On appeal from Superior Court of New Jersey, Law Division, Hudson County, L-6952-02.
Before Judges King, Wefing and Fuentes.
The opinion of the court was delivered by: Wefing, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this appeal we are called upon to consider whether the County Executive of Hudson County was required to seek the advice and consent of the Board of Chosen Freeholders of Hudson County ("Freeholders") prior to making appointments to the Board of Education of the Hudson County Schools of Technology ("Board of Education"). The trial court concluded that the County Executive was required to seek such advice and consent and set aside two appointments that had been made without such advice and consent. We have concluded that the trial court erred in such determination; we reverse the trial court's order and direct the reinstatement of the affected individuals. *fn1
Hudson County is a county of the first class and it has adopted the county executive form of government under the Optional County Charter Law. N.J.S.A. 40:41A-31 to -44. At the time this action commenced, Bernard M. Hartnett, Jr. was the County Executive for Hudson County. By letters dated October 22, 2002, Hartnett notified the Board of Education of his appointment, pursuant to N.J.S.A. 18A:54-16, of Thomas Murphy and Rev. Edward Allen to four-year terms as members of the Board, effective November 1, 2002. Murphy and Allen were appointed to replace John Mautone and Michael Gallo, respectively, whose terms as members of the Board of Education were to expire on October 31, 2002.
The Freeholders asserted that such appointments required their advice and consent under N.J.S.A. 40:41A-37. A complaint and order to show cause challenging these appointments were filed on October 30, 2002. On November 4, 2002, the trial court issued the order to show cause but, because the Freeholders had not yet passed a resolution authorizing this legal challenge, denied the request to enjoin the Board of Education from conducting a reorganization meeting scheduled for that day at which Murphy and Allen would take their seats. The trial court set a return date of November 22, 2002. The Board of Education met thereafter and Murphy and Allen took the oath of office and were seated as members. The Board then proceeded with its regularly scheduled business.
November 5, 2002 was Election Day. Hartnett was a candidate for re-election as County Executive but was defeated by his opponent, Thomas A. DeGise. DeGise was sworn in as County Executive prior to the November 22 return date of the order to show cause. When counsel for DeGise appeared before the trial court on that return date, he adopted the position of the Freeholders, that appointments by the County Executive to the Board of Education required the advice and consent of the Freeholders. During the course of the argument, counsel for the Board of Education and Murphy and Allen stressed to the trial court that for at least the twelve years preceding Hartnett's action, no appointment to the Board of Education by Hartnett's predecessor as County Executive had been submitted to the Freeholders for their advice and consent.
Following argument, the trial court gave an oral opinion in which it concluded that the Freeholders were required to give their advice and consent to such appointments and that the appointments of Murphy and Allen were invalid as a result of Hartnett's failure to seek such advice and consent. In the order which the trial court executed on December 2, 2002, it declared their offices vacated but specified that its Order was effective as of November 22, 2002, would not have any retroactive effect and could "not be used to disturb or invalidate any actions previously taken by the Board of Education of the Hudson County Schools of Technology, including any matters on which defendants Allen or Murphy voted." The trial court denied a request for a stay of its order. DeGise promptly appointed Thomas Mautone and Michael Gallo to fill the seats the trial court had declared vacant and the Freeholders duly gave their advice and consent.
On December 5, 2002, Murphy and Allen sought permission to proceed on an emergent basis in this court to prevent the Board of Education from meeting at its next regularly scheduled meeting, to be held on December 10, and seating Mautone and Gallo in their stead. On December 6, the court held a telephone conference call with the attorneys then involved in the matter and learned that the two seats in question were not necessary to constitute a quorum for the Board of Education. Rather than enjoin the Board of Education from meeting, with the attendant risk of disrupting public business, this court entered an order restraining Murphy and Allen from participating in that meeting as well as restraining the Board from acting to seat Mautone and Gallo. The order directed the parties to appear before this court on its next regularly scheduled day for argument, December 11, to consider further the request for injunctive relief. In addition, we permitted counsel for Mautone and Gallo to participate in the matter. Following that argument, we entered an order accelerating the appeal and continued the stay previously imposed.
N.J.S.A. 18A:54-16 sets forth the method of appointment to boards of education of county vocational schools. *fn2 It calls for a board of education comprised of the county superintendent of schools and four appointed members. It further provides, however, that a county of the first class which has adopted a form of governance under the Optional County Charter Law may pass an ordinance increasing the size of the board from four to seven. Hudson County has elected to increase its board accordingly. The statute also provides in pertinent part:
In counties of the first class which, by ordinance, established a board consisting of seven persons to be appointed, the seven appointive members shall be appointed by the chief elected executive officer of the county. In all other counties the four appointive members of the board shall be appointed by the chief elected executive officer of the county, or the director of the board of chosen freeholders, with the advice and consent ...