The opinion of the court was delivered by: Coleman, J.
On certification to the Superior Court, Appellate Division, whose opinion is reported at 304 N.J. Super. 226 (1997).
This case raises fundamental questions implicating the respective powers and responsibilities of the executive and legislative branches of municipal government regarding the appointment, confirmation, and tenure of a tax assessor. The specific issue is whether an individual appointed by a mayor, without the "advice and consent" of the municipal council as required by statute, to fill an unexpired term of sixty-four days to be followed by a four-year full term as tax assessor, acquires tenure after serving for six years in that capacity.
The trial court found that the City Council impliedly ratified plaintiff's appointment for four years and sixty-four days by its complacency after being informed of plaintiff's appointment. The trial court also found that the municipality's failure to terminate or reappoint plaintiff upon completion of his first four-year term conferred tenure. The Appellate Division affirmed in a published opinion. 304 N.J. Super. 226 (1997). We granted certification, 156 N.J. 383 (1998), and now reverse. We hold that a tax assessor cannot acquire tenure without undergoing the statutory reappointment process.
For some time prior to April 28, 1987, plaintiff Peter Casamasino had been employed by Jersey City as its assistant tax assessor. When the tax assessor, Margaret Jeffers, died while in office, Mayor Anthony Cucci in a letter dated April 27, 1987, appointed plaintiff "as the Tax Assessor to complete the term of office of the late Margaret Jeffers expiring on June 30, 1987. Upon expiration of said term, I hereby appoint Mr. Casamasino to a full four-year term commencing July 1, 1987 and expiring June 30, 1991." Plaintiff signed his oath of office on April 28, 1987, and his salary was increased immediately from $38,150 as assistant tax assessor to $65,000 as tax assessor. Although the mayor's letter of appointment was addressed to both the president and other members of the City Council, the Council never formally approved the appointment.
Plaintiff completed his first full term as tax assessor on June 30, 1991. At that time, then Mayor Gerald McCann took no action to reappoint plaintiff. Plaintiff took no affirmative steps to seek reappointment even though he was advised to do so by Joanne Monahan, then Acting Corporation Counsel. For the next two years, plaintiff continued to perform the duties of tax assessor, and the City of Jersey City continued to pay his salary.
Mayor McCann forfeited his office in the spring of 1992 due to a federal conviction. Brett Schundler was elected to fill McCann's unexpired mayoral term in November 1992. In May 1993, Mayor Schundler was re-elected to a new four-year term. Shortly after the election, Mayor Schundler notified plaintiff on June 30, 1993, that he was exercising his "mayoral prerogative not to reappoint [plaintiff] as assessor. Effective herewith, you are relieved of your duties."
The following day, July 1, 1993, plaintiff filed a complaint in lieu of prerogative writs against the City of Jersey City and Mayor Schundler seeking reinstatement as tax assessor. In addition, the complaint as amended charged defendants with violations of plaintiff's federal civil rights under 42 U.S.C. § 1983, violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, wrongful termination from employment, defamation, intentional infliction of physical and emotional harm, and intentional interference with a business relationship.
On July 7, 1993, plaintiff obtained an order directing defendants to show cause why plaintiff's removal should not be vacated. The order to show cause also included a temporary restraining order that preserved plaintiff's status as tax assessor pending the return date of the order.
On July 30, 1993, at the Conclusion of the hearing on the order to show cause, the court found that plaintiff had been appointed by Mayor Cucci to the office of tax assessor for a four-year term commencing on July 1, 1987, and ending June 30, 1991. The court found that the City Council had consented to that initial appointment through its silence and acquiescence. The trial court further determined that plaintiff's continuation of service after June 30, 1991, coupled with the continued silence and acquiescence of the Mayor and City Council, was essentially a reappointment to the position, thus giving rise to tenure under N.J.S.A. 54:1-35.31. The remaining claims were dismissed on summary judgment motions.
Defendants appealed and plaintiff cross-appealed. Defendants argued essentially that the trial court had "usurped `the discretionary executive and legislative functions of the mayor and city council' by reinstating plaintiff as tax assessor and granting him tenure." Casamasino, supra, 304 N.J. Super. at 233-34. Citing the need for tax assessors to be insulated from municipal interference and political pressure, the Appellate Division affirmed the trial court's decision that accorded tenure to plaintiff. Id. at 234.
On the cross-appeal, plaintiff contended that the trial court had improperly dismissed his § 1983, LAD, CEPA, defamation, and punitive damage claims. The Appellate Division affirmed the dismissal of those claims as well. Id. at 240-46. We granted both parties' petitions for certification. 156 N.J. 383 (1998).
