On appeal from Superior Court of New Jersey, Law Division, Salem County.
Fritz and Baime. The opinion of the court was delivered by Fritz, P.J.A.D.
By way of an action in lieu of prerogative writs, a citizen challenges a resolution of the Salem County Board of Freeholders (Freeholders) appointing four members to the Salem County Community College Board of Trustees (Board of Trustees). The Law Division judge heard the matter on the merits and dismissed the complaint. Our judgment is not in accord with that and we reverse.
Plaintiff's challenge is bifold. He asserts that the Freeholders did not comply with N.J.S.A. 18A:64A-8 requiring the appointment of a search committee for the nomination of individuals to serve on the Board of Trustees. He insists that an employee of the county college, a member of the Board of Freeholders, should be disqualified by conflict of interest from voting for the appointment of any trustee. We believe each of these arguments is sound.
The findings of fact in the oral decision of the trial judge are not nearly so plentiful nor precise as we might have liked. However, there appears to be no meaningful dispute respecting any significant facts, and it is obvious that the judge below decided the issues as matters of law. Questions of law are clearly involved. The comments of this paragraph merely
indicate that we do not believe ourselves bound by the dictates of Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474 (1974) to the acceptance of unexpressed findings of fact.
We turn to the alleged statutory violation. First, it is abundantly clear from the record -- the fact is conceded -- that the "appointing authority," i.e., the Freeholders, simply did not "establish" a trustee search committee. It may well be that past practices were followed and that a Freeholder chose persons to serve as a de facto search committee to nominate individuals for the trusteeships. But as the trial judge observed, "[G]ood practice would indicate that when the legislature says you shall do something, you ought to do it." The statute is explicit. It says, "The appointing authority of the county shall establish a trustee search committee. . . ." (Emphasis supplied.) "If the statute is clear and unambiguous on its face and admits of only one interpretation, we need delve no deeper than the act's literal terms to divine the Legislature's intent." State v. Butler, 89 N.J. 220, 226 (1982). The selection of nominating personnel by one individual is not at all substantial compliance with a statute which specifies that a search committee shall be established by the appointing authority.
The statutory scheme, N.J.S.A. 18A:64A-1 et seq., reflects an intent to insulate county colleges from the corrosive effect of party politics. "This plan for education has been carefully formulated over the years and has a firm constitutional foundation. . . . It embodies a policy of independence and freedom from political control for all forms of public education, . . . including public higher education." Bd. Trustees Mercer Cty. Comm. College v. Sypek, 160 N.J. Super. 452, 461 (App.Div.1978), certif. den. 78 N.J. 327 (1978) (citations omitted).
Obviously the trial judge himself had a little trouble with this. His determination that there was "substantial de facto compliance" was predicated upon his conclusion that "there was at least as good an effort made to comply with the statute as had been done before." This followed his observation, "I make
no comment with respect to the question that this was done on a one-party basis with a two-party board because it hadn't been done at all prior to that." He concluded:
Now, I think in the future, Mr. Zehner [counsel for Freeholders], the board [of Chosen Freeholders] might well consider whether they ought not to organize on the first of January and to appoint a committee right away. You do what you want. I mean, I just, I can see problems coming up. The fact that ...