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Nero v. Board of Chosen Freeholders of Camden County

Decided: October 7, 1976.

JOHN NERO, THOMAS GIANGIULIO AND ANTHONY LO PRESTI, PLAINTIFFS-APPELLANTS,
v.
BOARD OF CHOSEN FREEHOLDERS OF CAMDEN COUNTY, DEFENDANTS-RESPONDENTS



Bischoff, Morgan and Collester. The opinion of the court was delivered by Bischoff, J.A.D.

Bischoff

Plaintiffs, members of the Camden County Municipal Utilities Authority (CCMUA) filed an amended complaint in which they sought a judgment restraining and enjoining defendant Board of Chosen Freeholders of Camden County (board) from proceeding to conduct hearings on charges that plaintiffs were guilty of inefficiency, neglect of duty and misconduct in office.

Plaintiffs' motion for summary judgment was denied. They filed a notice of motion for leave to appeal from that denial seeking, contemporaneously therewith, a restraint against the conduct of the hearings pending appeal. A temporary restraint was granted. Oral argument was held on the motion and on the merits of the appeal. The parties were given leave to file supplemental briefs.

We now grant leave to appeal and, since the issue presented involves a matter of public importance, requiring prompt resolution, we elect to consider the merits of the appeal and decide it at this time. R. 2:11-2.

Defendant board, by resolution and pursuant to the authority conferred by statute (N.J.S.A. 40:14B-4), created the CCMUA, and the three plaintiffs were appointed members of the Authority. The board, by resolution adopted March 16, 1976, declared itself "a committee of the whole for the purpose of investigating the management, efficiency, neglect of duty or misconduct in office, individually and collectively, of the Commissioners of the Camden County Municipal Utilities Authority, pursuant to R.S. 40:20-82 [sic], to determine whether or not one or more of the aforesaid Commissioners should be charged with inefficiency, neglect of duty or misconduct in office and afforded a hearing thereon pursuant to R.S. 40:14B-16." Following a series of meetings the board adopted three separate resolutions on July 8, 1976, each containing the following recital:

* * *

WHEREAS, pursuant to said resolution the Board heard testimony, received exhibits, received a legal opinion, and has considered all of the aforesaid; and

WHEREAS, it appears that there is probable cause to believe that certain Commissioners have been guilty of inefficiency, neglect of duty or misconduct in office and are consequently subject to removal from office under the provisions of R.S. 40:14B-16. * * *

The three resolutions then adopted charged all three plaintiffs individually with inefficiency, neglect of duty and misconduct in office, as was more specifically set forth in charges annexed to each resolution and incorporated therein.

Hearings on the charges were scheduled to commence before the board on September 20, 1976, and have been stayed until the further order of this court.

The amended complaint filed by plaintiffs initially attacks the proceedings of the board that preceded adoption of the three resolutions preferring charges against them on the following grounds:

(1) Plaintiffs were subpoenaed to appear before the board (acting as a committee of the whole), compelled to testify and denied the right to cross-examine witnesses;

(2) the board adopted the resolutions preferring charges against plaintiffs without first making findings of fact and conclusions of law of its own but, rather, improperly relied upon a legal opinion prepared and submitted by counsel, which constituted an illegal delegation of authority; and

(3) Not all board members were present at all the hearings and those not in attendance at all the meetings could not properly vote to prefer the charges against plaintiffs.

We find these contentions to be without merit. Counsel does not point to any statutory requirement for the appointment of a committee to investigate charges, to prepare a report or to make findings of fact and conclusions of law. Nor are we aware of any condition precedent to the preferring of charges against a member of the CCMUA by the board pursuant to N.J.S.A. 40:14B-16.

Plaintiffs further charge, in the amended complaint and in a proffer of proof made in open court on the return day of the ...


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