On appeal from Superior Court, Law Division, Middlesex County.
King, Havey and Muir, Jr. The opinion of the Court was delivered by Muir, Jr., J.A.D.
This case raises the issue whether, after the mayor of a Mayor-Council Plan F*fn1 form of government community nominates, to succeed himself, an incumbent Department Head whose term of appointment has expired and the council refuses to confirm that nominee, a vacancy exists and, if so, whether a court of law should order the mayor to continue to submit names of nominees for consideration until the council confirms a name submitted.
The trial court concluded no vacancy existed. It consequently found no basis for it "to step in and direct the mayor to do anything else."
The uncontroverted facts reflect that defendant Peter Garibaldi, Mayor of Monroe Township, began serving his current four-year term of office on January 1, 1984. On January 4,
1984, the council confirmed the mayor's appointment of Thomas R. Farino, Jr., as director of the department of law for a term of two years.
In March 1985, Farino resigned and the mayor nominated defendant Mario Apuzzo as law department director for the "period April 1, 1985 to and including December 31, 1985." The council confirmed Apuzzo's nomination for the designated period.
On December 17, 1985, the mayor again submitted Apuzzo's name to the council as the law department head for a term of two years commencing January 1, 1986. The council voted down a resolution to confirm the nomination. The mayor has not submitted another name.
Thereafter, plaintiffs, members of the council, filed a complaint seeking a declaratory judgment determining that Apuzzo's appointment as director had expired and "requiring the Mayor to propose another name for appointment to the position of Director of Law by a date to be fixed by the Court."
Plaintiffs appeal from the decision of the trial court and argue:
1. The Position of Director of Law is Vacant.
2. The Expiration of the Term of Office of a Department Head Creates a Duty to ...