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Loigman v. Township Committee of the Township of Middletown

August 5, 2009

LARRY S. LOIGMAN, ESQ., JOSEPH MCGRATH, AND JAMES J. GRIFFIN, PLAINTIFFS-RESPONDENTS/ CROSS-APPELLANTS,
v.
THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MIDDLETOWN, THE TOWNSHIP OF MIDDLETOWN, DEFENDANTS-RESPONDENTS/CROSS-RESPONDENTS, AND BERNARD M. REILLY, ESQ., DEFENDANT-APPELLANT/CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-784-07.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 16, 2009

Before Judges Lisa, Sapp-Peterson and Alvarez.

This appeal pertains to the method by which compensation for municipal attorneys is authorized. Middletown Township (Township) authorized as part of its salary ordinance an annual salary of $50,000 as compensation for its "Township Attorney." A codified Township ordinance prescribes the duties of the Township Attorney. It requires the handling of "all legal matters" and specifically includes representation of the Township "in any litigation." The Township appointed defendant, Bernard M. Reilly, as "Municipal Attorney" for 2007, for the $50,000 authorized in the salary ordinance. By separate resolution, the Township appointed Reilly to serve as the "Township Attorney" for 2007, to handle on behalf of the Township, among other things, "litigation matters." This appointment was made as a professional service under the Local Public Contracts Law, see N.J.S.A. 40A:11-5(1)(a)(i), at an hourly rate of $125, with a total estimated annual expenditure of approximately $295,000. These sums would be in addition to the $50,000 salary.

Plaintiffs, taxpayers and residents of the Township,*fn1 brought this action challenging the validity of the compensation arrangements. They contended that all compensation for the person appointed to fill the statutorily mandated position of a municipal attorney, see N.J.S.A. 40A:9-139, must be established by ordinance, see N.J.S.A. 40A:9-165.

After rejecting defendants' arguments that the complaint should be dismissed for lack of standing, laches, and failure to comply with the entire controversy doctrine, the trial court agreed with plaintiffs' position. However, on equitable grounds, the court allowed the Township to enact a corrective ordinance ratifying nunc pro tunc the compensation arrangements that had been made by resolution for the Township Attorney position. The court ordered that if such an ordinance were not adopted, Reilly would be required to refund to the Township all sums paid to him in excess of $50,000 for 2007.*fn2 Although it is not part of this appeal, and we have not been furnished with a copy of the ordinance, the parties have informed us that such an ordinance was adopted. We are further advised that plaintiffs (or some of them) have instituted another action in the Law Division challenging the validity of that ordinance, which has been stayed pending the outcome of this appeal.

Reilly appeals.*fn3 He contends that the trial court erred in rejecting his standing, laches and entire controversy doctrine arguments. On the substantive issue, he argues that the trial court erred in holding that all compensation paid to an attorney appointed as the statutorily mandated municipal attorney must be authorized by ordinance and that any sums paid to that attorney in excess of the salary set by ordinance would have to be refunded. Plaintiffs cross-appeal. They contend that Reilly's arguments are moot in light of the corrective ratifying ordinance the Township adopted. Plaintiffs further argue that the trial court erred in allowing Reilly to keep sums in excess of $50,000 paid to him by the Township for services rendered in 2007.

On Reilly's appeal, we affirm in part and reverse in part. We agree with the trial court that, under the specific structure of the Township ordinance defining the duties of the "Township Attorney," it was improper to provide by resolution for additional compensation for litigation services, because those services were embraced within the duties prescribed by ordinance. We also agree with the remedy authorized by the trial court, allowing the passage of a corrective ratifying ordinance for 2007. However, we do not agree that the remedy authorized by the trial court was the only permissible remedy. In our view, it is permissible for an attorney who serves as the statutorily mandated municipal attorney to be paid a salary for that position, and also to be paid for additional services under the authority of a resolution adopted under the professional services exception to public bidding under the Local Public Contracts Law, N.J.S.A. 40A:11-1 to -51.

In light of our determination that the remedy authorized by the trial court and implemented by defendants was appropriate under the circumstances of this case, we reject plaintiffs' cross-appeal argument that sums paid in excess of $50,000 should be disgorged and refunded to the Township. Accordingly, we affirm on the cross-appeal.

Like the trial court, we reject out-of-hand Reilly's arguments regarding standing, laches and the entire controversy doctrine. These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

The Township's Municipal Charter authorizes the Township Committee to appoint persons to various positions, including "Municipal Attorney." Middletown Code ยง C2-4. Pursuant to that authority, but using different terminology, the Township enacted an ordinance, providing that "[a] Township Attorney (or firm of attorneys) shall be appointed annually and retained by the Committee within the limits of available ...


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