On appeal from Superior Court, Law Division, Hudson County.
Pressler, Brody and Cohen. The opinion of the court was delivered by Brody, J.A.D.
[203 NJSuper Page 104] The main issue in this appeal is whether under the county executive plan of the Optional County Charter Law (the Charter Law), N.J.S.A. 40:41A-1 et seq., the county executive can fire the county administrator free of the requirements of N.J.S.A. 40:41A-87b. (section 87b.). The trial court held, among other things, that the administrator was entitled to a section 87b. public hearing. We conclude that N.J.S.A. 40:41A-42, which empowers the executive to appoint an administrator "who shall serve at his pleasure," renders section 87b. inapplicable. We
therefore reverse that portion of the judgment and otherwise affirm.
The dispute was launched by a shift in political winds within the Democratic Party of Hudson County. The county operates under the county executive plan, N.J.S.A. 40:41A-31 to 44, which confers "administrative and executive" authority upon an elected county executive and "legislative and investigative" authority upon an elected board of freeholders (the board). N.J.S.A. 40:41A-32. The executive is required to "appoint an administrator who shall serve at his pleasure," N.J.S.A. 40:41A-42, and who "shall be responsible only to the executive." N.J.S.A. 40:41A-44.
A schism in the Democratic Party left the board in one camp and the executive, defendant Edward F. Clark, Jr., in the other. As a result, the normal cleft between the executive and legislative branches became a chasm. The administrator, plaintiff Aaron I. Schulman, sided with the board even though the Charter Law tied his allegiance to the executive. The situation became intolerable to the executive and he fired the administrator. The letter of dismissal reads as follows:
Please be advised that your services as Hudson County Administrator are terminated effective immediately.
The administrator and the board brought this action to challenge the executive's authority to fire the administrator without cause and without affording him a public hearing.
The trial judge held that though the firing was for purely political reasons the federal constitution afforded the administrator no protection because his political allegiance was relevant to the performance of his duties. Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). He held that there was no other constitutional impediment to the firing. Battaglia v. Union County Welfare Bd., 88 N.J. 48 (1981). He further held that no prior agreement or county ordinance could deprive the executive of the authority given him by the Charter Law to fire the administrator without cause. We affirm these
holdings substantially for the reasons set out in the judge's oral opinion.
There remains the question of whether the Charter Law itself requires that the administrator be afforded a public hearing before his dismissal is final. N.J.S.A. 40:41A-42 (section 42) creates the office of administrator under the county executive plan. It provides:
The county executive shall appoint an administrator who shall serve at his pleasure. The board shall advise and consent to his nomination but shall not prevent his suspension or ...