Official Site of The State of New Jersey

July 23, 2025

BY ELECTRONIC MAIL

Hon. John Pallone, Mayor
City of Long Branch
344 Broadway
Long Branch, NJ 07740

Re: Application of the Lifeguard Pension Law

Dear Mayor Pallone:

Pursuant to N.J.S.A. 52:15C-5(a), the Office of the State Comptroller (OSC) is charged with conducting “routine, periodic, and random audits” of government agencies. Pursuant to that authority and consistent with N.J.S.A. 52:15C-8c(3), OSC has established objective criteria and developed a risk assessment for undertaking performance audits of government entities and programs.

OSC issued a September 22, 2023 engagement letter to the City of Long Branch (City or Long Branch) to initiate a performance audit of the administration of its lifeguard pension plan. In response, the City’s chief financial officer informed OSC that the City does not have a lifeguard pension plan. At that time, OSC recommended that the City review the Lifeguard Pension Law^[1]  with its legal professionals to determine its applicability to Long Branch.

In January 2025, OSC requested a written update on the status of the City’s review of the Lifeguard Pension Law’s applicability. The City’s attorney provided the update in February 2025, indicating that the Lifeguard Pension Law did not and has never applied to Long Branch. The City’s attorney asserts that Long Branch, “is not a ‘city’ as organized by statute, but rather is an optional municipal charter law municipality.” The City that the Lifeguard Pension Law is only applicable to those municipalities using the city form of government as authorized in N.J.S.A. 40A:61-1 to -8.

N.J.S.A. 43:13-23 to -29 requires a city of the fourth-class to create and administer a pension plan for its lifeguard employees. A city of the fourth-class, defined by N.J.S.A. 40A:6-4, is a city bordering the Atlantic Ocean and is a seaside or summer resort. The City’s response contends that the selection of a governance structure under the Faulkner Act^[2] and classification as a city under N.J.S.A. 40A:6-4 are mutually exclusive statuses. This exclusivity is not supported by the Faulkner Act, case law, or the operations in similarly situated seaside or summer resort cities. OSC considers Long Branch to be a fourth-class city based on the facts and circumstances detailed herein.*

History

The Long Branch Commission was formed from Ocean Township in 1867. In 1882, the Legislature developed a classification system creating four classes of cities for legislative purposes.^[3] In an 1885 opinion,^[4] the New Jersey Supreme Court found that at the time, “[t]he classification of cities of the fourth class ‘shall consist of cities of this state bounding upon the Atlantic Ocean and being seaside or summer resorts.’ Long Branch is not a city within this description. There are such cities, but Long Branch is not a city.” The New Jersey Legislature incorporated the Long Branch Commission as a city to be known as Long Branch on April 8, 1903.

^[5]

The City of Long Branch adopted a commission form of government in 1916 as permitted by the Walsh Act.^[6] In a 1918 matter involving the term of mayor, the New Jersey Supreme Court wrote, “[t]he city of Long Branch is now and since May 16th, 1916, has been governed by the Walsh Act and its amendments.”^[7] The court found that the Walsh Act limits “the compensation of the mayor and commissioners in cities of the fourth class, to which Long Branch belongs.”^[8] (Emphasis added.) The court’s declaration that Long Branch is a city of the fourth-class makes it clear that a municipality’s classification as a city is not contingent upon using the city form of government. Long Branch was not a city prior to its incorporation, but after its incorporation the court found it to be a city of the fourth-class. The Legislature passed the first Lifeguard Pension Law in 1928,^[9] followed by amendments in 1929^[10] and 1936,^[11] requiring lifeguard pensions for lifeguards in cities of the fourth-class. The Lifeguard Pension Laws applied to Long Branch when enacted.

The Legislature approved the Faulkner Act^[12] in 1950. The Faulkner Act, and its amendments, permits a municipality to select alternative governance structures from those permitted through earlier legislation. Long Branch adopted a Council-Manager Form D form of government effective in 1961.^[13] The City adopted its current form of government, Mayor-Council Form A, effective July 1966.^[14]

Application of Statutes in Municipalities Using Faulkner Act Forms of Government

The Faulkner Act, specifically N.J.S.A. 40:69A-26, establishes the legal framework of how municipalities govern themselves after the adoption of a form of government under the act. The municipality is governed by the plan adopted, by the provisions of the Faulkner Act common to optional plans, and by all applicable provisions of general law, subject to the transitional provisions within the Faulkner Act. N.J.S.A. 40:69A-28 defines a general law as follows:

For the purposes of this act, a "general law" shall be deemed to be any law or provision of law, not inconsistent with this act, heretofore or hereafter enacted which is by its terms applicable or available to all municipalities, and the following additional laws whether or not such additional laws are so applicable or available to all municipalities: legislation relating to taxation, local courts, education, health, public authorities serving more than one municipality, and municipalities in unsound financial condition.

