On appeal from the Superior Court, Law Division, Essex County.
Pressler, Bilder and Gruccio. The opinion of the Court was delivered by Pressler, P.J.A.D.
This controversy has its genesis in an ordinance adopted by the Village of South Orange which, pursuant to N.J.S.A. 40A:14-118, designated the village president as the "appropriate authority" to exercise supervisory control over the police department.
The village president, defendant Bertrand Spiotta, acting in accordance with the ordinance, issued a memorandum of policy respecting departmental organization. Plaintiff Frederick E. Gayder, police chief of the village, brought this action to challenge the validity of both the ordinance and the policy memorandum. He also sought to recover compensatory and punitive damages from Spiotta, claiming that the memorandum usurped the power of the police chief and was maliciously intended to do so. The Law Division severed the damages count from the claims in lieu of prerogative writs. After a trial on those claims, the court entered an order, certified as final pursuant to R. 4:42-2, invalidating the ordinance and, consequently, the memorandum, on the ground that Spiotta's cast of the tie-breaking vote necessary for the enactment of the ordinance
was infected by his personal interest in having himself designated as the appropriate authority. Because of the procedural basis of the court's action, it did not address plaintiff's substantive challenge to the ordinance. Spiotta appeals.*fn1
Pending the appeal, the village's board of trustees enacted a superseding ordinance designating the village administrator as the appropriate authority. The administrator, in that capacity, has not repromulgated the challenged memorandum, which in fact never went into effect because of a preliminary restraint against its implementation entered in this action. The parties have also agreed at oral argument that there is nothing to suggest that the substance of that memorandum is likely to be adopted by the present appropriate authority. It is, therefore, clear that the question respecting the substantive validity of the challenged memorandum is moot, and we decline to address it.
We would also ordinarily regard the question respecting the procedural validity of the original ordinance as moot in view of its supersession and would therefore ordinarily have declined to address it as well. We nevertheless have opted to consider the merits of that question because of our conclusion that the trial court erred in its application of the so-called personal interest disqualification rule, and the public interest requires us to say so. See Vasquez v. Glassboro Service Ass'n, Inc., 83 N.J. 86, 94 (1980).
The legal question we have undertaken to decide must be resolved in the context of both the village's form of government and the purpose, policy and provisions of N.J.S.A. 40A:14-118. The village operates under its own special charter, enacted by the Legislature and approved by its voters in 1977 and effective on January 1, 1978. The legislative function is allocated to a six-member elected board of trustees. The chief-executive function is allocated to an elected village president. The village president presides over meetings of the board. Although he is accorded the right to participate in all board-meeting discussions, he is permitted to vote only to break a tie or to cast the fourth affirmative vote required for passage of an ordinance. Clearly, then, the office of village president is tantamount to that denominated "mayor" in other municipal governmental forms. Compare, e.g., N.J.S.A. 40:69A-1, et seq. (optional municipal charter act) and, more particularly, N.J.S.A. 40:69A-41(b) (mayoral vote in mayor-council plans).
N.J.S.A. 40A:14-118, generally providing for the creation and establishment of a municipal police department, was amended in 1981 by L. 1981, c. 266. The purpose of the amendment, as explained by its accompanying statement, was to "clarify the responsibility for the conduct of municipal police forces by providing for a line of authority with respect to the exercise of the police function in municipalities." The scheme of the amendment is to require the governing body, by ordinance, to designate an appropriate authority generally to supervise the police function and to promulgate rules and regulations for the governing of the operation of the police force and the discipline of its members. Among those statutorily eligible for designation as the appropriate authority are the mayor, manager, other executive or administrative officer, the governing body as a whole, a designated committee of the governing body or a special municipal board or commission established for that purpose. In view of the form of the village's government, the
village president, as effective mayor, was clearly eligible ...