September 5, 2013
RICHARD ADAIR, Plaintiff-Respondent,
CITY OF WILDWOOD, Defendant-Respondent, and GARY DEMARZO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically January 4, 2013
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-351-10.
Paul L. Kleinbaum argued the cause for appellant, (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys; Sidney H. Lehmann, of counsel and on the brief; Mr. Kleinbaum and Marissa A. McAleer, on the brief).
Colin G. Bell argued the cause for respondent Richard Adair (Hankin Sandman & Palladino, attorneys, joined in the brief of respondent City of Wildwood). Matthew T. Priore argued the cause for respondent City of Wildwood (Mr. Priore, on the brief).
Before Judges Ashrafi and Hayden.
Defendant Gary DeMarzo appeals from a May 26, 2010 Law Division order requiring him to resign from either his position as a police officer or as an elected Commissioner. We affirm.
The controversy in this case originated from earlier litigation between DeMarzo and the City of Wildwood. The details are contained in City of Wildwood v. DeMarzo, 412 N.J.Super. 105 (App. Div. 2010), and need not be repeated here. Briefly stated, DeMarzo, a police officer in Wildwood, was elected commissioner in 2007 under that municipality's commission form of government. See N.J.S.A. 40:70-1 to 40:76-27. DeMarzo was sworn in while on an unpaid leave of absence from the police force. Contending that the two positions were incompatible under the common law, Wildwood sued to compel DeMarzo to choose which position he would retain. The trial judge agreed that the common law doctrine of incompatibility applied but fashioned a series of orders restricting DeMarzo's actions as a commissioner. The orders enjoined him from participating in any areas that created an inherent conflict between his responsibilities as a commissioner and his interests as a police officer.
Wildwood appealed these orders. We found that the doctrine of incompatibility applied to DeMarzo holding two positions. Jones v. MacDonald, 33 N.J. 132, 135 (1960) (noting that "[p]ublic policy demands that an office holder discharge his duties with undivided loyalty, " and that "[t]he doctrine of incompatibility is intended to assure performance of that quality"). We reversed the trial court's order, explaining:
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 police officer.
Under the common law, the office holder's acceptance of another incompatible office automatically vacated the first office. DeFeo v. Smith, 17 N.J. 183, 190 (1955). However, we allowed DeMarzo to choose which office he wished to retain. We gave him twenty days from the date of the February 22, 2010 decision to "communicate his choice in writing directly to the board of commissioners within the specified timeframe." DeMarzo, supra, 412 N.J.Super. at 125. We did not retain jurisdiction.
While the appeal to this court was pending, Wildwood's Mayor and the other Commissioner had been recalled and DeMarzo and two political allies had been elected commissioners. DeMarzo became the mayor. Due to financial considerations, Wildwood drew up a layoff plan, which included laying off five police officers. On March 9, 2010, DeMarzo wrote to another Commissioner, requesting that he be placed on a "voluntary layoff" program. Wildwood submitted its layoff plan with DeMarzo listed as one of the police officers to be laid off. On April 12, 2010, the State and Local Operations of the New Jersey Civil Service Commission approved the entire layoff plan. Wildwood's personnel director wrote DeMarzo on May 7, 2010, informing him that he would be laid off effective June 21, 2010.
On May 24, 2010, Richard Adair, a Wildwood resident, a taxpayer, and a lieutenant in the Wildwood Police Department, filed an application for an order to show cause and complaint against Wildwood and DeMarzo. He alleged that, while still holding both offices, DeMarzo had continued to be involved in police, personnel, and collective bargaining matters, and claimed that the layoff plan would not cure DeMarzo's underlying conflict of interest. Adair's complaint sought to compel DeMarzo to immediately choose between serving as commissioner or as a police officer, to enjoin him from further action in either capacity until he makes such choice, and to enjoin Wildwood from allowing him to take action in either capacity until he makes his choice.
