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Downey v. Board of Education of Jersey City

Decided: June 6, 1962.

WILLIAM DOWNEY, JOSEPH C. TOSCANO AND HARRY F. SALOMON, PLAINTIFFS-RESPONDENTS,
v.
BOARD OF EDUCATION OF JERSEY CITY, COUNTY OF HUDSON, DEFENDANT, AND EDWARD J. DONNELLY, WILLIAM J. O'KEEFE AND AUGUSTUS A. TOMAIUOLI, DEFENDANTS-APPELLANTS



Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

Defendants appeal from a Law Division judgment which ousted them as members of the Jersey City Board of Education and adjudged that plaintiffs were entitled to the posts. The facts are not in dispute.

In 1957 Charles Witkowski was elected a commissioner and chosen mayor of Jersey City, then under Walsh Act commission government (R.S. 40:75-1 et seq.). In November 1960 Jersey City adopted mayor-council plan C of the Faulkner Act, N.J.S.A. 40:69A-55 et seq. , and pursuant thereto, on May 9, 1961, an election for mayor and councilmen was held. Witkowski, Bernard J. Berry and Thomas Gangemi were candidates for mayor at that election. No one having received a majority of the votes cast, a runoff was held on June 13 at which Gangemi was elected mayor. Under N.J.S.A. 40:69A-58 the term of office of mayor is four years "beginning on the first day of July next following his election." In the meantime Witkowski held over under N.J.S.A. 40:75-2.1.

Jersey City is a chapter 6 school district (R.S. 18:6-1 et seq.), with a board of education of nine members. Under R.S. 18:6-7 three of them are to be appointed "by the mayor * * * during the month of June of each year for a term of three years beginning on the first of July next succeeding the date of their appointment."

On June 29, 1961 Witkowski appointed defendants as members of the board of education and they took office. On July 1 at noon the newly adopted form of government took effect and Gangemi took office as mayor, N.J.S.A. 40:69A-205. Gangemi then appointed plaintiffs as members

of the board of education. When the board of education refused to seat plaintiffs, they instituted this in lieu action.

Upon the foregoing facts, which were stipulated, the Law Division ousted defendants from the board and installed plaintiffs in their stead upon the authority of N.J.S.A. 40:69A-208(a) which provides as follows:

"(a) No subordinate board, department, body, office, position or employment shall be created and no appointments shall be made to any subordinate board, department or body, or to any office, employment or position, including without limitation patrolmen and firemen, between the date of election of officers and the date the newly elected officers take office under any optional plan."

This section is part of what N.J.S.A. 40:69A-26 calls the "transitional provisions" of the Faulkner Act.

Defendants contend that 208(a) does not apply, arguing that a board of education is not a "subordinate board, department or body." Plaintiffs answer that even if that be so, section 208(a) also forbids appointment "to any office, employment or position" during the transitional period, whether it be to a "subordinate board" or not. Defendants disagree. They urge that, applying the rules of ejusdem generis and noscitur a sociis , the words "any office, employment or position" must be construed to mean subordinate offices, employments and positions, such as those which the governing body is forbidden to create by 208(a), and therefore do not include members of boards of education.

Basic to defendants' contentions is the proposition that an office or board is "subordinate" within the meaning of section 208(a) only when it is subject to the direction and control of the governing body of the municipality, or is an arm of the municipal government, performing exclusively municipal functions. Defendants argue that bodies such as boards of education, and housing authorities created under N.J.S.A. 55:14A-1 et seq. are therefore not "subordinate" but "independent," and section 208(a) does ...


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