On appeal from the Final Decision of the Merit System Board.
Approved for Publication March 14, 1996.
Before Judges Pressler, Keefe and Wefing. The opinion of the court was delivered by Keefe, J.A.D.
The opinion of the court was delivered by: Keefe
The opinion of the court was delivered by KEEFE, J.A.D.
Plaintiff Charles Grimes (Grimes) appeals from a final decision of the Merit System Board (Board) in which the Board determined that the City of East Orange (City) validly appointed Harry Harman to the position of Police Chief. On appeal, Grimes contends, among other things, that the Board erred in deciding that the invalid appointment of Harman constituted no more than harmless error, and that the proceedings before the Board were procedurally defective. We agree in part with Grimes' contentions and remand for further proceedings.
The City is organized pursuant to N.J.S.A. 40:103-5(71) to (127). Consequently, the Mayor, subject to confirmation by the City Council, is the appointing authority for the position of Chief of Police. N.J.S.A. 40:103-5(89). However, appointment and removal authority for all other members of the police department is vested in the Board of Police Commissioners (Commissioners). N.J.S.A. 40:103-5(98).
In December 1992, the Department of Personnel (DOP) erroneously issued a certification to the Commissioners, at the Commissioners' request, for the appointment of a Chief of Police. The Commissioners acted on the certification by appointing Harry Harman as Chief of Police on April 6, 1993. The validity of that appointment was one of the issues presented in a civil suit instituted by Grimes against the City and others in the Law Division. *fn1 That issue was subsequently severed from the Law Division proceeding for resolution through the administrative proceeding now under review.
On December 21, 1993, the Deputy Director of DOP issued an opinion holding that the certification issued by DOP for the appointment was "properly disposed of and recorded." She found that "the Board [of Commissioners], with the concurrence of the Mayor, did adopt and approve the resolution offered by Commissioner Kimberly Moss to appoint Harry Harman as Police Chief of East Orange." Grimes appealed the Deputy Director's decision to the Board.
In its final determination of June 17, 1994, upholding the Deputy Director's decision, the Board said:
While appellant is correct that the Mayor is the appointing authority for the Police Chief, the Board of Police Commissioners indicated that the Mayor did concur with the appointment of Mr. Harman as Police Chief. Therefore, while the certification should have been issued to the Mayor, this technicality does not void the appointment since the Mayor concurred with the appointment. Appellant has failed to submit any documentation which establishes that the Mayor did not concur with the appointment.
On appeal, the Board acknowledges, as it did in its opinion, that the Commissioners did not have the power to appoint Harman as Chief of Police. However, it argues that the Board's action in approving the appointment was "harmless error" because "the Mayor effectively ratified the procedural defect of Harman's initial selection by the wrong entity."
The City admits in its brief that if it had not sought "the consent and concurrence of the Mayor" the "'technical error'" occasioned by the Commissioners' action in appointing Harman "might possibly rise to the level of a more 'substantive error,' requiring the vacation of Harry Harman's appointment[.]" However, the City contends that inasmuch as the Board found that the Mayor did "concur" in the appointment of Harman, Grimes is bound by that finding of fact. In essence, the City joins in the Board's argument that the Commissioners' error was cured by the Mayor's concurrence.
In this case, the Board's opinion does not speak in terms of ratification, although that is its clear import. The question of whether the invalid act of the Commissioners in appointing Harman was capable of subsequent ratification by action of the proper appointing authority is one of law. Therefore the Board's decision on that question is not entitled to deference. Mayflower Securities Co. v. Bureau of Securities, 64 N.J. 85, 93, 312 A.2d 497 (1973).
The ability to ratify depends upon whether the act in question was ultra vires, as distinguished from intra vires. Bauer v. City of Newark, 7 N.J. 426, 434, 81 A.2d 727 (1951). Acts that are ultra vires are void and may not be ratified, while intra vires acts may be. Id. An act is ultra vires if the "municipality [was] utterly without capacity" to perform the act. Ibid. (emphasis added). On the other hand, an intra vires act is one that is merely "voidable for want of authority." Ibid. Thus, where, for example, a contract is entered into by "an unauthorized agency" but the municipality has the power to enter into such contracts, the contract may be later ratified by the municipal body having the power in the first instance to make the contract. De Muro v. Martini, 1 N.J. 516, 522, 64 A.2d 351 (1949). The principle is equally applicable to appointments of employees. See Cetrulo v. Byrne, 31 N.J. 320, 330, 157 A.2d 297 (1960) (suggesting that the prosecutor had the power to ratify the appointment of plaintiff to the position of legal assistant to the prosecutor where the appointment had been improperly made by the ...