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Bowen v. Mayor and Council

Decided: May 10, 1963.

RICHARD J. BOWEN, PLAINTIFF,
v.
MAYOR AND COUNCIL OF THE CITY OF LONG BRANCH, DEFENDANTS



Mariano, J.s.c.

Mariano

[79 NJSuper Page 180] This is an action in lieu of prerogative writs to review the validity of the proceedings taken by the City Council of the City of Long Branch in removing the

plaintiff as city manager pursuant to the provisions of N.J.S.A. 40:69A-93.

On the following agreed facts the parties cross-motioned for summary judgment:

During the times hereinafter mentioned the City of Long Branch was and is governed by Council-Manager Plan D of the Optional Municipal Charter Law known as the Faulkner Act. N.J.S.A. 40:69A-1 et seq. Pursuant to the said form of government the city did, on October 23, 1961, adopt an ordinance known as "Administrative Code."

On July 1, 1961 Councilman Thomas L. McClintock was unanimously elected mayor, and Councilman Samuel A. Marks was designated as deputy mayor.

On February 7, 1963 Deputy Mayor Marks, in the absence of Mayor McClintock, called a special meeting of the city council to be held on Saturday, February 9, 1963, at noon, "for the purpose of introducing two resolutions -- one calling for a vote of confidence for the City Manager by the Council; or if in the event he does not receive this vote of confidence, a second resolution relieving Mr. Bowen of his duties as City Manager." Copies of the said notice were distributed to all members of the city council, and notice of such special meeting was publicized in the Long Branch Daily Record at least 24 hours in advance of the date fixed for the special meeting.

At the said special meeting on February 9, 1963, Mayor McClintock and the other eight members of city council were in attendance. The meeting commenced at 12:05 P.M. with the mayor presiding, and no one objected, either orally or in writing, concerning the notice of the calling of the special meeting by the deputy mayor. The resolution calling for a vote of confidence in the manner in which plaintiff was performing his duties as city manager failed to pass. Immediately thereafter a preliminary resolution of removal was offered for adoption and seconded, and after discussion of the merits by various members of the city council and the plaintiff himself, the following resolution was adopted by a vote of 6 to 3:

"By Councilman George:

WHEREAS, Richard J. Bowen, City Manager of the City of Long Branch, has failed to receive a vote of confidence from the City Council in the manner in which he is performing the duties of his office and in his administration of City affairs; and

WHEREAS, the majority of said City Council feels that the general interest and welfare of the City would be best served by relieving Richard J. Bowen of his duties as City Manager; and

WHEREAS, N.J.S.A. 40:69A-93 (Section 9-13 of the Faulkner Act) provides that the municipal manager shall hold office for an indefinite term and may be removed by a majority vote of the Council;

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Long Branch that Richard J. Bowen be, and he hereby is, removed from the office of City Manager of the City of Long Branch, effective thirty (30) days after the date of adoption of this resolution, for the following reasons:

1. His involvement in controversies which have caused adverse publicity to the City of Long Branch, thereby causing embarrassment to the City Council and to the entire City.

2. His failure to work harmoniously with the City Council as a whole in the carrying out of the legislative and executive programs of the City, thereby preventing the city government from functioning in an orderly and efficient manner; and

BE IT FURTHER RESOLVED that the said Richard J. Bowen be, and he hereby is, immediately suspended from the performance of any further duties as City Manager of the City of Long Branch; and

BE IT FURTHER RESOLVED that the Acting City Treasurer be, and she hereby is, authorized and directed to pay to the said Richard J. Bowen forthwith any unpaid balance of his salary together with his salary for the next three calendar months following the date of adoption of this resolution as provided by N.J.S.A. 40:69A-93."

At no time, commencing with the introduction of the preliminary resolution of removal to the time of its final passage, was any objection or protest, written or oral, lodged by anyone in attendance at the said meeting that the subject matter of the said resolution was not denominated in the notice of the call for the meeting.

Subsequently plaintiff, pursuant to N.J.S.A. 40:69A-3, made a timely written request for a public hearing, which was duly fixed by city council for March 9, 1963, at the Long Branch Junior High School. Prior to the commencement of

the hearing city council adopted a resolution establishing certain "Rules of Procedure" for the conduct of the hearing. Immediately thereafter the hearing was turned over to plaintiff and his attorney to afford them an opportunity to present any matter desired by them on plaintiff's behalf.

In accordance with rule 2 of the rules of procedure the city council did not cause any evidence to be presented by anyone to support the reasons stated in the preliminary resolution of removal. On the other hand, in accordance with rule 3 plaintiff and his attorney were given a full and unlimited opportunity to present any matters they wished before city council. Plaintiff availed himself of this opportunity at various sessions of the hearing held on March 9, 15, 16 and 19, after which summation thereof was made by his counsel. Thereafter, city council deferred final vote on plaintiff's removal as city manager until March 26, 1963, at 7:30 P.M. in order that it might have ample time to give consideration to all matters presented by the plaintiff.

On March 26, 1963, the following resolution of removal was adopted by a vote of 6 to 3:

"By Councilman George:

WHEREAS, the City Council of the City of Long Branch, at a special meeting thereof held on the 9th day of February, 1963, duly adopted a Preliminary Resolution of Removal of Richard J. Bowen as City Manager of the City of Long Branch; and

WHEREAS, pursuant to the provisions of N.J.S.A. 40:69A-93, the said Richard J. Bowen requested a public hearing on his removal as City Manager; and

WHEREAS, such public hearing has been duly held and the City Council has fully considered the matters brought before it; and

WHEREAS, the majority of the City Council is of the opinion that the preliminary removal of said Richard J. Bowen as ...


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