Miller, Edward S., J.s.c.
Plaintiff seeks a declaratory judgment of a number of issues presented by the establishment of a mayor-council form of government under the Faulkner Act, N.J.S.A. 40:69A-1 et seq.
By referendum in 1984, the voters of the Township of Washington in Gloucester County, New Jersey replaced the then existing township committee form of government with a mayor-council plan. N.J.S.A. 40:69A-31 et seq. Pursuant to this new structure of government, a five-member council and a mayor were elected in November, 1984. The council is composed of three Republican members and two Democratic members. The Mayor of Washington Township, who is a Democrat, is plaintiff in this action.
On January 29, 1985, the Council of Washington Township (council) passed by a vote of three-to-two ordinance # 1-1985 adopting an administrative code for the township. At the time the administrative code was passed, the township was operating under a temporary resolution which was set to expire at noon on January 31, 1985.
Upon the adoption of ordinance # 1-1985, the mayor filed an action in lieu of prerogative writs demanding a variety of relief. An order to show cause was granted on January 31, 1985 with a return date of February 20, 1985. The order to show cause
provided, among other things, that the temporary organizing resolution would remain in effect until further order of this court.
Prior to the amended return date of the order to show cause of February 19, 1985, the mayor vetoed ordinance # 1-1985 pursuant to N.J.S.A. 40:69A-41. In spite of the mayor's veto, both parties requested on the return date that this court address the issues raised by the mayor's complaint in order to finally resolve these issues. This opinion embodies the oral decision of the court on the return date of the order to show cause and resolves the issues on which the court reserved decision.
The first issue raised in the complaint is the validity of the position of attorney to the council. By law, every municipality is required to appoint a municipal attorney. N.J.S.A. 40A:9-139. The proposed administrative code of Washington Township provides for the position of the township attorney within the department of law. In addition, the administrative code creates a second position of attorney for council.
The mayor argues that the position of attorney for council is not authorized by law and is an unlawful divestiture of the functions of the township attorney. The council, on the other hand, argues to the contrary. This court agrees with the mayor.
Under the Faulkner Act, a municipality acting through a mayor-council form of government is organized through administrative departments. See N.J.S.A. 40:69A-43(a). The act requires that there be a department of administration and gives the municipality the discretion to create other departments, not to exceed nine in number. Ibid. The administrative functions, powers and duties of the municipality, other than those vested in the municipal clerk and tax assessor, are to be assigned to the various departments established. Ibid. Each department is headed by a director who is appointed by the mayor with the advice and consent of the council. N.J.S.A. 40:69A-43(b).
As already noted above, the position of municipal attorney is mandated by statute. N.J.S.A. 40A:9-139. In the case of Indyk v. Klink, 121 N.J. Super. 314 (App.Div.1972), our Appellate Division held that the power to appoint the municipal attorney resided in the mayor pursuant to N.J.S.A. 40:69A-43(a). Id. at 320. The court in that case reasoned that although the functions of the municipal attorney may be characterized as legislative or ...