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February 13, 1984

Re: Benito J. Mele
John T. Fahy, Frank G. Priore, and the Township of Parsippany-Troy Hills

The opinion of the court was delivered by: STERN

STERN, District Judge


 This case arises out of plaintiff's allegation that his right to due process was violated as a result of his termination from his position as Police Director of the Township of Parsippany-Troy Hills. Named as defendants are John T. Fahy, the former mayor of the Township, who had appointed plaintiff to the position after signing a two-year contract with him; Frank D. Priore, Fahy's successor as mayor, who dismissed plaintiff; and the Township itself.

 Defendants now move for summary judgment on the grounds that neither the Constitution nor the applicable statute, N.J. Stat. Ann. 40:69A-43, provides plaintiff with a cognizable liberty or property interest in the job; and that, by the terms of the cited statute, the contract between plaintiff and the former mayor was ultra vires and thus could not provide plaintiff with an entitlement to continuing employment. Since we find that plaintiff had no statutory right to a hearing prior to termination in these circumstances; that the terms of his contract were superseded by the operation of the statute; and that his position was one from which he could permissibly be terminated for "political" reasons by the new mayor, we will grant defendants' motion for summary judgment.


 In the spring of 1980, defendant Fahy, at that time the Mayor of the defendant Township, entered into a contract whereby plaintiff was hired as the Police Director of Parsippany-Troy Hills for a period of two years, extending from May 1, 1980 to May 1, 1982.*The parties negotiated the terms of the proposed contract over a period of several weeks. The contract which defendant Fahy originally proposed to plaintiff provided that the term of office would extend from May 1, 1980 to December 31, 1981, which marked the last day of Fahy's term as mayor. In its final form, however, the contract stated a term of office extending from May 1, 1980 to May 1, 1982. In addition, it provided that, "The Director shall, in fulfilling his duties, be solely responsible to the Mayor."

 This contract was signed by the plaintiff, defendant Mayor Fahy, and the township clerk on March 31, 1980. Minutes of a township council meeting held on April 3, 1980 indicate that at that time the council discussed the issue of hiring plaintiff for a contractual two-year term, with doubts raised as to the contract's validity (Prongay Aff., Sept. 16, 1983, Exh. J; Township Council Minutes, April 3, 1980). However, the council never voted to approve the contract itself. (Plaintiff's Second Interrog's., Q. 8).

 On April 22, 1980, the council did vote to confirm the appointment of Mele as Police Director. (Stip. Facts, Aug. 29, 1983, para. 12). In so doing the council acted pursuant to N.J. Stat. Ann. 40:69A-43, which provides:

(a) The municipality shall have a department of administration and such other departments, not exceeding nine in number, as council may establish by ordinance. All of the administrative functions, powers and duties of the municipality, other than those vested in the office of the municipal clerk, shall be allocated and assigned among and within such departments.
(b) Each department shall be headed by a director, who shall be appointed by the mayor with the advice and consent of the council. Each department head shall serve during the term of office of the mayor appointing him, and until the appointment and qualification of a successor.
(c) The mayor may in his discretion remove any department head after notice and an opportunity to be heard. Prior to removing a department head the mayor shall first file written notice of his intention with the council, and such removal shall become effective on the twentieth day after the filing of such notice unless the council shall prior thereto have adopted a resolution by a two-thirds vote of the whole number of the council, disapproving the removal.

 Plaintiff Mele served as Police Director starting in May 1980. On November 3, 1981, incumbent mayor Fahy was defeated in his bid for re-election by defendant Frank B. Priore, who remains mayor at the time of this lawsuit.

 On the day following his election, mayor-elect Priore sent the following letter to plaintiff:

Dear Director Mele:
As you are undoubtedly aware, I am now the Mayor Elect of the Township of Parsippany-Troy Hills and scheduled to assume that position on January 1, 1982.
Please accept this correspondence as advice of my intention to abolish the position of police director upon taking office. Please be further advised that under the authority of N.J. Stat. Ann. 40:69A-43 I intend to terminate your position as a department head on January 1, 1982.

 It is not disputed that plaintiff did not receive the opportunity for a hearing on the issue of his termination. On January 1, 1982, the duties of Police Director were assumed by Police Chief Elwood Fox, whose title and salary did not change. He continues to exercise these duties. There is no separate funding of the position of Police Director at this time (Priore deposition, 68-69, 79, 99-100).


 Following his termination, plaintiff filed this suit, alleging that the new mayor Priore, a Republican, had terminated him in retaliation for the fact that earlier in 1981 plaintiff had dismissed a certain police officer, an active political supporter of ...

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