In Bucino v Malone,^[15] the New Jersey Supreme Court reviewed the constitutionality of N.J.S.A. 40:69A-26 and 28. The Court wrote:

Section 28 merely provides that two kinds of general laws shall still be applicable to municipalities that adopt a charter under the Faulkner Act, notwithstanding such action. First are those general laws applicable to all municipalities no matter what their class may be. Second are those laws which, although they cover the class in which the particular municipality falls, do not refer to all municipalities generally. (Emphasis added.)

The Court found in Bucino that laws governing classes of cities fall into “general law” as defined in N.J.S.A. 40:69A-28.^[16] The Court further found that “general law,” as defined by N.J.S.A. 40:69A-28, would continue to govern municipalities that have opted for the Optional Municipal Charter Law, pursuant to N.J.S.A. 40:69A-26.

^[17]

The language within the Faulkner Act relies on the statutory classification system for cities for its implementation. This indicates that the Legislature intended for the statutes to be used in conjunction with one another. The Faulkner Act explicitly requires or permits actions in various classes of cities. Specifically, the Faulkner Act requires a board of alcoholic beverage control in first class cities,^[18] permits the appointment of a deputy director in cities of the second class operating under the “Mayor-Council Plan D” form of government,^[19] and allows the mayor to appoint the police chief in cities of the first class under the “Mayor-Council Plan C” form of government when permitted by ordinance.^[20] The Faulkner Act’s reliance on the classification system of cities established in N.J.S.A. 40A:6-4 suggests that it was not the Legislature’s intent to create a new type of municipality through the Faulkner Act. A city that selects a form of government under Faulkner Act remains a city of the first, second, third, or fourth-class as defined in N.J.S.A. 40A:6-4.

Seaside or Summer Resort Cities

There are nine cities boarding the Atlantic Ocean with lifeguard pension programs. A 2011 Inventory of Municipal Government Forms^[21] reports that only one fourth-class city continues to use the city form of government. According to the Inventory, three cities use a commission form of government^[22] and five cities use a form of government available through the Faulkner Act.^[23] Of those five cities, three use the Mayor-Council form of government like Long Branch.^[24] In a number of these cities, the courts have required the creation of pension programs for lifeguards regardless of the form of government selected by the city.^[25] It thus appears that Long Branch is required to comply with the requirements of the Lifeguard Pension Law.

Only a court can conclusively determine the legal rights and duties involved, but OSC notes that the failure to create and administer a lifeguard pension plan is contrary to the requirements of N.J.S.A. 43:13-23 to -29. The City’s noncompliance with the statutory requirements may create significant liabilities for the City. OSC urges the City to address this issue further with legal counsel.

Sincerely,

KEVIN D. WALSH
ACTING STATE COMPTROLLER

By: Christopher Jensen, CPA
Director, Audit Division

c: Jacquelyn Suarez, Commissioner, Department of Community Affairs
   Michael F. Rogers, Director, Department of Community Affairs, Division of Local Government Services
   Michele Meade, Deputy Director, Department of Community Affairs, Division of Local Government Services
   Tina Zapicchi, Assistant Director, Financial Regulations, Department of Community Affairs, Division of Local Government Services
   Jorge Carmona, Bureau Chief, Department of Community Affairs, Division of Local Government Services
   Charles F. Shirley, Jr., Business Administrator, City of Long Branch
   Michael Martin, Chief Financial Officer, City Long Branch
   Bill Dangler, City Council, City of Long Branch

* Prior to the release of this letter, Long Branch was given a draft and provided the opportunity to respond. The City’s response is attached as Appendix A. In its response, the City questions the enforceability of the law and contends that funding a lifeguard pension plan “appears to run counter to the stated purpose of the Office of the State Comptroller.” In addition to evaluating compliance with the Lifeguard Pension Law at the municipal level, we reviewed the impact of the law collectively in our New Jersey’s Lifeguard Pension Programs report and make recommendations to the Legislature to address the arbitrariness and unequal application of the law.