.J.S.A. 26:3A2-3(e), (f). If a municipality failed to comply, the commissioner was required to "cause a public health services program meeting the 'Standards of Performance,' to be provided in that municipality at the expense of the municipality." N.J.S.A. 26:3A2-11(a).
Thus, in order to obtain compliance with new statewide standards of performance for health agencies, the LHS Act provided for the creation of new county, regional, multi-municipal, and municipal health agencies within two years of the April 1, 1976 effective date of the LHS Act.
The Legislature enacted provisions to protect the employees of existing local health agencies during this reshuffling. Plaintiff relies on one such provision, N.J.S.A. 26:3A2-17, which provides in pertinent part:
See N.J.S.A. 26:3A2-3(a) (defining a "Local health agency" as "any county, regional, municipal or other governmental agency organized for the purpose of providing health services, administered by a full-time health officer and conducting a public health program pursuant to law").
Each person who shall have been employed as a full-time employee for a period of 2 years or more by a local health agency whose employment by such agency was not governed by the provisions of the Civil Service law, and whose employment by such agency shall have been terminated by reason of the assumption of its activities and responsibilities by another local health
agency, shall be transferred to the local health agency and be assigned duties comparable to those previously performed by him. He shall be entitled to and credited with all rights and privileges accruing to him by reason of his tenure in such previous office or position the same as if the entire period of such employment had been in the position to which he shall have been transferred . . . . His compensation shall be fixed at not less than the amount received by him at the time of transfer.
[N. J.S.A. 26:3A2d-17 (emphasis added).]
Thus, N.J.S.A. 26:3A2-17 provided protection to the employees of a local health agency if "its activities and responsibilities [have been assumed] by another local health agency." Ibid. (emphasis added). "Its" clearly refers to the local health agency. By the plain meaning of its text, N.J.S.A. 26:3A2-17 only applied if a local health agency has had its activities and responsibilities entirely assumed by another local health agency.
This plain-text reading of N.J.S.A. 26:3A2-17 is supported by the history and intent of the LHS Act, which was designed to promote consolidation of local health agencies into county, regional, or multi-municipality health agencies, or their replacement by newly-created local health agencies. It is also supported by the 1974 Report's commentary on Senate Bill 130, which became the LHS Act. The report noted that the first part of this legislation enabled the much-needed consolidation of local health agencies. The report then stated: "Part two of this legislation deals with health personnel and job security in the event a local health agency transfers its activities to a different health agency. . . . These provisions grant the long needed security to professionals whose positions could be jeopardized by area-wide consolidation of health agencies." 1974 Report, supra, at 55 (emphasis added).
Here, Salem County's health department has not had its activities and responsibilities assumed by another local health agency. The Salem County Department of Public Health and Human Services still exists and performs its activities and responsibilities. Indeed, the SSA states that: the shared health officer will report to each county's Director of Health, who remains responsible for policy, programs, administration, budgeting, and staff; each county maintains separate health staff to meet all statutory and regulatory obligations for the operation of the office; and each county will maintain an annual operational budget to maintain their respective operations. Thus, N.J.S.A. 26:3A2-17 did not apply here, and provided no protection to plaintiff.
Salem County submitted a certification that its Department of Public Health and Human Services has more than twenty-five employees as of July 31, 2014, and has an annual budget of $703,180.
Nonetheless, plaintiff argues that N.J.S.A. 26:3A2-17 protects her because "her duties" have been assumed by the health officer shared with Gloucester County pursuant to the SSA. She argues that "its" in N.J.S.A. 26:3A2-17 also refers to a person. However, statutory "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." N.J.S.A. 1:1-1. In context, the Legislature in N.J.S.A. 26:3A2-17 used "its" in its generally accepted meaning to refer to a thing, the local health agency, not to a person, the terminated employee, whom N.J.S.A. 26:3A2-17 referred to using "he," "him," or "his."
Plaintiff cites N.J.S.A. 1:1-2, which states:
Whenever, in describing or referring to any person, party, matter or thing, any word importing the singular number or masculine gender is used, the same shall be understood to include and to apply to several persons or parties as well as to 1 person or party and to females as well as males, and to bodies corporate as well as individuals, and to several matters and things as well as 1 matter or thing.The language of N.J.S.A. 1:1-2 does not support plaintiff's argument. This section broadens the meaning of "it" to include "several matters and things." Ibid. The section also instructs that the masculine gender is understood to include females and things. Ibid. However, the section does not expand the meaning of "it" to refer to a person.
We note that the Legislature similarly used "its" and "he," "him," and "his" in N.J.S.A. 26:3A2-16, which provided the same rights to transfer, continued employment, and the same pay to full-time civil servants as N.J.S.A. 26:3A2-17 provided to other full-time employees. N.J.S.A. 26:3A2-16 similarly limited its protections to:
[e]ach person who shall have been employed as a full-time employee of a local health agency whose employment by such agency was governed by the provisions of the Civil Service law and whose employment by such agency shall have been terminated by reason of the assumption of its activities and responsibilities by another local health agency[.]
[Ibid. (emphasis added).]
Plaintiff notes the word "its" was not used in N.J.S.A. 26:3A2-18, which addressed part-time employees:
Every person, who shall have been employed as a part-time employee of a local board of health for a period of 2 years or more, and whose employment by such agency shall be terminated by reason of the assumption by another local health agency of activities and responsibilities, shall be placed on a preferential reemployment list for a period of at least 2 years for positions in that local health agency requiring the same license and type and class of work.However, that provision only placed the terminated part-time employee on a reemployment list. It did not provide the same rights to a transfer, continuous employment, and the same pay as provided to full-time employees under N.J.S.A. 26:3A2-16 or -17.
Plaintiff cites the sponsor's statement to the bill which became the LHS Act. The sponsor commented that "[t]he intent of the proposed legislation is to provide modern public health services in unserviced areas while protecting the status of existing effective local health agencies." Statement attached to S.B. 130 (1975). However, that comment shows an intent to protect local health agencies already meeting the standards of performance, not individual employees. See N.J.S.A. 26:3A2-10.
IV.
The trial court properly found that "[t]he plain meaning of the statute does not give the plaintiff a cause of action." The court emphasized that N.J.S.A. 26:3A2-17's protection applies to terminated employees of a local health agency only if "its activities and responsibilities" are assumed by another local health agency. We reach the same result in our de novo review.
Plaintiff challenges other rationales advanced by the trial court. However, even if the trial court's other rationales were mistaken, that would not change our de novo construction of N.J.S.A. 26:3A2-17.
Plaintiff complains that the trial court referred to N.J.S.A. 26:3A2-17's title or "headnote." N.J.S.A. 26:3A2-17's headnote is "Transfer of non-civil service employees of terminated local health agency to superseding agency." No headnotes appeared in the LHS Act when passed by the Legislature. See, e.g., L. 1975, c. 329, § 17. Instead, the headnotes were apparently added upon the statute's compilation. See N.J.S.A. 1:3-1 (the Office of Legislative Services (OLS) "shall cause headnotes, descriptive of the contents, to be printed at the beginning of such sections as it shall deem appropriate").
N.J.S.A. 26:3A2-16 was given a similar headnote: "Transfer of civil service employees of terminated local health agency to superseding agency."
Generally, "because headnotes are not the product of legislative action, they are not deemed part of the legislation itself and do not assist in statutory interpretation." J.O. v. Twp. of Bedminster, 433 N.J. Super. 199, 213 n.6 (App. Div. 2013) (citing N.J.S.A. 1:3-1; other citations omitted), certif. denied, 217 N.J. 295 (2014). Regardless of the headnote, we find that N.J.S.A. 26:3A2-17's text, intent, and history show that it was meant to protect employees of a local health agency only if the agency's activities and responsibilities are assumed by another local health agency as part of the consolidation of agencies under the LHS Act.
Cf. Phillips v. State, Dep't of Def., 98 N.J. 235, 244 n.3 (1985) ("Nevertheless, a title may be utilized in the construction of a statute so long as it does not serve to expand the legislation beyond what was enacted."). Here, the OLS's headnote does not expand the legislation, but accords with the interpretation we reach based on N.J.S.A. 26:3A2-17's text, intent, and history.
Defendants note that bills were introduced in 2014 to amend N.J.S.A. 26:3A2-16 and -17 to make transfer optional. The sponsors' statements similarly observed that "[u]nder current law, when the activities and responsibilities of a local health agency are assumed by a superseding local health agency, all terminated employees of the old agency must be transferred to the new agency[.]" Statement attached to S.B. 1954 (2014); Statement attached to Gen. Assemb. Bill 1156 (2014). We do not base our ruling on these statements in bills that have not been enacted.
Plaintiff also questions the trial court's reference to N.J.S.A. 26:3-22, which provided that "[l]ocal boards of health of two or more adjacent municipalities may join in employing a health officer[.]" She argues that section is irrelevant because it is part of Title 26's Chapter 3, which is captioned "Local Boards of Health." She asserts Chapter 3 is a separate regulatory scheme that cannot apply to county entities, citing Mizerak, supra, 230 N.J. Super. at 580 (holding that N.J.S.A. 26:3-25.1 does not apply to a county health department). We have rejected that assertion. See Stanziale, supra, 350 N.J. Super. at 417-19 (distinguishing Mizerak and holding that N.J.S.A. 26:3-25.1 "applies to a county board of health"). "[T]he term 'local boards of health' invariably has been defined in such a way as to encompass a county board of health." Id. at 417 (citing N.J.S.A. 26:1-1; N.J.S.A. 26:1A-1; N.J.S.A. 26:3-69.1). In any event, we need not rely on N.J.S.A. 26:3-22 to determine the meaning of N.J.S.A. 26:3A2-17.
On appeal, plaintiff cites N.J.S.A. 26:3A2-14, which states that "[e]very local health agency shall be administered by a full-time health officer." As "local health agency" includes county health agencies, N.J.S.A. 26:3A2-3(a), plaintiff now argues that each county is required to have its own health officer. However, we decline to reach that issue, because plaintiff failed to raise that argument in her complaint or in the summary judgment argument before the trial court. See Zaman v. Felton, 219 N.J. 199 (2014). Indeed, plaintiff never contested the ability of Salem County to enter into an SSA sharing a full-time health officer with Gloucester County, but instead asked to be transferred to Gloucester County.
Plaintiff cites our case addressing "whether a municipality may satisfy the requirement that it have a full-time health officer, N.J.S.A. 26:3A2-14, by contractual delegation to a private firm." Bd. of Health, supra, 208 N.J. Super. at 416. We rejected that position primarily because a health officer must "be an individual on the public payroll." Id. at 417. We did not rule out the sharing of health officers: "If the Board elects not to employ its own full-time health officer, it is limited to cooperative arrangements with other municipalities or a county board." Id. at 419 (citing N.J.S.A. 26:3A2-10(c)).
V.
Moreover, plaintiff's employment was not terminated as a result of a consolidation of health agencies in a county to provide better health services under the 1975 LHS Act. Rather, her termination was the result of a SSA between counties to reduce expenses under the 2007 Uniform Shared Services and Consolidation Act (USSAC Act), N.J.S.A. 40A:65-1 to -35.
In the USSAC Act, the Legislature found that the variety of specialized statutes permitting shared services between local units "have not been very effective in promoting the broad use of shared services as a technique to reduce local expenses funded by property taxpayers." N.J.S.A. 40A:65-2(a), (b). The Legislature found it appropriate "to enact a new shared services statute that can be used to effectuate agreements between local units for any service or circumstance intended to reduce property taxes through the reduction of local expenses." N.J.S.A. 40A:65-2(c).
The USSAC Act allows agreements between "local unit[s]," including counties. N.J.S.A. 40A:65-3; see also N.J.S.A. 40A:11-2(1)(a). N.J.S.A. 40A:65-4(a)(1) provides:
Any local unit may enter into an agreement with any other local unit or units to
provide or receive any service that each local unit participating in the agreement is empowered to provide or receive within its own jurisdiction, including services incidental to the primary purposes of any of the participating local units including services from licensed or certified professionals required by statute to be appointed.
The USSAC Act does not provide that employees displaced by an SSA generally must be transferred, retained, or paid. Rather, transfer is optional, and "terminat[ion] for reasons of economy or efficiency" is authorized even for civil servants. N.J.S.A. 40A:65-11(a)(1)-(2). This comports with the USSAC Act's purpose "to reduce property taxes through the reduction of local expenses." N.J.S.A. 40A:65-2(c).
The USSAC Act provides protection from termination only to law enforcement officers. N.J.S.A. 40A:65-8(a), -17(a); but see N.J.S.A. 40A:65-8(b), -17(b) (permitting the demotion of a chief law enforcement officer "for the efficient administration and operation of the shared law enforcement services").
"It is the intent of the Legislature to facilitate and promote shared service agreements, and therefore the grant of power under [the USSAC Act] is intended to be as broad as is consistent with general law." N.J.S.A. 40A:65-13. The Legislature has further instructed that "[a]ny shared service . . . agreement . . . shall be deemed in furtherance of the public good and presumed valid, subject to a rebuttable presumption of good faith on the part of the governing bodies entering into the agreement." N.J.S.A. 40A:65-34(a).
It would defeat the USSAC Act's purpose if we were to permit plaintiff to invoke the LHS Act's inapplicable provisions providing that terminated employees must be "transferred" to the new agency and paid "at not less than the amount received by him at the time of transfer." N.J.S.A. 26:3A2-17. Accordingly, we reject plaintiff's attempt to invoke the LHS Act's protections when her termination instead arose under the USSAC Act.
VI.
Plaintiff also argues that she had tenure that prevented her termination. She concedes that "[t]he right to tenure is created and governed entirely by statute." Merlino v. Borough of Midland Park, 172 N.J. 1, 8 (2002). However, plaintiff cites no statute giving tenure to health officers.
Plaintiff cites the LHS Act's provision that a terminated employee who has been transferred "shall be entitled to and credited with all rights and privileges accruing to him by reason of his tenure in such previous office or position the same as if the entire period of such employment had been in the position to which he shall have been transferred." N.J.S.A. 26:3A2-17. However, this provision of the 1975 LHS Act used "tenure" in its meaning as "[t]he period of holding something," not in its secondary meaning as "a status granted after a probationary period to one holding a position. " Webster's III New International Dictionary 2357 (1971). In any event, N.J.S.A. 26:3A2-17 does not create tenure where no tenure existed "in such previous office or position."
Plaintiff also cites another portion of N.J.S.A. 26:3A2-17 providing that if "employment by the county health department to which such person shall have been transferred is subject to the provisions of the Civil Service law," then the person shall be "subject to the provisions of the Civil Service law with regard to the terms of his employment, promotion, tenure, classification, compensation and like matters." N.J.S.A. 26:3A2-17. However, plaintiff makes no claim that her position as Salem County health officer was subject to the Civil Service laws. Accordingly, we find no basis for plaintiff's claim that she has tenure or protection under the LHS Act which prevents her termination under the SSA entered into under the USSAC Act.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION