Original WP 5.1
This case can also be found at 350 N.J. Super. 414, 795 A.2d 892.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
FULVIO STANZIALE and
OF AMERICA, AFL-CIO,
MONMOUTH COUNTY BOARD OF
HEALTH and MONMOUTH COUNTY,
Argued April 17, 2002 - Decided April 26, 2002
Before Judges Conley, A. A. Rodríguez and Lefelt.
On appeal from Superior Court of New Jersey, Law Division,
Monmouth County, L-4665-99.
Rosemarie Cipparulo argued the cause for appellants (Weissman
& Mintz, attorneys; Ms. Cipparulo, of counsel and on the
Frederick P. Niemann argued the cause for respondents (Malcolm
V. Carton, Monmouth County Counsel, attorney; Mr. Niemann,
Assistant County Counsel, on the brief).
The opinion of the court was delivered by
Plaintiffs appeal a summary judgment in favor of defendants
dismissing plaintiffs' complaint. The complaint sought a
declaration that N.J.S.A. 26:3-25.1, which mandates that certain
local health employees receive the maximum salary in their
respective salary ranges after five years of service, applies to
licensed Registered Environmental Health Specialists (formerly
Sanitary Inspectors) employed by defendant Monmouth County Board of
Health (Board). The complaint also sought an award of back pay for
plaintiff Fulvio Stanziale who, as of September 1995 had been
employed by the Board as a Registered Environmental Health
Specialist for five years, was still so employed as of the date of
the complaint, February 2000, yet had never received the maximum
salary for that position. The trial judge concluded, as a matter
of law, that N.J.S.A. 26:3-25.1 does not apply to a county board of
health. We disagree and reverse.
The critical facts are easily set forth. Following the
enactment of the Local Health Services Act, N.J.S.A. 26:3A2-1 to -
35, L. 1975, c. 329, the Monmouth County Board of Chosen
Freeholders created the Board. As required by N.J.S.A. 26:3A2-6,
the Board's first resolution, Resolution #1-1978, was to create a
county health department. The certification from the Monmouth
County Public Health Coordinator, filed in support of defendants'
motion for summary judgment, refers to plaintiff Stanziale as
employed by the county health department. It is, however,
asserted in the complaint, admitted in defendants' answer and
clearly established by the Board's Resolution #33-90, which
memorializes plaintiff's employ, that plaintiff's employer is the
Board. We make a point of this at the outset as this fact is
critical in our analysis of Mizerak v. County of Middlesex,
230 N.J. Super. 577 (App. Div. 1989), certif. denied,
121 N.J. 617
(1990), which held that N.J.S.A. 26:3-25.1 does not apply to a
sanitary inspector employed by the Middlesex County Health
Department, and in our rejection of the trial judge's view that
Mizerak is controlling here.
We begin with the statute. N.J.S.A. 26:3-25.1 (hereinafter §
Every person holding a license issued under
section 41 of P.L. 1947, c. 177 (C:26:1A-41),
who is employed in a position for which this
license is required by any board of health,
municipality or group of municipalities shall
receive the maximum salary in the person's
range, within five years from the date of
appointment to this position if the majority
of the person's job performance evaluations
"[A]ny board of health," facially, would seem to include a county
board of health.
This clarity of facial meaning is somewhat clouded, however,
because Chapter 3 of Title 26, in which § 25.1 is located, is
captioned "Local Boards of Health" (emphasis added). 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. Certain County
Boards of Health were legislated early on, seeN.J.S.A. 26:11-1 to
-31, repealed by L. 1975, c. 329, § 21, but the county board of
health as a viable option was not effectively legislated until the
1975 Act. Seegenerally, New Jersey County and Municipal
Government Study Commission, Community Health Services: Existing
Patterns _ Emerging Trends (November 1974) (1974 Study Commission),
pp. 7-10; Interim Report of the Governor's Committee on Local
Health Administration (June 1, 1950) (1950 Interim Report), pp. 7-
Thus, when originally enacted in 1947, § 25.1 applied to
persons employed by a "municipality or group of municipalities."
