Schwartz, L., J.d.c., Temporarily Assigned.
This is an action in lieu of prerogative writs brought by the Planning Board of West Milford and its members in their individual capacity, challenging an ordinance adopted by the township council empowering the municipal manager to appoint the attorney for the planning board.
The parties have stipulated that the planning board was duly constituted by virtue of N.J.S.A. 40:55-1.1 et seq. and the ordinances of the township.
Since 1969 the municipality has been governed by the Council-Manager Plan D of the Optional Municipal Charter Law, known as the Faulkner Act, under Article 12 of N.J.S.A. 40:69A-109 et seq. , implemented by an ordinance adopted pursuant thereto establishing an administrative code.
Although the code did not provide for the office of attorney for the planning board, nor did any other ordinance so provide, nevertheless the board appointed its own counsel and compensated him from funds appropriated for such purpose by the governing body.
On October 11, 1972 the planning board appointed Terence P. Corcoran as its attorney and notified the council of such appointment. The board was advised by the council on
October 16, 1972 that such appointment was without authority.
On November 3, 1972 the township council adopted an ordinance as an amendment to the administrative code creating the office of attorney for the planning board, delineating the duties of the office and providing that "he shall be appointed by the Township Manager and shall hold office during his pleasure."
Before reviewing the issue of whether the authority to appoint the attorney for the board resides in or may be delegated to the township manager in accordance with N.J.S.A. 40:69A-109 et seq. , or whether such power resides in the planning board itself, it would be well to consider the necessity of adopting an ordinance for this purpose in the first place.
N.J.S.A. 40:55-1.5 (L. 1953, c. 433, § 5) provides:
The planning board shall elect a chairman from the members of Class IV and create and fill such other offices as it may determine. It may employ experts and a staff, and pay for their services and for such other expenses as may be necessary and proper, not exceeding in all, exclusive of gifts, the amount appropriated by the governing body for its use. [Emphasis added]
The object of the statute was similar to N.J.S.A. 40:55-36.2 in which, by L. 1955, c. 126, § 2, the board adjustment was authorized to "employ" an attorney, and by L. 1965, c. 215, § 2 which authorized it to "appoint" an attorney.
The use in the statute of the terms "create," "fill such other offices" and "employ experts and a staff" does not connote mandatory direction in the legislative intention. The office of planning board attorney is not legislative in origin, as is the office of tax assessor, for instance, which does not depend upon a municipal ordinance for its creation. See Ream v. Kuhlman , 112 N.J. Super. 175, 191 (App. Div. 1970).
In Wagner v. Lodi , 56 N.J. Super. 204 (App. Div. 1959), the court held that even though the statute read
"The municipal council shall appoint * * * an attorney" (emphasis added), this language did not create the office of municipal attorney. See also Jersey City v. Dept. of Civil Service , 7 N.J. 509, 522 (1951). Cf. Talty v. Board of Education, Hoboken 10 N.J. 69, 71 (1952). The court in Wagner concluded that since the office of borough attorney had not been created by ordinance, "such office is non-existent in the Borough of Lodi, and there is no office to which respondent may claim tenure."
Unless when required by statute, "we do not perceive in these provisions a legislative direction for the appointment * * * even though the post be deemed unnecessary. The need is a matter for the discretion of the local authority. We find in the cited act no suggestion of a legislative determination of the need without regard to local conditions." Handlon v. Belleville , 4 N.J. 99, 108 (1950).
Tomko v. Vissers , 21 N.J. 226, 237-238 (1956), was not an expression by the Supreme Court that a board of adjustment had the power to create the office of attorney. The decision merely illustrated that the board had the "statutory equipment" to discharge in a proper manner its responsibility to pass upon applications for variances when it stated that the board "may employ an attorney and clerical personnel to fulfill its function."
The language in the Planning Act had a similar legal effect with respect to the powers of the planning board.
The particular use of the words "create * * * offices" in the statute should not be interpreted as vesting in the planning board the self-executing and exclusive power to establish new offices.
The Home Rule Act (N.J.S.A. 40:48-1) provides in part:
The governing body of every municipality may make, amend, repeal and enforce ordinances to:
3. Prescribe and define, except as otherwise provided by law, the duties and terms of office or employment, of all officers and employees;
and to provide for the employment and compensation of such officials and employees, in addition to those provided for by statute, as may be deemed necessary for the efficient conduct of the affairs of the municipality; [Emphasis added]
In Nolan v. Witkowski , 56 N.J. Super. 480 (App. Div. 1959), the court cited with approval the reference to N.J.S.A. 40:48-1 in Davaillon v. Elizabeth , 121 N.J.L. 380, 381 (Sup. Ct. 1938):
The legislature has decreed that this delegated power to create municipal offices and positions, and to prescribe the compensation and the duties appertaining thereto, involving as it does an increase of the financial burden of local government, shall be exercised only by ordinance. [56 N.J. Super. at 495]
Except for statutory officers, it is established that the adoption of an ordinance creating an office is a sine qua non to the appointment of an officer by the governing body. Handlon v. Belleville, Jersey City v. Dept. of Civil Service, Wagner v. Lodi , all supra. The planning board, being a quasi -judicial or administrative body, lacks the authority to adopt ordinances. Under N.J.S.A. 40:55-1.5 it would be ...