Opinion
DOCKET NO. A-4348-13T3
08-13-2015
KENNETH J. HALL, EDWARD G. JOHNSON and DERRICK GRIFFIN, Plaintiffs-Respondents, v. CITY OF EAST ORANGE, Defendant-Appellant.
Roth D'Aquanni, LLC, attorneys for appellant (Allan C. Roth, of counsel and on the brief). Respondents have not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and St. John. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0027-14. Roth D'Aquanni, LLC, attorneys for appellant (Allan C. Roth, of counsel and on the brief). Respondents have not filed a brief. PER CURIAM
Defendant City of East Orange appeals from an order enjoining it from terminating the employment of plaintiffs Kenneth J. Hall, Edward G. Johnson and Derrick Griffin, as well as ordering back pay. Plaintiffs were appointed to year-long terms as municipal prosecutors by the outgoing and recently-defeated incumbent mayor within the final week of his tenure. After the incoming administration fired them, plaintiffs brought suit in the Law Division challenging their termination. The trial court found portions of the Municipal Prosecutor Act (MPA), N.J.S.A. 2B:25-1 to -12, protected plaintiffs from termination, notwithstanding statutory limitations on a lame-duck mayor's power of appointment. On appeal, defendant argues the trial court misconstrued the pertinent statutes and erred in granting plaintiffs' desired injunctive relief. Upon our review in light of the record and governing law, we agree and reverse.
I.
The record discloses the following facts and procedural history. The parties do not dispute the relevant facts. In the June 2013 East Orange mayoral primary election, the incumbent Robert Bowser was defeated by Lester Taylor. In the general election, Taylor was elected Mayor for a term to commence on January 1, 2014. In 2013, plaintiffs were employees in Bowser's administration, working as Assistant Corporation Counsel responsible for municipal prosecution. Griffin served as Chief Municipal Prosecutor. Plaintiffs' original terms of appointment had all expired and each was working in a holdover capacity.
Section 5-27 of the East Orange Municipal Code provides: "The Mayor may appoint three Assistant Corporation Counsels for a term of one year to serve as Municipal Prosecutors, one of whom shall be designated as Chief Municipal Prosecutor. The Chief Municipal Prosecutor shall continue in office pending reappointment or the appointment of a successor." East Orange, N.J. Municipal Code § 5-27, available at http://www.ecode360.com/9558935.
On December 19, 2013, Mayor-elect Taylor informed plaintiffs via letter that their service as Assistant Corporation Counsel would terminate effective December 31, 2013. One week before his term was to expire, Bowser reappointed plaintiffs as municipal prosecutors for a one-year term purportedly lasting from December 24, 2013 to December 23, 2014. Bowser swore in plaintiffs that same day. Mayor Taylor took office on January 1, 2014, and, the next day, the incoming Corporation Counsel, Khalifah L. Shabazz, confirmed plaintiffs' termination, directing them to cease working as prosecutors and hand over their files. Their positions were filled by replacements selected by Mayor Taylor.
The record does not include the letter memorializing Griffin's reappointment as Chief Prosecutor.
Plaintiffs filed suit shortly thereafter "to protect their rights of continued employment secured under the mayoral authority," contending their termination violated the MPA because it occurred only a week into their asserted year-long terms. Defendant countered the temporal limitation for unelected municipal officers, N.J.S.A. 40A:9-156, invalidated the appointments. Plaintiffs filed an order to show cause and, after additional briefing and oral argument, the trial court entered its order restraining defendant from terminating plaintiffs' employment. The court held N.J.S.A. 2B:25-4 preempted N.J.S.A. 40A:9-156, and required defendant honor plaintiffs' appointment as municipal prosecutors through December 23, 2014.
Defendant moved for reconsideration, arguing the court's initial order misconstrued the statutes, failed to account for the fact that Bowser appointed plaintiffs to the non-existent position of "Municipal Prosecutor" and failed to meet the criteria set forth in Crowe v. De Gioia, 90 N.J. 126 (1982), for the issuance of preliminary injunctions. After further briefing and oral argument, the court "adhere[d] to the substance of [its] initial decision." Consequently, on April 11, 2014, the trial court entered an order compelling defendant's compliance with the prior restraining order and payment of back pay to plaintiffs from January 2, 2014.
This appeal ensued.
II.
Although the decision to grant or deny a motion for reconsideration is entrusted to the sound discretion of the motion judge, Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008), we review questions of statutory interpretation de novo, "unconstrained by deference to the decisions of the trial court." State v. Grate, 220 N.J. 317, 329 (2015).
