This matter is before the Court on plaintiff's motion for summary judgment. The complaint is for a declaratory judgment whether plaintiff is authorized to pay for legal services incurred by defendants arising out of an indictment.
Defendant Loeb was at all relevant times and still is a committeeman of Manalapan; defendant Brandt was at the time of the alleged criminal acts the mayor of the township, and defendant Sweitzer was at the time of the alleged criminal acts the township business administrator.
On or about September 12, 1972 the grand jury in Monmouth County handed up an indictment which charged Loeb with corruptly using a telephone credit card for personal calls and incurring an expense in excess of $200 which was paid from township funds. Brandt was charged with having knowledge of the improper use of the credit card and failing to take the necessary steps to see that the township was reimbursed for the amount of the calls. Sweitzer was similarly charged.
The indictment was tried in May 1972. It was dismissed as against Brandt and Sweitzer. A jury found Loeb not guilty.
Plaintiff seeks a declaratory judgment whether N.J.S.A. 40:148-1 et seq., or N.J.S.A. 40:48-7 empowers plaintiff to pay the legal fees incurred by defendants in defense of the indictment.
N.J.S.A. 40:148-1 and N.J.S.A. 40:48-7 are general statutes authorizing the raising of money by taxation for proper municipal purposes. There is no statutory authority for the indemnification of municipal officers for the costs of defense of a criminal action charging what amounts to official misconduct.
In seeking authorization to make the payments, plaintiff relies upon Cobb v. City of Cape May, 113 N.J. Super. 598
(Law Div. 1971). That case, however, is clearly distinguishable. The basis of the liability for counsel fees was a libel action brought against the mayor. The court found that the statements made by the mayor forming the basis of the libel action were made by him as a representative of the city and that his action which was confirmed by the action of the city council was incident not only to the powers of the mayor alone but also of the city council.
Here under no circumstances can it be said that the acts charged against defendants in the indictment were for the benefit of the municipality.
56 Am. Jur. 2 d, Municipal Corporations, Etc., § 208, states in part: "Thus, a municipality has no power to reimburse an official for his expenses incurred in defending himself from charges of official misconduct." [p. 266]
In 64 C.J.S., Municipal Corporations, § 1837, it is stated: "A municipality may not pay, nor can the legislature authorize it to pay, the expenses incurred by a public officer in defending ...