On appeal from the Superior Court, Law Division, Essex County.
Judges Dreier, Ashbey and Landau. The opinion of the court was delivered by Ashbey, J.A.D.
Plaintiff, City Council, City Of Orange Township (Council), appeals from an order dismissing its complaint in lieu of prerogative writs against the Mayor for laying off certain employees.
We affirm, substantially for the reasons given by Judge Paul B. Thompson in his December 5, 1990 letter opinion.
The impasse between the Council and the Mayor generating this appeal developed when the Mayor laid off two subordinates of the municipal clerk. At issue is the Mayor's authority under the Faulkner Act, N.J.S.A. 40:69A-1 et. seq., light of Orange's ordinances.
Orange operates under a mayor-council plan of government. Its council exercises legislative power. N.J.S.A. 40:69A-36. The council by statute is limited in its role concerning municipal employees, and "shall deal with employees of the department of administration and other administrative departments solely through the mayor. . . ." N.J.S.A. 40:69A-37.1. The council appoints the municipal clerk, who serves as clerk of the council, to compile its ordinances and resolutions, "and perform such functions as may be required by law."*fn1 N.J.S.A. 40:69A-38. Each municipality is required to have a municipal clerk. N.J.S.A. 40A:9-133. Such clerks achieve tenure, N.J.S.A. 40A:9-133.7, and "shall not be removed [from office] except for good cause shown after . . . [a] hearing". N.J.S.A. 40A:9-134. No ordinance may reduce the salary of a municipal clerk during term. N.J.S.A. 40A:9-165. The governing body may also by ordinance create the office of deputy municipal clerk, "and provide for appointments thereto." N.J.S.A. 40A:9-135.
Respecting the appointment power of the council, 1985 amendments to the Faulkner Act also provided:
The legislative power of the municipality shall be exercised by the municipal council, subject to the procedures set forth in this plan of government . . . and may . . . be exercised by resolution, including, but not limited to:
j. The election, appointment, setting of salaries and removal of officers and employees of the council, subject to any pertinent civil service requirements and any pertinent contractual obligations, and within the general limits of the municipal budget;
The 1985 legislative amendments were preceded by a comprehensive committee report which described the council power at that time as follows:
The council is limited to legislative functions, with its only appointment based upon the charter being that of the municipal clerk. It has various investigative and fiscal control powers, but may remove municipal officers only for cause.
The Changing Structure of New Jersey Municipal Government, incorporated as the Thirtieth Report of the County and Municipal Government Study Commission, at 26 (1985). That report characterized the result as "leading to an atmosphere of ...