First, we address Mayor Schundler's and the City Council's argument that because the City Council was never requested to confirm plaintiff's nomination as tax assessor, he never legally became tax assessor and therefore could not acquire tenure. Plaintiff maintains that the City Council, by allowing him to stay in office after his first "appointment" and then continue in office following the lapse of a four-year term, ratified his status as tax assessor. Plaintiff argues that to permit Jersey City to create an at-will employment arrangement with its assessor by simply failing to appoint or reappoint the assessor, would contravene the statutory scheme established to secure the independence and integrity of the office of tax assessor. In the alternative, plaintiff argues that even if he did not acquire tenure, he was fired in the middle of a four-year term that he was entitled to complete. Amicus Curiae Association of Municipal Assessors of New Jersey agrees with plaintiff that the City Council impliedly ratified plaintiff's "appointment" and that he acquired tenure.
Mayor Schundler further contends that the lower courts usurped the functions of both the executive and legislative branches by issuing an unconstitutional writ of mandamus. He maintains that the court's mandamus authority does not permit it to enforce a municipality's discretionary decisions, one of which is the appointment of a tax assessor.
To answer the arguments advanced by the parties, we must examine the form of municipal government under which Jersey City operates, the statutory scheme that controls the appointment and term of a tax assessor, and our constitutional separation of powers doctrine.
The City of Jersey City adopted the mayor-council plan of government pursuant to the Faulkner Act, N.J.S.A. 40:69A-26 to -210. In view of that governmental plan, we must decide whether, when weighed against the constitutional separation of powers doctrine, a tax assessor in a Faulkner Act municipality can acquire tenure without active compliance with the statutory requirements.
The Faulkner Act was created with the intent to confer upon municipalities the greatest possible power of local self- government consistent with the Constitution of this State and the applicable law as set forth in N.J.S.A. 40:69A-28. N.J.S.A. 40:69A-30; Myers v. Cedar Tp., 36 N.J. 51, 57 (1961); Keuerleber v. Township of Pemberton, 260 N.J. Super. 541, 544 (App. Div. 1992). Municipalities that adopted one of the Faulkner Act plans have been granted wide authority to determine the organization of departments and to control personnel. Ibid. The mayor-council plan of government is governed by the general law and pertinent provisions of the Faulkner Act.
In a Faulkner Act municipality that has adopted the mayor-council plan of government such as Jersey City, "[t]he mayor shall, with the advice and consent of the council, appoint the municipal [tax] assessor." N.J.S.A. 40:69A-43(b). "Every municipal tax assessor . . . shall hold his office for a term of 4 years from the first day of July next following his appointment." N.J.S.A. 40A:9-148. If a vacancy occurs during the tax assessor's four-year term, a successor shall be appointed to fill the unexpired term. Ibid. Pertinent to this case, a tax assessor may acquire tenure provided that he or she has been reappointed "subsequent to having received a tax assessor certificate and having served as tax assessor or performed the duties of assessor for not less than 4 consecutive years immediately prior to such reappointment." N.J.S.A. 54:1-35.31(1).
Although the separation of powers doctrine applied to federal and state governments is not generally applicable to mayor-council plan of government, "the Faulkner Act plainly envisages some separation of functions between the Council (the legislative body) and the Mayor (the executive)." In re Shain, 92 N.J. 524, 537 (1983). That separation of functions imposes "certain limits on the Mayor and local council in governing the municipality." Id. at 538. Principles of separation of powers are applicable where the Legislature has specifically delegated to the mayor and to the council separate functions in the appointment of officials such as tax assessors. Where one branch of government has been specifically vested with the authority to act in a prescribed manner, neither of the other branches may usurp that authority. N.J.S.A. 40:69A-32(b); Communications Workers v. Florio, 130 N.J. 439, 463-64 (1992); David v. Vesta Co., 45 N.J. 301, 326 (1965). Here, only the mayor was involved in plaintiff's appointment. N.J.S.A. 40:69A- 43(b) requires both the mayor representing the executive branch, and the council representing the legislative branch, to perform separate roles in the appointment and reappointment of a tax assessor. Neither can ignore the responsibility of the other in the appointment and confirmation of tax assessors without violating separation of powers principles. Requiring approval of tax assessors by two branches of municipal government is not only mandated by statute, but it is also consistent with the important services provided by tax assessors.