At the order to show cause hearing, DeMarzo argued first that the court did not have jurisdiction over the plaintiff's case, as DeMarzo had filed a petition for certification with the Supreme Court. He contended that Adair should seek relief either from the Appellate Division or the Supreme Court. DeMarzo asserted that Adair should have challenged the voluntary layoff plan at the Civil Service Commission or brought a mandamus action to compel Wildwood to enforce the Appellate Division order. Additionally, DeMarzo contended that plaintiff failed to demonstrate irreparable harm as he had continued to abstain from matters involving the police department.
DeMarzo's chief contention was that the layoff plan, duly approved by the State, complied with the Appellate Division decision. The distinction, he noted, between a layoff and a resignation was "very miniscule and in no way affect[s] the plaintiff's rights." Furthermore, the opinion did not specify how he should be relieved of his position as a police officer. DeMarzo reported that he did not simply resign because a layoff allowed him to retain certain rights to move laterally over to other police departments.
Judge Valerie Armstrong determined that Adair had standing to bring his suit as a taxpayer and a citizen who had a specific interest in the matter. The judge noted it was "clear that the other two sitting commissioners are not going to seek enforcement, " and that Adair's application was a "collective response" from DeMarzo and the City" failing to enforce the Appellate Division's decision, which benefitted the citizens.
Next, Judge Armstrong found that the trial court had jurisdiction over the matter. She added:
The Appellate Division reached a final decision. It specifically did not retain jurisdiction. The Court has been advised that certification has been applied for from the Supreme Court by Mr. DeMarzo. The Supreme Court has not yet granted certification. . . . There is no stay of the Appellate Division decision. . . . I would note with regard to the jurisdictional question, court Rule 2:9-1 is clear that when a petition for certification is pending the trial court still has jurisdiction to enforce judgments and orders.
Judge Armstrong found that DeMarzo's voluntary layoff did not meet the intent of the Appellate Division's decision because the common law prohibited a leave of absence for a police officer serving a term of elective office, particularly in a commission form of government. Pointing out that the Appellate Division had found that serious conflict of interest problems had arisen during DeMarzo's tenure in both positions, she explained:
[T]he Appellate Division discussed certain problematic scenarios which could be encountered with a police officer, albeit one on a leave of absence occupying the office of a . . . commissioner. And quite frankly, had the Appellate Division contemplated anything less than a total vacating; that is, resignation of one office or the other, it clearly would have so provided.
Furthermore, the judge found, DeMarzo's plan did not comply with the order in any event because the layoff from the police force was not scheduled until June 21, 2011, three months after the twenty-day deadline.
The judge determined that the Crowe v. DeGioia standards for injunctive relief were met. Emphasizing the ongoing conflicts of interest, the judge referred to the provisions of the initial trial court order, which prohibited defendant from engaging in matters regarding employees' contracts, collective bargaining, and the police department. The judge then pointed to recent documents showing that DeMarzo had communicated in writing with the police union regarding contract negotiations in direct violation of the order.
Judge Armstrong concluded:
I think liberties were taken with the . . . interpretation of the literal language of the Appellate Division's decision and Mr. DeMarzo did not seek a clarification . . . or reconsideration . . . . He requested a stay and that wasn't granted. This situation, in this Court's opinion, needs to be cured immediately. The Appellate Division viewed DeMarzo's incompatible dual office holding as being contrary to the public's interest. Every day that goes by without this situation being completely cured is contrary to the public interest and is a continuing violation of the Appellate Division's order.
The judge restrained DeMarzo from taking any actions as mayor or police officer until he had chosen one of the two positions. The judge ordered him to provide written communication of his choice to the other commissioners within the day, or else he would be considered to have vacated his position as police officer. DeMarzo later wrote a letter to the Municipal Administrator, dated May 26, 2010, stating, "I am choosing to retain my elected office as Commissioner and to continue to serve the people of Wildwood as Mayor." This appeal followed.
Defendant argues on appeal that the trial judge did not have jurisdiction to hear Adair's suit as he was seeking to enforce an order for which a petition for certification was pending before the Supreme Court. At a minimum, defendant asserts, the enforcement action should have been brought before the Appellate Division, which issued the order. Further, defendant contends that the voluntary layoff was approved by the State and satisfied the Appellate Division's order. Finally, defendant argues that because he is no longer an elected official there is no longer any incompatibility preventing him from being placed on the special reemployment list.