The MPA provides that "[a] municipal prosecutor . . . shall serve for a term of one year from the date of his or her appointment," subject to limited exceptions not pertinent here. N.J.S.A. 2B:25-4(b). Subsection (g)(1) states:
Nothing in this act shall affect the appointment of municipal attorneys in accordance with [N.J.S.A.] 40A:9-139; provided, however, that a person appointed to the positions of both municipal prosecutor and municipal attorney shall be subject to all of the provisions of this act while serving in the capacity of municipal prosecutor.N.J.S.A. 40A:9-139, in turn, requires every municipality, "by ordinance, [to] provide for the appointment of a municipal attorney who may be designated as the corporation counsel or municipal attorney and unless otherwise provided by law the term of office of the municipal attorney shall be 1 year."
[N.J.S.A. 2B:25-4(g)(1).]
Here, the trial court concluded the MPA conflicted with the limitation on lame-duck appointment authority, N.J.S.A. 40A:9-156. Even though appointments by lame-duck municipal officials "'may be unwise public policy,'" see Salem Cnty. Imp. Auth. v. Salem Cnty. Bd. of Chosen Freeholders, 436 N.J. Super. 16, 25 (Law Div. 2014) (quoting Cucci v. Introcaso, 218 N.J. Super. 421, 424 (Law Div. 1986)), they are not necessarily illegal. Ibid. The central inquiry is whether the appointing authority was so empowered and "exercised that power in accordance with law." Ibid. (citing Bd. of Recreation Comm'rs of Rutherford v. Rutherford, 166 N.J. Super. 476, 482 (App. Div. 1979)).
Nevertheless, there are several important historical and, more recently, statutorily-recognized limitations upon a lame-duck's appointment authority. In N.J.S.A. 40A:9-156, the Legislature codified the common-law rule that "[n]o appointment of any officer shall be made by the mayor or . . . the governing body of any municipality where the term of the office is to commence after the expiration of the term of the officer making the appointment." Accord Salem Cnty., supra, 436 N.J. Super. at 25 ("'At common law the well-recognized rule was that an official empowered to appoint a public officer may not forestall the rights and obligations of his successor by making an appointment where the term of the appointee will not take effect until after the expiration of the term of the appointing officer.'" (quoting Georgia v. Suruda, 154 N.J. Super. 439, 448 (Ch. Div. 1977))).
The Legislature went further, providing:
The terms of office of all officers appointed by the mayor or other chief executive officer or by the governing body of any municipality, except to fill vacancies, shall commence on January 1 of the year in which they are appointed and continue for the terms prescribed by law . . . .
[N.J.S.A. 40A:9-156.]
Here, plaintiffs qualified as "officers" within the meaning of the statute. See East Orange, N.J. Municipal Code § 60-17(b), available at http://www.ecode360.com/9562271 (identifying "[t]he Corporation Counsel, all Assistant Corporation Counsels and Prosecuting Assistant Counsels" as "appointed officers"); cf. Stomel v. City of Camden, 192 N.J. 137, 152 (2007) (holding municipal public defender qualified as a municipal "officer" subject to removal by the mayor). Moreover, plaintiffs' appointments do not fall within the exception for "vacancies" set forth in N.J.S.A. 40A:9-156, notwithstanding the fact their initial terms had expired and they were continuing in a holdover capacity. See N.J.S.A. 40A:9-11 (recognizing the creation of a vacancy when a municipal officer ceases to comply with residency requirements or upon a proper authority's acceptance of his or her resignation); N.J.S.A. 40A:9-12.1 (enumerating additional grounds resulting in vacancies not present here); Monroe Twp. Council v. Garibaldi, 216 N.J. Super. 19, 22 (App. Div. 1987) (holding municipal department head continuing in a holdover capacity after the expiration of his term did not create a vacancy).
Even if plaintiffs' positions were "vacant" as statutorily defined, which we conclude they were not, we would still be compelled to reverse because their appointments violated defendant's own requirements for filling vacancies. See East Orange, N.J. Municipal Code § 60-10, available at http://www.ecode360.com/9562253 (empowering mayor to temporarily fill vacancy, but requiring council approval for any term greater than forty-five days).
Therefore, the trial court erred in concluding a conflict existed between N.J.S.A. 2B:25-4(b) and N.J.S.A. 40A:9-156 and, further, that the former's provision for mandatory one-year terms for municipal prosecutors trumped the latter's limitation on lame-duck mayoral appointments. We discern no such conflict between the statutes. Plaintiffs' appointments were valid, but only through the end of December 2013, one year from January 1 in the year in which they were appointed. Similarly, Mayor Taylor's termination of their employment fully comported with the MPA, since the appointments were from January 1 to December 31, 2013, and plaintiffs each completed their respective terms. As such, we hold the trial court erred in enjoining defendant from terminating plaintiffs' employment and ordering back pay. The balance of defendant's arguments are moot, and we need not address them. See Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006).
Any argument their appointment took effect in 2014 would violate the codified common-law rule's clear prohibition against prospective appointments by outgoing municipal officials. See N.J.S.A. 40A:9-156; Salem Cnty., supra, 436 N.J. Super. at 25. --------
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION