On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket Nos. L-076-08 and L-430-08.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Winkelstein and Yannotti.
Defendant Douglas H. Palmer is the Mayor of the City of Trenton. In February 2003, Mayor Palmer, with the approval of the City Council, appointed defendant Joseph J. Santiago as the Police Director of Trenton.
At the time of his appointment and for some time thereafter, Director Santiago was a resident of Trenton. However, Santiago does not presently reside in Trenton.
A Trenton ordinance adopted in 1972 requires all officers and employees of Trenton to be Trenton residents. Since the adoption of this original residency ordinance, the City Council has adopted a series of amendments modifying its provisions. One such amendment, adopted in 1987, authorizes the mayor to waive the residency requirement based on a certification by the business administrator that a position is vacant and not likely to be filled despite due diligence in recruiting and that the position is of such importance that its continued vacancy is demonstrably detrimental to public health, safety or welfare.
Two actions were brought seeking Santiago's removal from the position of Police Director because he no longer resides in Trenton. One action was brought by a group of Trenton residents and the other by the Trenton City Council. The two actions were consolidated.
The complaint brought by the Trenton residents sought a declaration that the position of Police Director is vacant. The complaint brought by the City Council sought an order requiring Director Santiago to immediately resume residence in Trenton and directing Mayor Palmer to remove Santiago if he refuses to re-establish a Trenton residence. The City Council's complaint also asserted that Mayor Palmer had not waived the residency requirement as to Director Santiago in conformity with the 1987 amendment to the residency ordinance.
Defendants filed counterclaims. Defendants claimed that the Trenton residency ordinance is invalid because it does not comply with the State statute authorizing a municipality to require its officers and employees to be residents. Specifically, defendants asserted that the 1987 amendment to the ordinance, which authorizes the mayor, upon receipt of the previously described certification of the business administrator, to waive the residency requirement, does not conform with N.J.S.A. 40A:9-1.6 and -1.7, which prescribe the waiver provisions that a municipal residency ordinance must contain. In the alternative, defendants claimed that even if the Trenton residency ordinance is valid as applied to other officers and employees, its application to a department head such as the Police Director conflicts with the mayor's appointment powers under the Faulkner Act mayor-council form of government. N.J.S.A. 40:69A-31 to -67.2. In addition, defendants claimed that application of the residency ordinance to the position of Police Director would conflict with N.J.S.A. 40A:14-122.1, which prohibits any municipal residency requirement with respect to members of a police department.
The case was brought before the trial court by orders to show cause. The court rejected defendants' arguments that application of the residency ordinance to the position of Police Director conflicts with the mayor's appointment powers under the mayor-council form of government and with N.J.S.A. 40A:14-122.1. Although the court agreed with defendants' argument that the 1987 amendment to the Trenton residency ordinance does not conform with N.J.S.A. 40A:9-1.6 and -1.7, it concluded that the 1987 amendment is severable from the original 1972 residency ordinance. Based on these conclusions, the court determined that Santiago's continued occupancy of the position of Police Director violates the residency ordinance and that N.J.S.A. 40A:9-11 requires his immediate removal. The court delayed the effective date of its decision thirty days from March 25, 2008 "to provide the Mayor and the City time to effectuate an orderly transition."
Mayor Palmer and Director Santiago filed separate appeals from the judgment memorializing this decision and made emergent motions for a stay pending the outcome of the appeals. We granted a stay and accelerated the appeals on our own motion. We now consolidate the appeals.
On appeal, Mayor Palmer and Director Santiago do not challenge the trial court's conclusion that the 1987 amendment to the residency ordinance failed to conform with the provisions of N.J.S.A. 40A:9-1.6 and -1.7 governing waivers of municipal residency requirements. Furthermore, they have abandoned their argument that the residency ordinance, as applied to the position of Police Director, conflicts with N.J.S.A. 40A:14-122.1. However, they argue that application of the residency ordinance to the position of Police Director conflicts with a mayor's powers under the Faulkner Act mayor-council form of municipal government. ...