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Donovan v. Bergen County Bd. of Chosen Freeholders

Superior Court of New Jersey, Law Division, Bergen

September 27, 2012

KATHLEEN A. DONOVAN, County Executive of Bergen County and EDWARD TRAWINSKI, County Administrator of Bergen County, Plaintiffs,
v.
BERGEN COUNTY BOARD OF CHOSEN FREEHOLDERS and JOHN D. MITCHELL, Freeholder Chairman, Defendants

Approved for Publication May 30, 2014.

Thomas P. Scrivo for plaintiffs ( McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys).

Leonard E. Seaman, III for defendants ( Law Offices of Richard Malagiere, attorneys).

OPINION

Page 1221

[436 N.J.Super. 93] Civil Action

TOSKOS, J.S.C.

Plaintiffs, Kathleen Donovan, County Executive of Bergen County, and Edward Trawinski, County Administrator of Bergen County (collectively, " plaintiffs" ), filed this action in lieu of prerogative writs against defendants, Bergen County Board of Chosen Freeholders (" Board" ) and Board Chairman, John D. Mitchell (collectively, " defendants" ). This case presents two issues regarding the separation of powers between the county executive and board of freeholders in a county executive form of government. First, whether the county executive or the board of freeholders has the power to appoint the municipal accountant for the annual audit. Secondly, to what extent can a county executive's appointed designee participate in meetings of the Board.

On February 29, 2012, the Board held a meeting to create the agenda for the upcoming public meeting. During this meeting, Freeholder Felice requested that the

Page 1222

question of appointing Steven Weilkotz of Ferraioli, Weilkotz, Cerulla & Cuva (" Weilkotz" ) as the municipal accountant for the county audit be placed on the agenda for the March 7, 2012 public meeting. Freeholder Hermansen stated that he would not consent to the appointment issue being placed on the agenda. In addition, Trawinski, attending the meeting as the designee of Donovan, also objected. After a [436 N.J.Super. 94] discussion, Chairman Mitchell stated that the Board would not place the municipal accountant appointment question on the agenda for March 7, 2012.

At the March 7, 2012 Board work session, Felice made a motion to place a resolution awarding the municipal audit contract to Weilkotz on the agenda for the public meeting that evening. Trawinski objected to the motion explaining that the appointment of a municipal accountant for the annual audit is the prerogative of the county executive. Mitchell refused to allow the Trawinski to continue to address the Board during the work session. In the end, the appointment of Weilkotz as municipal accountant was placed on the agenda for the March 7, 2012 public meeting as Resolution #330-12 (" #330" ).

At the public meeting later that evening, the Board raised the adoption of Resolution #330. The Resolution provided that " the County of Bergen [shall] enter into an agreement with Steven D. Weilkotz, CPA . . . to perform the services of annually auditing the books, accounts and financial transaction of the County of Bergen, pursuant to N.J.S.A. 40A:5-4 in accordance with their proposal . . . ." Trawinski requested to be recognized to address the Board regarding Resolution #330. Mitchell refused to recognize Trawinski, but allowed the freeholders to comment on the Resolution. Freeholders Ganz, Hermansen, and Driscoll objected to Chairman Mitchell silencing the County Administrator Trawinski. The Resolution was passed bye a vote of four to three.

Plaintiffs filed an action in lieu of prerogative writs requesting an order: (a) invalidating Resolution #330, which purports to appoint a municipal accountant for the annual audit; (b) declaring Bergen County Administrative Code Article 2.1(i) null and void; and (c) compelling the Board to permit the County Executive or her designee to fully participate in all Board meetings.

The Board filed a counterclaim seeking an order compelling Donovan to execute a contract with Weilkotz as approved by the Board in Resolution #330. The Board also seeks a declaratory judgment that (a) the county executive does not have the right to [436 N.J.Super. 95] appoint a designee to exercise her statutory right to participate at Freeholder meetings and (b) that the participation of the county administrator at freeholder meetings be limited to responding to inquiries from the Board.

Power to Appoint Municipal Accountant for Annual Audit

The Local Fiscal Affairs Law (" L.F.A.L." ), N.J.S.A. 40A:5-1 to 50 requires that the governing body of each county appoint a registered municipal accountant to conduct an annual audit. Specifically, N.J.S.A. 40A:5-4 provides that:

The governing body of every local unit shall cause an annual audit of its books, accounts and financial transactions to be made and completed within six months after the close of its fiscal year.
. . . .
The governing body of every local unit shall employ a registered municipal accountant of New Jersey to prepare its annual audit or it shall enter into an agreement with the Director of the Division of Local Government Services for

Page 1223

an annual audit to be made by qualified employees of the division. . . .
[ N.J.S.A. 40A:5-4.]

While the L.F.A.L. does not define the term " governing body," the Bergen County Administrative Code provides that the Board has the power to appoint a municipal accountant. Article 2 of the code lists the powers of the freeholders and specifically Article 2.1(i) states that the Board shall

[a]ppoint annually a registered municipal accountant of New Jersey to perform an independent audit of the County's books, accounts and financial transactions to perform such other services as the Board directs, specifically with regard to the review, modification, approval and operation of the budget; and to perform an independent financial, compliance, performance or operational audit of any agency of the County.

The Board contends that Article 2.1(i) is controlling and conforms to the legislative, investigative, and budget powers granted to a freeholder board by the Optional County Charter Act, N.J.S.A. 40:41A-1 to 149 (" Charter Act" ). Donovan on the other hand argues that Article 2.1(i) is ultra vires and a ...


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