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City of Wildwood v. Demarzo

February 22, 2010


On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-302-07.

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



Argued November 10, 2009

Before Judges Fuentes, Gilroy and Simonelli.

Plaintiff, City of Wildwood, is a municipality organized under the Walsh Act commission form of government, N.J.S.A. 40:70-1 to N.J.S.A. 40:76-27. Defendant, Gary DeMarzo, was elected to serve as one of three commissioners of the City's governing body. DeMarzo took the oath of office as a City Commissioner while on an unpaid leave of absence from his other municipal position as a Wildwood police officer.

The parties agree, and the trial court recognized, that these two municipal positions are incompatible under the common law doctrine of incompatibility. Despite this legal impediment, the trial court denied the City's petition to compel DeMarzo to choose which municipal position he wanted to retain and which position he would forgo. Instead, the court crafted a series of judicially imposed restrictions upon DeMarzo's conduct as a Commissioner and enjoined him from involving himself in areas the court determined would create a conflict between his public responsibilities as a Commissioner and his interests as a police officer.

The City appeals from the trial court's decision arguing that the restraints on DeMarzo's conduct do not adequately address the inherent conflicts arising from the incompatibility of the two offices. We agree with the City's position and reverse.

The trial court erred in permitting DeMarzo to continue to hold two incompatible public offices in the same municipality. The court's attempts at counteracting the myriad of conflicts arising from such incompatibility by restricting DeMarzo's conduct as a city commissioner impermissibly limited the statutory authority conferred upon such office by the Legislature under the Walsh Act, and deprived the citizens of Wildwood of an independent City Commissioner capable of managing the municipality's business unfettered by personal conflicts arising from his position as a police officer.



Before we review the particular facts of this case, we will first describe in some detail the City's form of government. We do this to demonstrate the unfeasibility of the restraints imposed by the trial court upon DeMarzo as he attempted to discharge his duties as one of three municipal commissioners.

As noted, the City's municipal government is organized under the Walsh Act, denoted by the Legislature as "the commission form of government law." N.J.S.A. 40:70-1. Under this form of government, the municipal governing body consists of a board of commissioners having "all the executive, administrative, judicial*fn1 and legislative powers and duties heretofore had and exercised by the mayor and city council and all other executive or legislative bodies in such municipality, and shall have complete control over the affairs of such municipality." N.J.S.A. 40:72-2.

Unlike the conventional paradigm of governance that adheres to the doctrine of separation of powers, the commission form of government does not separate the legislative function of a city council from the executive authority conferred upon a chief executive like a mayor. See Eggers v. Kenny, 15 N.J. 107, 120-21 (1954) (noting that "[w]hile the separation doctrine is applicable to the Federal Government and to our State Government, it generally has no applicability to our city governments"). Stated differently, the commission form of government runs counter to our Republic's well-established model of governance by vesting the board of commissioners with complete authority over all municipal affairs, except the municipal court. Bd. of Trustees v. Union City, 112 N.J. Super. 484, 490-91 (Ch. Div. 1970), aff'd, 116 N.J. Super. 186 (App. Div. 1971).

The public policy underpinning this concentration of power into a unitary municipal governing body was best expressed by the Court in Grogan v. DeSapio, 11 N.J. 308, 317, 322 (1953):

The paramount philosophy of the Walsh Act was to promote efficient government upon the premise that it would be better induced by holding the members of the commission to an individual responsibility rather than party responsibility.

In the application of these principles we must therefore consider the initial purposes of the Walsh Act. These were to centralize municipal powers in the board of commissioners, a governing body to be composed of qualified men divorced from partisan obligations, and to provide economical government. As we have demonstrated[,] these purposes were not merely within the theory and spirit of the concept of the commission form of government, but were expressed in statutory language that has remained unaltered by the Legislature from 1911 to the present time. Implementing these altruistic purposes were the provisions of the statute providing for specific departments and allocation thereto of "appropriate" powers and duties by the commissioners.

The number of commissioners who serve on a board may be three or five, depending on the municipality's population. N.J.S.A. 40:72-1. Here, because Wildwood has less than twelve thousand inhabitants, the board of commissioners consists of three members. Ibid. The board of commissioners is structured and divided into as many as five, but no less than three, administrative departments. N.J.S.A. 40:72-4. These departments compartmentalize municipal authority by establishing jurisdictional limits and areas of responsibility.

The executive, administrative, judicial and legislative powers, authority and duties in such municipality shall be distributed into and among five departments, except that in municipalities having but three commissioners, three departments shall be designated and provided by the consolidation of the first and third departments and the fourth and fifth departments as follows:

1. Department of public affairs.

2. Department of revenue and finance.

3. Department of public safety.

4. Department of public works.

5. Department of parks and public property. [N.J.S.A. 40:72-4 (emphasis added).]

The jurisdiction or scope of authority for each of the departments is determined by the board of commissioners. N.J.S.A. 40:72-5. This occurs at the first regular meeting after the election of the board. N.J.S.A. 40:72-6. At this organizational meeting, the newly elected commissioners designate by majority vote one commissioner to be director of the department of public affairs, one commissioner to be director of revenue and finance, one to be director of the department of public safety, one to be director of the department of public works, and one to be director of the department of parks and public property, except that upon the organization of a board of three commissioners, but three departments shall be designated, as hereinbefore in section [N.J.S.A.] 40:72-4 of this title provided and but three directors voted therefor. Such designation may be changed whenever it appears that the public service would be benefited thereby.

The mayor may be designated director of such department as a majority of the members of the commission shall determine. [Ibid.]

A commissioner is thus: (1) a legislator when he or she proposes and votes on municipal legislation; (2) an executive when he or she hires and supervises the staff who perform the day-to-day operations of the department assigned to him or her by the board; and (3) a quasi-judicial officer when the board sits as an administrative tribunal to adjudicate disputes ...

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