This matter is before the court on a motion for summary judgment on behalf of Thomas O. Kelly, plaintiff-intervenor, a taxpayer and resident of the Township of Hazlet. The complaint in lieu of prerogative writ contests the validity of defendant Joseph A. Morales' appointment as a member of the Hazlet Township Sewerage Authority.
On December 21, 1971 the Township Committee of Hazlet by a 3-2 vote appointed Morales to membership on the Sewerage Authority for the term of December 21, 1971 to January 31, 1975. At the time Morales was a participating
member of the township committee and voted in the affirmative for his own appointment. In the November 1971 election he had been defeated for re-election to the township committee. A member of the Sewerage Authority receives a salary of $1500 a year.
On January 3, 1972 plaintiff township committee commenced this action in lieu of prerogative writ seeking an order declaring the invalidity of defendant Morales' appointment; declaring a vacancy on the Sewerage Authority; restraining defendant Morales from performing any acts as a member of the Sewerage Authority; and restraining defendant Hazlet Township Sewerage Authority from taking any action for which a majority vote of the membership of the Sewerage Authority is necessary where the majority vote in favor would not exist but for the affirmative vote of defendant Morales.
An earlier motion for summary judgment was made by plaintiff township. That motion was denied on the ground, among others, of doubt of the standing of the township committee to institute the action. The earlier denial of the township's motion is not res judicata so far as the motion brought on behalf of Kelly which is now before the court.
N.J.S.A. 40:14A-1 et seq. provides for municipal and county sewerage authorities. N.J.S.A. 40:14A-5 provides in part:
(c) * * * neither the holding of any office or employment in the government of any county or municipality or under any law of the State nor the owning of any property within the State shall be deemed a disqualification for membership in or employment by a sewerage authority, and members of the governing body of a local unit may be appointed by such governing body and may serve as members of a sewerage authority. * * *
While N.J.S.A. 40:14A-5(c) allows a member of a governing body to serve as a member of a sewerage authority (see N.J.S.A. 40:46-5, prohibiting generally such dual appointments, and O'Keefe v. Dunn , 89 N.J. Super. 383 (Law Div. 1965), aff'd o.b. 47 N.J. 210 (1966), holding
that a statute allowing membership on a governing body and on a housing authority was an exception to the general provisions of N.J.S.A. 40:46-5), plaintiff argues that N.J.S.A. 40:14A-5(c) does not permit a member of a governing body to vote for himself for such appointment.
A public officer has the duty of serving the public with undivided loyalty, uninfluenced in his official actions by any private interest or motive whatsoever. He holds a position of public trust. He is under an inescapable obligation to serve the public with the highest fidelity, good faith and integrity. The law tolerates no mingling of self-interest; it demands exclusive loyalty. Driscoll v. Burlington-Bristol Bridge Co. , 8 N.J. 433, 474-475 (1952), cert. den. Burlington County Bridge Commission v. Driscoll , 344 U.S. 838, 73 S. Ct. 25, 97 L. Ed. 652 (1952); Newton v. ...