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Hutt v. Robbins

Decided: December 1, 1967.

STEWART M. HUTT, PLAINTIFF-RESPONDENT,
v.
NORMAN ROBBINS, RALPH P. BARONE AND ISADORE ROSENBLUM, DEFENDANTS-APPELLANTS, AND TOWNSHIP OF WOODBRIDGE, A MUNICIPAL CORPORATION, ADDED DEFENDANT



Gaulkin, Lewis and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.

Kolovsky

Since January 1, 1964 the form of government of the Township of Woodbridge has been "Mayor-council plan F" under the Optional Municipal Charter Law, N.J.S.A. 40:69A-1 et seq. (hereinafter referred to as the "Faulkner Act").

Among the departments created by the township ordinance known as the Administrative Code of Woodbridge is the Department of Law, headed by defendant Robbins as Director of Law. The Code also provides that within that department "there shall be a law officer known as the municipal solicitor." The office is a part-time one, with the incumbent receiving an annual salary fixed by ordinance plus payment on a fee basis for services such as the conduct of litigation and the preparation of contracts. Cf. Koribanics v. Bd. of Educ. of Clifton, 48 N.J. 1, 7 (1966).

On January 3, 1966 Robbins, as Director of Law, appointed plaintiff Hutt to the office of municipal solicitor "effective and beginning January 1, 1966, for the term provided by law."

On April 28, 1967 Robbins, with the written approval of the township's mayor, defendant Barone, served notice upon Hutt terminating his services as municipal solicitor, effective May 1, 1967. On May 1, 1967 Robbins, with the mayor's written approval, appointed defendant Rosenblum as municipal solicitor, "effective immediately and terminating December 31, 1967."

Hutt, asserting that his removal was illegal, instituted this action in lieu of prerogative writs against Robbins, Barone and Rosenblum. The trial court ordered Rosenblum to "cease and desist" from occupying the office of municipal solicitor and directed Hutt's reinstatement to that office. Defendants appeal. At our direction the township has been added as a party to the action so that it may be bound by the decision on appeal.

The basic issues presented concern (1) the validity and (2) the interpretation of the Administrative Code provision that:

"the municipal solicitor * * * shall be appointed by the director in the unclassified service [for a] term of four years, subject to removal as provided by the charter."

Hutt contends that under the charter (Mayor-council plan F) the municipal council had the power to and did fix a four-year term for the office and that the reserved power of "removal as provided by the charter" relates only to removal "for cause."

Defendant Robbins does not dispute that the council may fix the term of the office. But he argues that the Code, in providing that the appointee is "subject to removal as provided by the charter," conforms to the controlling charter section, which allegedly empowers him, with the approval of the mayor, to remove the municipal solicitor at will and without cause.

Defendant Rosenblum does not agree that the council has power to fix the term of office of municipal solicitor. He contends that since department heads may appoint and, with the approval of the mayor, remove subordinate officers and employees, the council is precluded from attaching a term to such subordinate offices and employments.

We turn, therefore, to an analysis of the provisions of the Faulkner Act applicable to municipalities governed by "Mayor-council plan F." These include N.J.S.A. 40:69A-74 to 80 relating specifically to that plan, and the following sections of the act which N.J.S.A. 40:69A-74 ...


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