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O''Connor v. City of Union City

Decided: December 6, 1971.


Larner, A.j.s.c.


This is an action in lieu of prerogative writs brought by plaintiff as a citizen and taxpayer of the City of Union City challenging the validity of a resolution adopted by the board of commissioners wherein they designated Libero D. Marotta as "Special Counsel to the City of Union City for all matters pertaining to bond sales." The matter came before the court on the return day of an order to show cause why the resolution should not be set aside as contrary to law and upon the application for preliminary restraints pending final hearing.

During the argument on the return date it became apparent that there are two issues to be determined in the litigation: (1) the validity of the resolution and the accompanying appointment of Marotta as special bond counsel, and (2) the reasonableness and propriety of the bill submitted by him in connection with the issuance of school

bonds on June 1, 1971. Issue (1) is a legal one which can be determined in a summary manner at this time, as attested to by the stipulation of counsel. Issue (2) is a factual one requiring a plenary hearing.

It is plaintiff's contention that the appointment of Marotta by the board of commissioners in the manner expressed in the resolution creates a "position" which can only be brought into valid existence by the adoption of an ordinance with all its legal formalities and not by a mere resolution. Defendants, to the contrary, assert that the designation of Marotta as bond counsel does not create an "office" or "position" but merely names him as an employee with the result that the resolution suffices for validity.

It is well settled that a municipal "office" or "position," if not expressly provided for by statute, can be created only by ordinance. N.J.S.A. 40:48-1; Jersey City v. Department of Civil Service , 7 N.J. 509, 524 (1951); Handlon v. Belleville , 4 N.J. 99, 108 (1950); Wagner v. Lodi , 56 N.J. Super. 204, 206 (App. Div. 1959); Orange v. Goldberg , 137 N.J.L. 73, 75-76 (Sup. Ct. 1948); Serritella v. Water Commission, Garfield , 128 N.J.L. 259, 263 (Sup. Ct. 1942); Toomey v. McCaffrey , 116 N.J.L. 364, 366 (Sup. Ct. 1936).

The underlying rationale for this requirement is that the creation of a new office or position, involving as it does an additional financial burden for the public, should be preceded by the public notice and deliberation attendant upon the passage of an ordinance. See Kovalycsik v. Garfield , 58 N.J. Super. 229, 234 (App. Div. 1959); Orange v. Goldberg, supra; Davaillon v. Elizabeth , 121 N.J.L. 380, 381 (Sup. Ct. 1938).

Courts in the past have drawn distinctions in definition and consequences between an "office," a "position" and an "employment." Generally, it has been held that an "office" involves employment which is governmental in character and duties which are certain and permanent; that a "position" is analogous to an office in that the duties are also permanent

and certain, but differs therefrom in that the duties may be nongovernmental and not established by law; that "employment" differs from both an office and position in that the duties are neither certain, permanent nor governmental. See Wilentz ex rel. Golat v. Stanger , 129 N.J.L. 606, 614-615 (E. & A. 1943); Newark v. Department of Civil Service , 68 N.J. Super. 416, 429 (App. Div. 1961); Kovalycsik v. Garfield, supra 58 N.J. Super. at 236; Board of Chosen Freeholders of Hudson County v. Brenner , 25 N.J. Super. 557, 562-564 (App. Div. 1953); Fredericks v. Board of Health , 82 N.J.L. 200, 201-202 (Sup. Ct. 1912). The cases have concluded that although the creation of an "office" or "position" requires an ordinance, a mere "employment" may be created by resolution.

In this case the governing body by its resolution sought to invest Marotta with the right to represent the municipality in all public bond matters in perpetuity or until revoked by a subsequent governing body, without specifying the term of his incumbency and without specifying the compensation to be paid to him. In effect, it sought to create an appointment which is hybrid in nature and which does not necessarily fit into the cubbyhole designations of "office," "position" or "employment."

On mature analysis, there should be no need for exact classification within the dichotomy dictated by the cited cases since rigid classification is of little usefulness in deciding the issue at bar. See Glasser, "A New Jersey Municipal Law Mystery: What Is a 'Public Office,'?" 6 Rutgers L. Rev. 503 (1952). It is clear that the appointment herein names Marotta as the attorney on a perpetual and continual basis to handle all bond matters in the municipality, although the ...

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