NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...