On motion to quash indictment.
The defendant moves to quash indictment S-352-60 in which he is charged with "misconduct in office" as Lodi borough engineer. It is therein alleged that he knowingly violated official duties to determine the propriety of certain vouchers submitted by a contractor and to prevent the latter from unlawfully obtaining money thereunder.
The State points out that this motion directed to indictment defects has been made about a year after the
plea was entered, despite the provision of R.R. 3:5-5(b)(3). The rule requires that such a motion shall precede the plea except that with court permission it may be made thereafter. Under all the circumstances, the motion should be considered on its merits. The trial will be lengthy. In such a case matters of law should be tested in advance. The trial has been scheduled for the fall term for reasons not connected with this motion. It has not delayed the trial and therefore the defendant took initiative within a reasonable time.
The alleged duties were not specified and imposed by any statute or ordinance. They were nevertheless incumbent upon the defendant, according to the indictment, by virtue of his public office and because they were assigned to him by the borough manager.
The defendant argues that there is no fundamental or generally recognized burden on a municipal engineer to perform such auditing functions. For this reason, it is contended, the source of the duty cannot be the office per se.
Resolution of the issue is not necessary. The indictment can be supported by the allegation that the defendant's duties were assigned to him. R.S. 40:81-10 enables a municipal council to define the powers and duties of "such executive and administrative departments, boards and offices" as it may create. But there is nothing in the statute to inhibit a municipal manager's assignment of an item of responsibility to an official already acting in his administration. R.S. 40:82-4(f) requires a manager to ensure the faithful performance of municipal contracts. The allegation that the borough manager gave this express responsibility to the defendant with respect to the specified vouchers sets up a proper source of duty. A like action by the manager in State v. Begyn , 34 N.J. 35 (1961), sufficed to fasten upon the defendant there a duty which may or may not have been strictly inherent in his office. The court, in that case, said:
"The relevant duties actually assigned and undertaken are controlling in this type of situation. * * *" (at p. 42).
The opinion in Mara v. Parsippany-Troy Hills Twp. , 24 N.J. 113 (1957), cited by the defendant, does not say that the delegation of an explicit added duty is beyond the power of a municipal manager. It holds only that he cannot deprive the governing body of its prerogative to establish the office of a department head.
Action by the municipal manager of the kind described in the indictment would be enough to obligate the defendant. It is noted, however, that the governing body also referred the vouchers to him for examination and inspection, according ...