L. 1947, c. 181, § 5. But when amended in 1950 to extend to "any
board of health," county boards of health were very much in the
contemplation of the Legislature. Seegenerally 1974 Study
Commission; 1950 Interim Report. Moreover, over the history of
Title 26 and its various legislative enactments, the term "local
boards of health" invariably has been defined in such a way as to
encompass a county board of health. SeeN.J.S.A. 26:1-1; N.J.S.A.
26:1A-1; N.J.S.A. 26:3-69.1. As we said in Mizerak v. County of
Middlesex, supra, 230 N.J. Super. at 581, "[s]ection 25.1 preceded
the Interim Report, but must be considered in context with the
history of health legislation described in the [Interim Report] .
. . . "
Both facially, then, and consistent with the legislative
history of local health services enactments, we are convinced the
term "any board of health" as used in § 25.1 applies to a county
board of health. We are further convinced that not only does
Mizerak v. County of Middlesex, supra, not require a different
result but, rather, supports our conclusion.
Before discussing Mizerak, we digress briefly to explain the
various options afforded local governments with the 1975 enactment
of the Local Health Services Act. As the 1974 Study Commission
indicates, the intent of the 1975 Act was to encourage county
provided health services over municipal provided health services
for both political and fiscal reasons. SeeMizerak v. County of
Middlesex, supra, 230 N.J. Super. at 579. The Act, therefore,
empowers county boards of chosen freeholders to establish a vehicle
to provide such health services. The boards of chosen freeholders
were given two choices _ 1) establish an independent and
autonomous county board of health, N.J.S.A. 26:3A2-4, which would,
itself, establish a county health department, N.J.S.A. 26:3A2-6a;
or 2) establish its own county health department, N.J.S.A. 26:3A2-
6b. Id. at 579-80. Here, Monmouth County opted to enact a county
board of health, to exercise all the powers of a local board of
health, N.J.S.A. 26:3A2-3c, -5c, including the power to adopt,
amend and repeal health ordinances, N.J.S.A. 26:3A2-8. But, though
fairly independent of its political creator (the board of chosen
freeholders), the Board does not escape the budgetary control
thereof. N.J.S.A. 26:3A2-19.
This leads us to Mizerak. There, unlike Monmouth County,
Middlesex County chose to bypass the creation of an independent,
autonomous in all but budgetary concerns, county board of health.
Instead, it "directly establish[ed] a county health department."
Id. at 580. Plaintiff in Mizerak was employed as a sanitary
inspector by the Middlesex County Health Department and sought the
salary protections of N.J.S.A. 26:3-25.1. We noted that such a
health department "is not a local or county board of health," and
that, "[c]onsequently, the department is not covered by the plain
language of § 25.1 [N.J.S.A. 26:3-25.1] which applies only to 'any
board of health, municipality or group of municipalities.'" Id. at
580. That is not the case here.
We also observed that the legislative history did not support
an extension of N.J.S.A. 26:3-25.1 to the Middlesex Health
Department. After tracing that history, we observed that one of
the concerns of the Legislature was "inadequate resources and . .
. municipalities' reluctance to provide adequate funding." Id. at
581. One of the "barrier[s] to effective health services . . . ,"
seen by the Legislature, and as an impetus for the mandate of
N.J.S.A. 26:3-25.1, was "the friction between a local board of
health and the governing body of its municipality." Id. at 582.
This friction existed because such boards, despite their autonomy,
remain at the mercy of their respective local governing bodies for
fiscal approval of their budgets. Id. at 582-83. In Mizerak, the
Middlesex Health Department was a direct entity of the county, not
an autonomous board independent of all but the fiscal strings. Id.
Not so with the Monmouth County Board of Health. It, as well
as the County Health Department it has created, are independent in
all but its fiscal constraints. In that respect, it is dependent
upon the Board of Chosen Freeholders for approval of its budget,
including the salaries for its health officers and employees.
N.J.S.A. 26:3A2-19. The motivating rationale for N.J.S.A. 26:3-
25.1, then, applies here, whereas it did not in Mizerak.
Reversed and remanded. We caution that our reversal should
not be read as reaching or resolving plaintiff's claims for
retroactive back pay under N.J.S.A. 26:3-25.1. That issue was not
reached by the motion judge and should be considered on remand. We
do not retain jurisdiction.