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Donato v. Essex County Board of Chosen Freeholders

Decided: January 3, 1977.

JOHN F. DONATO, M.D., PLAINTIFF-APPELLANT,
v.
ESSEX COUNTY BOARD OF CHOSEN FREEHOLDERS ET AL., DEFENDANTS-RESPONDENTS



Halpern, Botter and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.

Kolovsky

[146 NJSuper Page 41] Plaintiff appeals from the dismissal, after argument, of the complaint filed by him to set aside a salary resolution finally adopted by the Essex County

Board of Chosen Freeholders (Board) on December 31, 1975 following a public hearing. The hearing was held pursuant to the terms of the prior resolution of December 18, 1975 setting forth the proposed salary increases and directing that notice of the public hearing be published. The notice was published in the Newark Star-Ledger on December 24, 1975.

The salary resolution, effective January 1, 1976, fixed the salary of the county supervisor at $18,000 and the salaries of the Board members at $15,000 a year, with its director receiving an additional $500 a year.

Plaintiff contends that the salary resolution should be declared void because, allegedly, the procedures set forth in N.J.S.A. 40:20-72, as amended by L. 1974, c. 156, had not been complied with.

At the outset it should be noted that there is no basis at all for so much of plaintiff's challenge as involves the salary of the county supervisor. N.J.S.A. 40:20-72 deals only with salaries of members of boards of chosen freeholders and their directors. It has no relevancy to the office of county supervisor, N.J.S.A. 40A:9-36, whose salary is fixed by the Board pursuant to N.J.S.A. 40A:9-10.

Prior to its amendment by L. 1974, c. 156, N.J.S.A. 40:20-72 (as last amended by L. 1970, c. 61) did not contain any provisions governing the procedures for the adoption of salary resolutions. It merely specified the permissible minimum and maximum salaries in various classes of counties and provided for the fixing of a salary within those limits by resolutions specifying the date when the salaries were to take effect.

However, the procedures to be followed in case of resolutions adopted pursuant to N.J.S.A. 40:20-72, N.J.S.A. 40:20-73 or N.J.S.A. 40:20-74 were set forth in another statute, to which neither party has referred. N.J.S.A. 40:20-74.1 to N.J.S.A. 40:20-74.5 provided for introduction and a first reading of the resolution, and for publication thereof and of notice of the time and place when it would be considered for final passage, at least once in two

newspapers, the publication to be at least one week prior to the time when it would be considered for final passage. Further, it provided that at that time there should be a public hearing, with final passage of the resolution by the vote of a majority of all the members of the Board, to be at least ten days after the first reading. Finally, it called for at least one publication of the resolution after final passage.

The provisions of N.J.S.A. 40:20-74.1 to 40:20-74.5 no longer control the procedures for adoption of a salary resolution pursuant to N.J.S.A. 40:20-72 since the 1974 amendment to that section incorporated procedural provisions therein. N.J.S.A. 40:20-72 now provides, in pertinent part:

The salaries of the members of the boards of chosen freeholders * * * shall be fixed by the respective boards by resolution as follows:

a. The procedure for introduction, publication, hearing and adoption of said resolution shall be the same as the procedure established by N.J.S. 40A:4-4 for ...


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