dissenting.
■ I agree with my colleagues that Merlino’s sole route to tenure was an appointment to a second consecutive term. I also agree that Cutler v. Borough of Westwood, 295 N.J.Super. 344, 685 A.2d 44 (App.Div.1996), certif. denied, 149 N.J. 143, 693 A.2d 112 (1997), correctly interpreted the “fifth consecutive year” language of the statute as a limited grandfather clause with no relevance in these circumstances. Where I part company from the majority is in connection with the meaning of the word “consecutive.” I recognize that the common import of the word is “without an interval or break.” However, that notion is more 'complex than the majority believes. What constitutes an interval or break that would make two members of a series non-consecutive depends on the purpose underlying the requirement. Thus, for example, a law might bar a public official from serving two consecutive terms. In those circumstances, and in light of the purposes underlying term limits, no reasonable person would suggest that a ten-day break in service would render a second term served by the same individual non-consecutive.
That is the kind of analysis that is absent from the majority opinion in this case, which holds'essentially that any hiatus meets the “break or interval” standard and renders two terms of office non-consecutive for tenure purposes regardless of the break’s length or purpose. In my view, that is a gross oversimplification of what is the proper analysis: whether in enacting the tenure provisions of the UCCA, the legislature intended a scheme like that crafted by the governing body to pass muster. To answer that question, the UCCA requires scrutiny. The purpose underlying that statute is the creation of a cadre of highly professional construction code officials not subject to political influence in the performance of their mandated duties under applicable federal, state, county, and municipal statutes, codes, regulations, and ordinances. DeStefano v. Washington Tp., 220 N.J.Super. 273, 278, 531 A.2d 1090 (Law Div.1987). That goal is directly related both ' to the initial four-year term and the tenure provision. The four-*16year term insulates a code official from political pressure for a temporal period and allows the governing body that period to assess the official’s performance. The grant of tenure insulates a code official from any future political pressure and provides continuity and experience in code enforcement.
To be sure, the governing body is free to deny reappointment to an unsatisfactory employee. Such action advances the goals of professionalism by removing inadequate code officials. However, once an employee is found to have acquitted himself well enough to be reappointed to a second consecutive term, legislative tenure advances the goals of the UCCA by providing job security, thus ensuring that high quality, experienced persons will remain as code officials. That is why N.J.S.A. 27D-126(b) is cast in mandatory and not permissive terms: “A construction official ... shall, upon appointment to a second consecutive term ... be granted tenure.” (Emphasis added). Clearly, the Legislature did not intend that a governing body could evade statutory tenure simply by imposing a gap of a few days between regular four-year terms. Such a reading of the “consecutive” language of the act would completely undermine the Legislature’s intent to insulate construction officials from the winds of political change. Moreover, it would effectively permit the indefinite employment of a code official without the protection of tenure ever attaching. There is nothing in the majority’s opinion to prevent a governing body from placing minuscule “gaps” between all its reappointments, thereby effectively abolishing tenure. Given the majority’s bright-line rule that such gaps are permissible and prevent tenure from attaching, its prediction that its holding will create no incentive to circumvent tenure because a governing body would not “choose a route that could result in litigation” rings hollow. After this opinion, there is nothing left to litigate.
In my view, Merlino met the statutory standard for tenure. Hence, Spiewak v. Rutherford Board of Education, 90 N.J. 63, 76, 447 A.2d 140 (1982), with its holding that side agreements cannot vitiate statutory tenure terms, is applicable. Further, I note that *17nothing in such a ruling would violate Casamasino v. City of Jersey City, 158 N.J. 333, 730 A.2d 287 (1998). That case held that an employee who has not been reappointed and confirmed by the last day of his first term must vacate the office. Id. at 353, 730 A.2d 287. Merlino, indeed, was reappointed prior to the last day of his first full term, which ended on June 3, 1994. The fact that his reappointment was to be effective ten days later was of no consequence to tenure.
In addition, with respect to the majority’s public policy argument, a mechanism already exists that provides governing bodies with the flexibility necessary to address the concerns raised in the opinion. N.J.A.C. 5:23-4.4(a)(6)1 provides a procedure for a temporary appointment of a code official that may be extended or renewed with the approval of the Department of Community Affairs. Such a temporary appointment, after the expiration of an official’s first four-year term, would neither grant him tenure nor constitute a gap or interruption that would obviate tenure if he was thereafter appointed to a second consecutive term. That methodology is available to deal with the employee who improves or deteriorates near the end of his first term and requires a further period of observation. That scheme has the advantage of providing for oversight by the Department of Community Affairs, the agency charged with the ultimate responsibility for code enforcement. There is simply no provision in our law for deliberately imposing gaps or interruptions between full four-year terms *18for the purpose of avoiding tenure. As Judge Kestin, writing for the Appellate Division, correctly stated:
The mechanism that was employed has the potential of entirely frustrating the manifest législative design in enacting N.J.S.A. 52:27D-126(b). If the statutory tenure grant could be so easily evaded, any municipality could forestall the conferral of tenure indefinitely simply by employing the same mechanism every four years. Without denigrating the tidal court’s finding that no duress occurred here, we observe simply that any official faced with the choice given to plaintiff at the end of his first term would be hard pressed to refuse the offer and opt for the relinquishment of office over the guarantee of continued employment for an ensuing four-year term.
If, by the unfettered judgment of those making the decision, plaintiff had not earned reappointment to his second term, it was incumbent upon the decision-makers so to declare. There were no impediments to the denial of a second term. By choosing, instead, to grant plaintiff a second term, even in a good faith effort to defer the tenure issue, the mayor and council came squarely within the terms of the statute and, by operation of law, conferred tenure upon the plaintiff. Any subsequent effort to remove him needed to conform with statutory requirements: “for just cause after a fan- and impartial hearing.”
[Merlino v. Borough of Midland Park, 338 N.J.Super. 436, 441, 769 A.2d 1077 (App.Div.2001) (citations omitted).]
For those reasons, I dissent.
Justices STEIN and ZAZZALI join in this dissent.
For reversal — Chief Justice PORITZ and Justices COLEMAN, VERNIERO AND LaVECCHIA — 4.
For affirmance — Justices STEIN, LONG and ZAZZALI — 3.
NJ.A.C. 5:23-4.4(a)(6) states:
Acting appointments: A municipality shall appoint an acting construction official or subcode official any time the absence of such official would impede orderly administration of the Uniform Construction Code and other duties mandated by the municipality. Acting appointments shall be accomplished by any mechanism acceptable to the municipality; providing, however, that a written record shall be kept. Notice to the Department shall be provided within seven days any time an appointment is made for more than 30 days. Acting appointments may not be made for longer than 60 days, nor may they be extended or renewed beyond 60 days unless specific authority to do so is granted in writing by the Department.