We find these arguments to be without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially based upon the trial judge's oral opinion. We add only the following brief discussion.
We reject defendant's contention that Adair lacked standing to bring this suit. New Jersey jurisprudence has traditionally applied a more liberal approach to standing than under the U.S. Constitution. People for Open Gov't v. Roberts, 397 N.J.Super. 502, 509 (App. Div. 2008) (citing Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 101 (1971)). Our standard, which seeks to prevent involvement of "total strangers or casual interlopers, " sets a low threshold. Ibid. (quoting Triffin v. Somerset Valley Bank, 343 N.J.Super. 73, 81 (App. Div. 2001)). Nevertheless, "[i]n order to possess standing, the plaintiff must have a sufficient stake in the outcome of the litigation, a real adverseness with respect to the subject matter, and there must be a substantial likelihood that the plaintiff will suffer harm in the event of an unfavorable decision." N.J. Citizen Action v. Rivera Motel Corp., 296 N.J.Super. 402, 409-10 (App. Div. 1997), dismissed as moot, 152 N.J. 361 (1998). A plaintiff's private interest in litigation may be sufficient to establish standing when it coincides with a great public interest. Roberts, supra, 397 N.J.Super. at 510 (quoting Salorio v. Glaser, 82 N.J. 482, 491 (1980)). Adair, as a taxpayer, certainly had standing to bring an action seeking to enforce the citizens' rights to unbiased elected officials.
We also reject defendant's claim that the trial court did not have jurisdiction to hear Adair's suit because of the pendency of DeMarzo's petition for certification before the Supreme Court. Once an appeal or a petition for certification has been filed, the lower court is generally divested of jurisdiction, but "[t]he trial court  shall have continuing jurisdiction to enforce judgments and orders pursuant to R. 1:10 and as otherwise provided." R. 2:9-1(a). Adair was not seeking to challenge the order or modify it, but enforce it, and thus prevent the ongoing violation of Wildwood's citizens' right to unbiased elected officials. There is no dispute that Wildwood had the ability to enforce the order even while the petition for certification was pending. Ibid. In the absence of Wildwood seeking to enforce the order, Adair had standing as a citizen of Wildwood to request the court to enforce the order that vindicated the rights of Wildwood's citizens to an "independent City Commissioner capable of managing the municipality's business unfettered by personal conflicts . . . ." DeMarzo, supra, 412 N.J.Super. at 109. To hold otherwise would allow the ongoing violations of our order to continue unabated.
Most importantly, we agree with the trial judge that DeMarzo did not comply with our clear and straightforward order. First, he did not extricate himself within twenty days from the conflicts caused by his dual positions. Rather, he arranged to be put in the layoff plan, which was subject to approval of the Civil Service Commission and could be rescinded at any time prior to its effective date. Even at the time of the hearing, he was still on leave from the police force, since his layoff date was June 21, 2010.
Further, by volunteering to be laid off, DeMarzo arranged to be put on a "special reemployment" list. See N.J.A.C. 4A:8-1.1. Special reemployment rights allow an individual to retain his previous title in the same municipality, take precedence over all other reemployment lists, and remain on the special reemployment list indefinitely. The voluntary layoff allowed DeMarzo to have priority over other officers seeking reemployment for an unlimited duration. Moreover, as the most senior member of the police force on the special reemployment list, DeMarzo would be the first person eligible for any available position. See N.J.A.C. 4A:8-2.2(a), -2.3(c)(1), -2.3(c)(3), -2.4(b). Such an arrangement continues the incompatibility that led to our order in the first instance. Whether on an unpaid leave of absence or as first-in-line on the special reemployment list, DeMarzo's persistent involvement with the police force continued to deprive the citizens of Wildwood of "an independent City Commissioner capable of managing the municipality's business unfettered by personal conflicts . . . ." DeMarzo, supra, 412 N.J.Super. at 109.