Matthews, Morton I. Greenberg and Ashbey. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
Plaintiff, the county executive of Mercer County, brought this action in lieu of a prerogative writ in the Superior Court, Law Division, on March 6, 1980. Named as defendants were the Mercer County Improvement Authority, the Mercer County Board of Freeholders, the individual members of the Authority, Richard Maiorino, the executive director of the Authority, and Marion Connell, the executive secretary-administrative officer of the Authority. Plaintiff alleged that the Authority membership had been expanded by the freeholders from five to nine members, that two freeholders had been appointed to the Authority and that the Authority had proposed to enter into five-year employment contracts with Maiorino and Connell. Plaintiff asserted that all of these acts were unlawful. He sought judgment declaring the county administrative code provision providing for expansion of the authority to be unlawful, removal of the nine members of the Authority and an injunction prohibiting the Authority from entering into the proposed contracts with Maiorino and Connell.
Defendants, other than the freeholders, filed a joint answer on March 26, 1980. They denied that any of their actions were unlawful. They also set forth various affirmative defenses, which included procedural objections. The record does not reveal whether a formal answer was filed on behalf of the freeholders. A hearing on the matter was held on April 21, 1980 at which all parties were represented by counsel. The court did not take testimony because the issues were essentially legal rather than factual. The court did hear extensive oral argument from counsel and affidavits were submitted. At the conclusion of the hearing the judge overruled defendants' procedural objections. On July 11, 1980 the judge issued a written opinion on the substantive issues. He found that the Authority had been unlawfully expanded from five to nine members and that the contracts with Maiorino and Connell, which were entered into after the action had been started, were unlawful. Accordingly, he ordered that the Authority be reconstituted
with five members. The employment contracts were invalidated. A final judgment was entered on July 22, 1980.
Three separate appeals have been taken from the judgment. The two employees and several members of the nine-member authority filed one appeal. Separate appeals were filed by the board of freeholders and the Authority itself. The appeals of the employees, members of the Authority and the freeholders were consolidated by our order of September 19, 1980. The appeal by the authority was placed on an inactive status by our order of November 21, 1980 pending disposition of the first two appeals.*fn1
The factual background to this case is not complicated. Mercer County has a county executive form of government under the Optional County Charter Law. See N.J.S.A. 40:41A-37; Mercer Cty. Community College Trustees v. Sypek , 160 N.J. Super. 452 (App.Div.), certif. den. 78 N.J. 327 (1978). It had, at the time of the adoption of this form of government, a county improvement authority which still continues in existence. See N.J.S.A. 40:37A-44 et seq. This authority originally consisted of five members appointed by the freeholders. See N.J.S.A. 40:37A-48. Each appointment was for five years with one term expiring annually. Since the adoption of the county executive form of government, the executive has appointed the members of the authority. N.J.S.A. 40:41A-37(b). Upon adoption of the county executive government the county passed an administrative code in May 1976. This code included the following provision with respect to the improvement authority (section 9.7):
(a) Membership: The Improvement Authority shall consist of nine residents of the County, including two Freeholders.
The seven citizen members shall serve for three years each from May 1 and until the appointment and qualification of their successors. The first appointments made under this section shall designate three persons to serve for one year each, two to serve for two years and two to serve for three years. Initial members shall serve from the time of their appointment, but the term of office shall be deemed to commence on May 1.
The two Freeholders shall be appointed to one-year terms and take office in January of each year.
(b) Vacancies: Any vacancy shall be filled in the manner of the original appointment for the remainder of the unexpired term.
(c) Organization and Quorum: Within ten days after the first appointment and thereafter during the month of June, the authority shall elect ...