In the case of a New Jersey municipal department head as described by N.J. Stat. Ann. 40:69A-43, the mayor exercises supervisory control and the power of removal over these subordinates, precisely the situation described. Thus we hold that defendant Fahy exceeded his powers when he attempted to authorize a contract extending beyond his own term as mayor. Such "a contract forbidden by charter or state laws is void, since all persons who contract with a municipal corporation are bound to know that contracts beyond its scope are void . . ." McQuillin, § 29.71. Therefore, we find that plaintiff possessed no protectible property interest which safeguarded his job beyond the tenure of the mayor who appointed him.
Plaintiff argues that the contract must be honored because it was signed by the mayor and by the township clerk, and because the Township council itself approved his appointment. However, such apparent official approval cannot override the clear language of the statute which makes the term of a department head coterminous with that of the appointing mayor. The courts of New Jersey have held that a Faulkner Act municipal government may not adopt an ordinance which would authorize the city council to appoint certain officials since this would be contrary to the terms of the statute, see Indyk v. Klink, 121 N.J. Super. 314 at 320, 297 A.2d 5 (App. Div. 1972). Here it is equally improper for this mayor and the Township to attempt to extend the term of a department head contrary to the language of the statute.
We conclude that the contract between defendants and plaintiff is ultra vires and of no effect. As a result, plaintiff suffered no infringement of property interests protected either by contract or by statute.
3. Was Plaintiff's Position One Protected from Dismissal for Patronage Reasons?
Plaintiff contends that there exists a factual issue as to whether he was terminated from his position solely due to his political opposition to the new mayor. Therefore, he argues, summary judgment would be inappropriate in this case; it is for a jury to determine whether defendant Fahy acted with impermissible intent. However, we hold that, even if we are to assume that plaintiff's termination was a politically motivated one, the Supreme Court's rulings on patronage jobs, particularly as applied recently by the Third Circuit, would permit a mayor constitutionally to dismiss one in the position of plaintiff for just such a political reason. Therefore, summary judgment is appropriate in this case.
In 1976, the Supreme Court held in Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673, that dismissal of certain public employees solely for their political affiliation was a violation of their First Amendment rights. The plurality opinion concluded, however, that patronage dismissals of employees who occupied policy-making, advisory positions would not offend the First Amendment and hence would be permissible.
In Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980), the Court elaborated on this standard to conclude that "the ultimate inquiry is not whether the label 'policymaker' or 'confidential' fits a particular position; . . . the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." 445 U.S. at 518.
Recently, in Ness v. Marshall, 660 F.2d 517 (3d Cir. 1981), the Third Circuit applied these concepts to a suit brought by the former city solicitor of York, Pennsylvania and two assistants who alleged that the new mayor, a Democrat, had dismissed them because they were Republicans and in so doing had violated their First Amendment rights. In affirming the lower court's grant of summary judgment for defendants, the appeals panel examined the duties of the city solicitor as set out in the York Municipal Administrative Code. The court found that the solicitor was to be appointed by the mayor, with advice and consent of the council, and was to serve at the pleasure of the mayor. His duties included controlling all legal matters and rendering legal opinions. The court concluded that such tasks did in fact "implicate broad policy or administrative goals. . . . Plaintiffs were in a position to thwart the goals of the new administration in numerous ways . . ." Ness, 660 F.2d 517, 521 (quoting Memo. Opinion of Nealon, J., M.D. Pa., at p. 91a).
The Third Circuit court accordingly held that as a matter of law the plaintiffs occupied policy-making roles and thus could be subject to patronage dismissal. Summary judgment was therefore held to be appropriate, even though there was factual dispute as to whether the plaintiffs had in fact performed their duties in a technical and non-policy-oriented way. The court found that as a legal matter the job clearly contemplated policy-making involvement, and hence Branti and Elrod protections were deemed to be inapplicable.
We follow the analysis of the appeals court to the same conclusion in this case. The statute involved, N.J. Stat. Ann. 40:69A-43, provides that the Police Director is to be appointed by the mayor, with council approval, and to serve only during the term of that mayor. The township administrative code, moreover, gives the Police Director policy-making responsibilities. Section 2-9.2 states that the "control and discipline (of the department) shall be vested in the director and he shall have the power to promulgate rules and regulations for the day to day operation and discipline of the department; to enforce all rules and regulations and any general or special orders . . . ." Clearly the Police Director plays an active role in shaping the policies of the Police Department.
Plaintiff notes that the administrative code in section 2-9.3 provides that "the (city) council shall by resolution and with the consent of the mayor, establish such rules and regulations on policy matters as it may deem necessary for the government and efficient working of the entire department", and argues that it is therefore the council which set policy. We do not dispute that this clause gives to the council certain policy-making powers; however, this clause in no way preempts the authority of the Police Director to set policies himself, particularly since the council's role is an explicitly discretionary one.
Similarly, it is immaterial to our holding that the depositions of defendant Mayors Fahy and Priore indicate that they perceived the position of Police Director as a non-policy-making one, and that under Fahy plaintiff did function in an apparently administrative way. (Fahy Dep., Aug. 25, 1983 at 20-23; Priore Dep., Aug. 25, 1983 at 55-58). Like the Third Circuit in Ness, supra, we find that the statute and administrative code delineating the job demonstrate that affinity of policy would be "an appropriate (even if not a necessary) requirement for the effective performance of the (job). . . ." 660 F.2d at 522-23. Having found as a matter of law that the position of Police Director, like other department heads, may be said to appropriately require a confidential, advisory relationship with the mayor, we accordingly hold that an incoming mayor in such a Faulkner Act government may decline to reappoint a predecessor's department head for those political reasons which would be impermissible if they were applied to a non-confidential public employee.
Since we hold that as a matter of law plaintiff possesses neither a statutory nor a contractual property entitlement to continued employment, and that his job was one properly subject to patronage dismissal, we enter summary judgment for the defendants.
For the reasons set forth in the Court's letter-opinion filed herewith,
It is on this 13 day of February, 1984,
ORDERED that defendants' motion for summary judgment be, and it hereby is, granted.
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