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Coyle v. Board of Chosen Freeholders of Warren County

May 03, 2001

JOHN J. COYLE, JR., PLAINTIFF-RESPONDENT,
v.
THE BOARD OF CHOSEN FREEHOLDERS OF WARREN COUNTY, JOHN DIMAIO, INDIVIDUALLY, MICHAEL DOHERTY, INDIVIDUALLY, DEFENDANTS-APPELLANTS.



Before Judges Stern, A. A. Rodríguez and Fall. On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. WRN-L-2-01.

The opinion of the court was delivered by: Stern, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 13, 2001

This appeal requires us to decide if the Warren County Board of Chosen Freeholders ("Board") can terminate its County Counsel, without cause, prior to the end of his three year statutory term of office. Because there is no dispute that the County Counsel is a legal position held by a lawyer subject to the Supreme Court's plenary power governing the practice of law,*fn1 and because County Counsel is the legal advisor to the governing body which is, in essence, the client when there is no County Executive, we hold that the Board can discharge County Counsel before the termination of his statutory term.

I.

At the general election of November 7, 2000, the republican candidate was elected to serve a three-year term on the Board, effective January 1, 2001. The election changed the Board's composition to a republican majority as of that date.

On December 20, 2000, the Board, then having a majority of democrats, adopted a resolution appointing plaintiff John J. Coyle, Jr., ("Coyle") as County Counsel for a three-year term. The resolution provided:

On motion by Mr. DeBosh, seconded by Mrs. Stone[,] the following resolution was adopted by the Board of Chosen Freeholders of the County of Warren at a meeting held December 20, 2000[:]

RESOLUTION APPOINTING JOHN J. COYLE, JR. AS WARREN COUNTY COUNSEL AND AUTHORIZING AN EMPLOYMENT AGREEMENT

BE IT HEREBY RESOLVED by the Board of Chosen Freeholders of the County of Warren as follows:

1. Pursuant to N.J.S.A. 40A:9-43, John J. Coyle, Jr., Esq., an attorney-at-law of the State of New Jersey, with offices located at 865 U.S. Highway 22 West, Phillipsburg, New Jersey 08865, is hereby appointed as Warren County Counsel for a three (3) year term of office commencing December 24, 2000 and until December 23, 2003.

2. The Employment Agreement between the Board and Mr. Coyle setting forth the terms and conditions of said appointment and employment in regard to duties, responsibilities and compensation, which Employment Agreement is made a part of this Resolution by reference and is incorporated herein as if set forth verbatim, is hereby approved by the Board, and the Director of the Board is hereby authorized and directed to execute said Employment Agreement on behalf of the Board.

The Warren County Board consists of three members. One Freeholder is elected each year to a three-year term. See N.J.S.A. 40:20-20 to -21. See also, e.g., N.J.S.A. 40:20-20 to -35. The sole republican member on the Board as of December 2000, defendant John DiMaio ("DiMaio"), opposed the appointment of Coyle as County Counsel. DiMaio has certified:

1. I am a Defendant in the above matter and appointed to serve an unexpired Freeholder term on December 6, 2000.

2. Prior to Plaintiff Coyle's acceptance of an appointment to a three-year term as County Counsel commencing December 24, 2000, I informed him that he did not hold the trust and confidence of the new majority on the Freeholder Board reorganizing January 1, 2001, and that he would be requested to resign.

3. Plaintiff Coyle was urged to not rely on a thirty-five year old case [see Pillsbury v. County of Monmouth, 140 N.J. Super. 410 (App. Div. 1976)] and to accept that it was his professional responsibility to resign under circumstances where he was appointed by a "lame duck" Freeholder Board whose governance was rejected by electoral mandate. Accordingly, whatever harm incurred to Plaintiff's pension status is self-inflicted.

On January 1, 2001, the current Board rescinded the employment agreement with Coyle and passed a resolution appointing Joseph J. Bell ("Bell") as County Counsel. That resolution provided:

On motion by Mr. Doherty, seconded by Mr. DiMaio[,] the following resolution was adopted by the Board of Chosen Freeholders of the County of Warren at a meeting held January 1, 2001[:]

RESOLUTION APPOINTING JOSEPH J. BELL, ESQ. AS WARREN COUNTY COUNSEL AND AUTHORIZING AN EMPLOYMENT AGREEMENT

BE IT HEREBY RESOLVED by the Board of Chosen Freeholders of the County of Warren as follows:

1. Pursuant to N.J.S.A. 40A:9-43, Joseph J. Bell, Esq., an attorney-at-law of the State of New Jersey, with offices located at 10 Bloomfield Ave., Denville, NJ 07834 is hereby appointed as Warren County Counsel for a three (3) year term of office commencing January 1, 2001 and until December 31, 2003.

2. The Employment Agreement between the Board and Mr. Bell setting forth the terms and conditions of said appointment and employment in regard to duties, responsibilities and compensation, which Employment Agreement is made a part of this Resolution by reference and is incorporated herein as if set forth verbatim, is hereby approved by the Board, and the Director of the Board is hereby authorized and directed to execute said Employment Agreement on behalf of the Board.

In his certification, Freeholder Michael Doherty ("Doherty"), the republican elected on November 7, 2000, to a three-year term commencing January 1, 2001, stated:

3. In order to implement the will of the electorate, I, together with Freeholder John DiMaio, are entitled to retain County Counsel in whom we place our trust and confidence.

4. Prior to Plaintiff, John Coyle's, acceptance of an appointment to the Office of County Counsel for a three-year term commencing December 24, 2000, by the defeated democrat majority, Mr. Coyle was advised that he did not enjoy the faith, confidence and trust of the incoming Board and advised not to accept the position so as to endanger his pension benefits by resigning posts with municipal clients.

5. The salary provided for Plaintiff in his three-year contract purports to bind the hands of Freeholder Boards for the next three budget years. As such, it is an ultra-vires act and hence void.

6. An example of how the policy of fiscal conservatism cannot be implemented with Defendant Coyle as County Counsel is therefore his own professional services contract which he approved with the County of Warren.

7. Since Plaintiff Coyle accepted his appointment over our objections to his representation of the Board of Chosen Freeholders upon its reorganization, a resolution rescinding ...


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