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Cabarle v. Governing Body of Township of Pemberton

Decided: February 26, 1979.


Haines, J.s.c.


[167 NJSuper Page 132] Defendant governing body is the duly elected township committee, having five members, of the Township of Pemberton, Burlington County. An ordinance creating the office of township administrator was adopted by this body in December 1969 and reenacted in April 1973. Plaintiff Felix Cabarle was appointed to this position on April 21, 1978. On February 5, 1979, by a vote of three in favor and two opposed, defendant removed plaintiff from office. Simultaneously, Charles Balczun, an additional defendant, was appointed interim township administrator.

Plaintiff asserts that his dismissal was not accomplished in accordance with the provisions of the enabling legislation, which permits municipalities to establish the position of municipal administrator. Consequently, he seeks to reclaim that office. Defendant asserts that all of its actions are in compliance with the enabling act. Resolution of this controversy raises novel questions concerning the proper interpretation of the enabling legislation.

N.J.S.A. 40A:9-136 empowers any municipality to enact an ordinance creating the position of municipal administrator. If a municipality adopts the municipal administrator option, N.J.S.A. 40A:9-137, provides that the mayor or other chief executive officer shall appoint an individual to hold such office with the advice and consent of the governing body. This section also states that "[t]he term of office of the municipal administrator shall be at the pleasure of the governing body." The procedure for removing an administrator is set forth in N.J.S.A. 40A:9-138. A resolution of removal must have the support of two-thirds of the governing body and takes effect three months after passage, or, if three months additional salary is paid, may then take effect immediately.

Defendant argues that in evaluating the propriety of its action a distinction needs to be drawn between the term of office of a municipal administrator and the township committee's power to remove a municipal administrator. The five members who compose the township committee of Pemberton Township serve staggered three-year terms. This scheme requires some members to stand for election each year. Defendant points out that the committee reorganizes annually, see N.J.S.A. 40:45A-1, and that Andrews v. Lamb , 136 N.J.L. 548 (Sup. Ct. 1948), held that a township committee governed by N.J.S.A. 40:146-2, as here, does not constitute a continuous body. See Gulnac v. Bergen , 74 N.J.L. 543 (E. & A. 1906). Therefore, defendant argues that the removal portions of the statute are not pertinent because it is the power of each governing body to

appoint its own municipal administrator and not the power to remove him which is in issue. Accordingly, it is suggested that since the incoming township committee was merely exercising its power of appointment in making Charles Balczum interim township administrator, the removal provisions of the enabling legislation have not been transgressed. This analysis proceeds on the assumption that the Legislature only delegates to subservient bodies one of two types of appointive power.

Upon the one hand is the power to appoint an individual for a fixed term which may extend beyond the life of the appointing body. An individual appointed to a post for such a term may be removed prior to the term's expiration only for cause. See Nolan v. Witkowski , 32 N.J. 426, 427-28 (1960); Clay v. Browne , 96 N.J.L. 303 (Sup. Ct. 1921), aff'd 97 N.J.L. 315 (E. & A. 1922); Rosetty v. Hamilton Tp. Comm. , 82 N.J. Super. 340, 350-52 (Law Div. 1964), aff'd 96 N.J. Super. 66 (App. Div. 1967). Defendant, quite correctly, says that this power of appointment only exists when the Legislature has granted such power to the appointing body, see Larkey v. Bayonne , 123 N.J.L. 134, 136 (Sup. Ct. 1939), aff'd 124 N.J.L. 172 (E. & A. 1940); Bohan v. Weehawken , 65 N.J.L. 490, 493 (Sup. Ct. 1900); Mathis v. Rose , 64 N.J.L. 45 (Sup. Ct. 1899), aff'd 64 N.J.L. 726 (E. & A. 1900), and that the power to appoint for a fixed term does not exist when the appointee is to serve at the pleasure of the appointing body, see Murphy v. Hudson Cty. Freeholders , 92 N.J.L. 244, 246 (E. & A. 1918).

On the other hand is the power to appoint an individual to a position the term of which is limited to the duration of the appointing body's existence. It is this power only that defendant claims is authorized by the enabling act here. This type of appointive power is illustrated in a series of cases, typified by Burgan v. Civil Service Comm'n , 84 N.J.L. 219 (Sup. Ct. 1913). See, e.g., Talty v. Hoboken Bd. of Ed. , 10 N.J. 69 (1952); Young v. Stafford , 86 N.J.L. 422

(Sup. Ct. 1914), aff'd 87 N.J.L. 726 (E. & A. 1915); Hayes v. Mobius , 96 N.J.L. 88 (Sup. Ct. 1921); Skladzien v. Bayonne Bd. of Ed. , 12 N.J. Misc. 602 (Sup. Ct. 1934), aff'd 115 N.J.L. 203 (E. & A. 1935). In all of these cases, save one, the precise wording of the statute authorizing the appointment was of determinative importance. For example, in Skladzien v. Bayonne Bd. of Ed., supra , the statutory language was, "every board of education shall employ * * * a medical inspector * * *." The thrust of the reasoning employed in these cases is aptly summarized in Young v. Stafford's discussion of Burgan:

This case does not, as has been argued to us, lay down the broad rule that all appointments are limited to the life of the body or officer who makes the appointment. Indeed, such argument loses sight of the phraseology of the statute that was construed in the Burgan case, viz., "[ e ] ach board shall upon organization * * * have power to employ a secretary," and so forth, which is the same statute that is now before us, from the language of which it is perfectly clear that what each board upon its organization has the power to do every board has the power to do, and that if every board upon its organization has the power to employ a secretary, no previously organized board has the power to employ one for it; hence, by the language of the act the employment of a secretary is necessarily limited to the organized life of the board that appointed him. [86 N.J.L. at 423]

The analogous language in the enabling legislation authorizing the creation of a municipal administrator states, "Appointment to the office of municipal administrator shall be made by the mayor or chief executive officer of the municipality with the advice and consent of the governing body." N.J.S.A. 40A:9-137. The wording of this provision is ...

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