This is an action in lieu of prerogative writs to invalidate an ordinance increasing the salary of a mayor.
In August 1978 an ordinance was adopted increasing the annual salary of the Mayor of Bayonne from $25,000 to $32,000.
On September 11, 1978 a petition was filed pursuant to N.J.S.A. 40A:9-165 requesting that the question of the salary increase be submitted to the voters at the next general election. Pursuant thereto the proposed increase was submitted at the November 7, 1978 general election and was rejected by the voters.
On February 15, 1979 an initiative petition was filed pursuant to N.J.S.A. 40:69A-184 et seq. requesting an ordinance increasing the annual salary of the mayor from $25,000 to $30,000 in three steps: $26,500 on January 1, 1978, $28,090 on January 1, 1979 and $30,000 on January 1, 1980, and further seeking a referendum in the event an appropriate ordinance was not enacted.
In March 1979 a new ordinance was adopted increasing the salary of the mayor from $25,000 to $30,000 in accordance with the three-steps proposal. Plaintiffs seek to invalidate this latest pay raise, contending it is barred by that provision of N.J.S.A. 40A:9-167 which makes the 1978 referendum vote binding for the following two years, and further, that the ordinance contains an invalid retroactive feature. Plaintiffs are registered voters and taxpayers of the City of Bayonne; their standing to bring this action is not disputed.
Initially it should be noted that the controlling statutes with respect to salary ordinances are N.J.S.A. 40A:9-165 et seq. Lawrence v. Butcher , 130 N.J. Super. 209 (App. Div. 1974). These provisions dealing specifically with salaries
prevail over the general referendum provisions of N.J.S.A. 40:69A-184 et seq. Id. at 212.
N.J.S.A. 40A:9-165 (hereinafter § 165) provides as follows:
The governing body of a municipality, by ordinance, shall fix and determine the salaries, wages or compensation to be paid to the officers and employees of the municipality, including the members of the governing body and the mayor or other chief executive, who by law are entitled to salaries, wages, or compensation. Such salaries, wages or compensation from time to time, by ordinance, may be increased, decreased or altered but no such ordinance shall reduce the salary of any appointed or elected tax assessor or tax collector during the term for which he shall have been appointed or elected and, except with respect to an ordinance or a portion thereof fixing salaries, wages or compensation of elective officials or any managerial executive or confidential employee as defined in section 3 of the New Jersey Employer-Employee Relations Act. P.L. 1941, c. 100 (C. 34:13A-3) as amended, the ordinance shall take effect as provided therein. In municipalities wherein the provisions of Title 11 (Civil Service) of the Revised Statutes are in operation, this section shall be subject thereto.
Where any such ordinance shall provide for increases in salaries, wages or compensation of elective officials or any managerial executive or confidential employee, the ordinance or that portion thereof which provides an increase for such elective or appointive officials, shall become operative in 20 days after the publication thereof, after final passage, unless within said 20 days, a petition, signed by voters of such municipality, equal in number to at least 5% of the registered voters of the municipality, protesting against the passage of such ordinance, be presented to the governing body, in which case such ordinance shall remain inoperative unless and until a proposition for the ratification thereof shall be adopted at an election by a majority of the voters voting on said proposition. The question shall be submitted at the next general election, occurring not less than 40 days from the date of the ...