On appeal from Speaker of the New Jersey General Assembly.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 8, 2011 - Decided Before Judges Parrillo, Espinosa and Skillman.
J. Bradford McIlvain argued the cause for respondent (Archer & Greiner, P.C., attorneys; Mr. McIlvain and Natalie D'Amora, on the brief).
The opinion of the court was delivered by PARRILLO, P.J.A.D.
Appellant, Joseph Vas, a former member of the New Jersey General Assembly (Assembly), appeals the decision of respondent, Joseph Roberts, Jr., former Assembly Speaker, to suspend Vas's salary and benefits while still holding office, pending the outcome of indictments charging him with crimes of public corruption. Appellant claims respondent's unilateral action in withholding his constitutionally guaranteed salary was not legally authorized and is therefore null and void. Respondent counters that his action is not appealable under Rule 2:2-3(a)(2) because it was neither a final agency decision nor that of a state administrative officer within the meaning of the Rule and that, in any event, the imposition of the disciplinary measure was well within his discretionary power as the presiding officer of the Assembly.
The relevant facts are undisputed. Vas, who served as the mayor of Perth Amboy from 1990 to 2008, represented the nineteenth legislative district in the Assembly for three consecutive terms beginning with the 2004-2005 term and ending with the 2008-2009 term. Following a two-year investigation of public corruption and money laundering, on March 11, 2009, a state grand jury returned an eleven-count indictment against Vas charging him with crimes committed while mayor of Perth Amboy, including conspiracy, misconduct, pattern of official misconduct, theft, misapplication of government property, and tampering with public records. Two months later, on May 21, 2009, Vas was charged in a separate nineteen-count state grand jury indictment with additional crimes committed in his capacity as Perth Amboy mayor, including conspiracy, official misconduct, misapplication of entrusted property, financial facilitation of criminal activity, theft, and a host of other related crimes. The day before, on May 20, 2009, a federal grand jury indicted Vas on eleven counts, charging him with defrauding the public, misapplication of government funds, making illegal campaign contributions, and related crimes. A subsequent federal indictment, returned on July 21, 2009, added more charges related to violations of campaign contribution laws.
Following the July 23, 2009 arrest of forty-four other persons, including three New Jersey mayors and two New Jersey assemblymen, respondent, in his capacity as Speaker of the General Assembly, notified Vas by letter of July 29, 2009, that he ordered the suspension of Vas's salary and benefits. In its entirety, the letter states:
The events that have transpired over the last few months and days, including the recent arrests and allegations of public corruption, have damaged public confidence in our governmental institutions.
This letter serves to advise you that pursuant to the advice of Legislative Counsel I have ordered the Assembly Clerk to suspend payment of your salary and benefits, effective immediately. Any member similarly charged in the future will be subject to the same course of action. Additionally, I renew my call for you to resign your position with the General Assembly.
This action, of course, will be consistent with guarantees of due process and subject to the final disposition of the criminal justice process and the procedures of the General Assembly.
Vas's counsel responded by letter of August 4, 2009, challenging respondent's "unilateral action" as "unauthorized and illegal" and requesting that Vas's salary and benefits be restored. The Speaker replied the next day by letter denying the request and explaining:
[U]pon the advice of the Legislative Counsel, these actions are entirely within the powers invested in me as Speaker of the General Assembly.
As I indicated in my July 29, 2009 letter to Assemblyman Vas, recent events, including the Assemblyman's indictment in March, have undermined the public's trust in our governmental institutions. My decision to suspend his salary was motivated by my desire to restore public confidence, particularly in the Legislature.
Prior to taking any action, I consulted with Legislative Counsel regarding the authority of the Speaker to implement certain disciplinary actions against members. Legislative Counsel assured me that among the inherent powers of the Presiding Officer of the General Assembly is the power to suspend the compensation of members for good cause. Legislative Counsel further indicated that the facts in this particular circumstance constitute a valid reason for the suspension. I have included a copy of Legislative Counsel's opinion on this matter for your reference.
My decision to suspend Assembly Vas' salary and benefits stands.
The letter from legislative counsel to respondent, dated July 29, 2009, describes the powers and duties of the Speaker as prescribed by statutes and Assembly rules as well as the procedures for disciplining a member of the Assembly codified in statutes and rules, none of which explicitly authorize respondent's action. However, relying on the inherent powers of a legislative body's presiding officer and Errichetti v. Merlino, 188 N.J. Super. 309 (Law Div. 1982), legislative counsel expressed his opinion that the Speaker has the authority to suspend, not terminate, the compensation of a member for good cause (in this case intimating a sense of the General Assembly that it is in the public interest), subject to affording the member a fair hearing and, of course, ultimately upon such further review as the General Assembly deems appropriate.
This appeal follows, in which appellant challenges the Speaker's action as violative of his constitutional right to a salary while sitting, and unauthorized by either statute or Assembly rule.
At the outset, we address the appealability of the Speaker's action and this court's jurisdiction. Prior to the adoption of the New Jersey Constitution of 1947, "persons aggrieved by action or inaction of state or local administrative agencies could seek review by applying for one of the prerogative writs." Pascucci v. Vagott, 71 N.J. 40, 51 (1976). The 1947 Constitution superseded the prerogative writs "and, in lieu thereof," afforded "review, hearing and relief . . . in the Superior Court, on terms and in the manner provided by rules of the Supreme Court, as of right." N.J. Const. art. VI, § 5, ¶ 4. Accordingly, "[i]n New Jersey, ...