Municipal tax assessors serve both local and state governmental needs. Thus, a municipal tax assessor is a hybrid because he or she is subject to the control of both the municipality and the State. Mitchell v. City of Somers Point, 281 N.J. Super. 492, 499 (App. Div. 1994); Jeffers v. City of Jersey City, 8 N.J. Tax, 313, 316-17 (Law Div. 1986), aff'd, 214 N.J. Super. 584 (App. Div. 1987); Horner v. Ocean Tp. Comm., 175 N.J. Super. 533, 537 (App. Div. 1980). Although a tax assessor is generally appointed by a municipality, N.J.S.A. 40A:9-146, and his or her jurisdiction is local, the powers and duties of that office are specifically prescribed by the Legislature. A tax assessor's basic obligation is to "determine the full and fair value of each parcel of real property situate in the taxing district at such price as, in his judgment, it would sell for at a fair and bona fide sale by private contract." N.J.S.A. 54:4-23. The assessor is subject to state controls that include investigation by the Director of the Division of Taxation concerning his methods. N.J.S.A. 54:1-26 and -19; Horner, supra, 175 N.J. Super. at 538.
First, we address plaintiff's contention that although his appointment by the mayor for a full four-year term running from July 1, 1987 to June 30, 1991, was not formally voted on by the City Council, his appointment was nonetheless ratified by it. We look to our decisional law to determine whether that procedural irregularity can legally be cured by the doctrine of ratification.
Ratification is equivalent to an original exercise of power that relates back to the date of the original act or appointment being ratified. Edgewater Park v. Edgewater Park Housing Authority, 187 N.J. Super. 588 (Law Div. 1982), held that a public agency may ratify premature contracting with an attorney for professional services, "provided the ratification proceedings occur after there has been compliance with the Municipal Land Use Law [N.J.S.A. 40:55D-31] and the Local Public Contracts Law [N.J.S.A. 40A:11-5(1)(a)(i) and -5]," id. at 602, and all statutory conditions precedent. There, the failure to comply with those statutory requirements made the contract for services an irregular exercise of the power to enter into the contract.
Similarly, the subsequent passage of an "ordinance directing payment of a just claim previously incurred by a municipality constitutes effective ratification to bind the municipality as though the obligation had been first properly authorized." De Muro v. Martini, 1 N.J. 516, 522 (1949). Two years later, this Court reaffirmed the principle that a contract formed without compliance with statutory conditions precedent may not be validated simply by performance. Bauer v. City of Newark, 7 N.J. 426, 434 (1951). A contract that did not comply with all statutory conditions precedent can be "ratified only by full compliance with the statutory prerequisites . . . in the first instance." Id. at 435. The pertinent principle derived from the foregoing cases that is applicable to the present case is that ratification of irregular contracts for goods or services is permitted only after full compliance with all statutory conditions precedent. That essentially means express, rather than implied, ratification.
But implied ratification of irregular contracts by municipalities has also been recognized. Johnson v. Hospital Service Plan of New Jersey, 25 N.J. 134, 140-41 (1957), held that the doctrine of implied ratification applies to individuals and municipalities when there is sufficient evidence "to affirm the unauthorized act of [the municipality's] agent." Ibid. Johnson, however, is not a case in which "the parties failed to comply with any mandatory statutory requirements operating as conditions precedent to the formalities of a valid contract." Id. at 139.
The analysis of ratification of employment relations has paralleled the analysis of contract ratification. Cetrulo v. Byrne, 31 N.J. 320, 330 (1960), held that although the Essex County Board of Chosen Freeholders had usurped the Essex County Prosecutor's authority to appoint legal assistant prosecutors, Prosecutor Byrne's predecessor in office may have ratified such an appointment by allowing the person to serve in that capacity under him for three years. Ibid. Prosecutor Byrne terminated the legal assistant the first day he began his tenure. Cetrulo claimed that he should have been considered "'as a de facto position holder or employee of the County of Essex.'" Ibid. That claim was rejected because an appointment to that position is personal to each prosecutor and because the Legislature intended to exclude a county prosecutor's confidential employees such as legal assistants from acquiring tenure under the Veteran's Tenure Act, N.J.S.A. 38:16-1. Ibid.
Barkus v. Sadloch, 20 N.J. 551 (1956), concerned a switchboard operator who was hired by the mayor when only the governing body had the statutory authority to hire her. When her employment was abruptly terminated by resolution of the governing body, she sued, claiming tenure under the Veteran's Tenure Act. The Court held that Barkus's appointment was ratified by the City Council because "[p]laintiff performed [her] duties for a period of over two years in the conspicuous surroundings of the City Hall. Her name appeared on every payroll approved by resolution of the city council during" the period of October 21, 1952 to January 15, 1954. Id. at 556. The Court also held that her status as a de facto employee for an indefinite term brought her within the protection of the Veteran's Tenure Act. Id. at 557.
