Pressler, J.c.c., Temporarily Assigned.
The narrow and novel legal question presented by this action in lieu of prerogative writs arises out of a mayor's removal for cause of a Class IV (citizen-at-large) member of a municipal planning board pursuant to the provision of N.J.S.A. 40:55-1.4 which authorizes a member's removal, after hearing, for "inefficiency, neglect of duty, or malfeasance in office."
The factual basis of the controversy, largely undisputed, is made clear by the record of the removal hearing upon which this action was tried. Plaintiff Joseph Golaine a civil engineer, was duly appointed a Class IV member of the nine-member Planning Board of the Borough of Demarest in January 1972 for a six-year term expiring at the end of 1977. There is no question that through March 1974 Golaine was a valuable and diligent member of the board. By reason of his willingness to devote his professional expertise, his contribution to the work of the board was substantial, and his attendance record at both its public and executive-work sessions was near perfect. In the spring of 1974 plaintiff was assigned by his employer as the resident supervisor of an engineering project in Germany for an anticipated six-month period. Accordingly, he wrote to the planning board by letter addressed to its then chairman, advising of this situation and offering to resign, but indicating his preference to be granted a leave of absence so that he might be able to resume his board duties upon his return from Europe. The minutes of the board's next regular public meeting, held on April 10, 1974, record a motion made and apparently unanimously carried that the Board recommend to the mayor and council its adoption of an ordinance, pursuant to the 1970 amendment of N.J.S.A. 40:55-1.4, providing for appointment of two alternate board members. While not expressly so stated, the inference is clear, and it was in fact testified to at the removal hearing, that the board wished to retain plaintiff as a member, but only if his continued office-holding
would not result in its operation for an extended period with one less than its normal complement. Its recommendation of the "alternates" ordinance was, therefore, viewed by it as providing an ideal vehicle for accommodating both these interests. It should also be noted that the then mayor, Rosemary Sheehan, the statutory Class I member of the board, was present at that meeting and apparently concurred in that determination. The mayor and council acceded to the board's recommendation and the minutes of the board's executive session of June 6, 1974 include this notation:
Alternate Member of Board -- Ordinance to be passed on June 17th. Board to recommend to Mayor and Council (copy to Environmental Commission) that Pat Rodriguez become alternate member to fill in for Joe Golaine during his absence. Discussion on second alternate pended [ sic ] to regular meeting. Letter to Joe confirming his leave of absence from Board.
A letter from the planning board to plaintiff, over the signature of its chairman, was in fact dispatched to plaintiff the following day so advising him, and the attendance records of the board for the balance of the year 1974 noted that plaintiff was on leave of absence.
Nothing further occurred until December 1974, some nine months after plaintiff's departure for Europe and some six months after the board's "confirmation" of his request for leave of absence, a period during which it appears one or the other of the alternates acted in his stead. Plaintiff then returned to Demarest to spend the Christmas holidays with his family, his European assignment having not yet been concluded, and he wrote again to the planning board chairman informing her that he expected not to be back permanently until the end of February 1975, in time to resume his seat for the board's March 1975 meeting. His letter further requested that his leave of absence be continued until that time. The board never formally responded to this request. On January 5, 1975 defendant, S. Gerald Cardinale, who had been elected mayor of Demarest the previous November,
assumed that office. Four days later he wrote to plaintiff advising him that unless he resigned by January 20, 1975 he, as mayor, would conduct a hearing on February 3, 1975 for the purpose of removing him pursuant to the statute for neglect of duty. Plaintiff, by letter written from Germany, refused to resign. A hearing was in fact held by defendant in plaintiff's absence as scheduled, and plaintiff was removed by findings dated on February 10, 1975 which noted, among other matters, that
You have been inefficient and neglectful of your duty due to continued absence from the Planning Board from approximately April 1974 through date and proposed future absence pursuant to your letter of December 26, 1974. Therefore you are removed from the Planning Board effective immediately.*fn1
This action was commenced several weeks later by verified complaint and order to show cause, the parties consenting on the return date thereof to the entry of an order directing a new hearing to be held by the mayor in April 1975. In the meantime plaintiff, who did return to Demarest as scheduled, was barred from resuming his seat at the regular March 1975 board meeting. The April hearing was in due course held and plaintiff's removal in effect confirmed. The reasons for the mayor's action, as stated in his written decision, were essentially, first, that plaintiff had not been granted a valid leave of absence; second, that an inability to function in office for an 11-month period was "not a precedent in the Borough's best interest to condone," and third, that he failed to do the "right thing" under the circumstances, namely to resign. The decision concluded with the following statement of findings:
The Borough's orderly conduct of its affairs cannot proceed if proper, deliberate procedures are not practiced. The imagined insult
to an individual, no matter what his past service, no matter what effort he is in a position to expend, no matter what friends, highly placed in Borough government, he may call upon -- cannot be allowed to prevail against the legitimate interest of the people. Mr. Golaine is removed from the Planning Board.
The sole question before the court is whether in view of the undisputed circumstances plaintiff's 11-month nonattendance constitutes a neglect of duty within the statutory intendment. The removal provision of N.J.S.A. 40:55-1.4 has not heretofore been judicially construed, nor has the research of either counsel or the court yielded judicial construction in this or in any other jurisdiction of any like statutory provision applied in like circumstances to an appointed, unpaid member of a like administrative board or body. This controversy must, therefore, be resolved in ...