Ream v. Kuhlman, 112 N.J. Super. 175, 194 (App. Div. 1970), involved an attempt to appoint a tax assessor to less than a full four- year term. It held that any attempt to appoint a tax assessor to a full term of less than four years results in a four-year term based on the plain language in N.J.S.A. 40:46-6.2, the predecessor to N.J.S.A. 40A:9- 148.
More recently, the Appellate Division in Grimes v. City of East Orange, 288 N.J. Super. 275 (App. Div. 1996), adopted the correct legal analysis for determining whether an improper appointment of a public official is capable of subsequent ratification by the appropriate appointing authority and whether that person can be considered a de facto officer. First, the Bauer test must be applied to decide whether the act or appointment was ultra vires or intra vires. An act or appointment is ultra vires if the "municipality [was] utterly without capacity" to perform the act or make the appointment. Bauer, supra, 7 N.J. at 434. Such an act or appointment is void and may not be ratified. Ibid. In contrast, an intra vires act or appointment is one that is "voidable for want of authority" and may be ratified. Ibid.; Grimes, supra, 288 N.J. Super. at 279. This general rule has been recognized throughout the country. See McQuillin, Municipal Corporations § 12.175.10 at 19 (3d ed. 1991). Second, Grimes requires that when the act or appointment involves statutory conditions precedent, ratification must be made with the same formalities required for the original exercise of power, meaning in accordance with the statutory procedures required for the original act. Grimes, supra, 288 N.J. Super. at 280 (citing McQuillin, supra, § 13.47 at 879).
Applying the above principles to the present case, we conclude that Casamasino's appointment as tax assessor for the four-year term that covered the period of July 1, 1987 to June 30, 1991, was made by the mayor who was the statutorily designated appointing authority, subject to confirmation by the City Council. N.J.S.A. 40:69A-43(b); N.J.S.A. 40A:9-146. Because the appointment was made by the proper appointing authority, at least the first half of the statutory appointment process was satisfied. In view of that fact, the focus now shifts to a consideration of the more problematic question of whether the appointment was capable of ratification by the City Council absent a formal confirmation vote.
We are satisfied that under the decisional law of this State, ratification by the City Council of a tax assessor can occur only after council members have full knowledge of all the material facts, including the knowledge that it is ratifying the appointment of a tax assessor for a particular term as a cure for its usual confirmation process. Such a ratification requires an open, unequivocal act intended as a substitute for a formal resolution of the council approving the mayor's appointment within the meaning of N.J.S.A. 40:81-20. That did not occur in the present case. Mayor Cucci's letter of appointment was addressed to the City Council and copies were sent to the City Clerk and the Law Department. The letter can reasonably be understood as requesting the City Council to place the matter on the agenda for a vote when the mayor wrote: "Thank you for your attention to this matter." In addition, Councilman Hart wrote a congratulatory letter to plaintiff in the spring of 1987. None of that, however, represents any action taken by the City Council.
Although the record is reasonably clear that the City Council was aware that plaintiff had been chosen as the tax assessor by Mayor Cucci, and that plaintiff assumed those responsibilities on April 28, 1987, there is no evidence that the City Council ever listed the appointment on its agenda for "advice and consent" as contemplated by N.J.S.A. 40:69A-43(b) and N.J.S.A. 40:81-20. Not only was there no formal action taken by the City Council to confirm the appointment, there is no evidence that the City Council ever acknowledged plaintiff in a formal meeting that arguably could be equivalent to confirmation. N.J.S.A. 40:69A-43(b) requires more than mere silence, acquiescence, or payment of salary by the City Council before ratification can be said to have occurred. Viewing the evidence in a light most favorable to plaintiff, all that can be said is that the City Council knew plaintiff had been appointed by Mayor Cucci. It took no action that was similar to or equivalent to the advice and consent contemplated by the controlling statute.
The appointment, reappointment, and tenure acquisition process for tax assessors under N.J.S.A. 40:69A-43(b) and N.J.S.A. 54:1-35.31(1) is similar to that required for Supreme Court Justices and Judges of the Superior Court under Article Six of the New Jersey Constitution. A Justice or Judge must be nominated and appointed by the Governor "with the advice and consent of the Senate." N.J. Const. art. 6, § VI, ¶ 1. If confirmed, the appointment is for a fixed term of seven years. Id. at ¶ 3. Upon completion of the first seven-year term, a Justice or Judge may be reappointed in the same manner as the ...