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City Council of City of Orange Township v. Edwards

Superior Court of New Jersey, Appellate Division

June 19, 2018

CITY COUNCIL OF THE CITY OF ORANGE TOWNSHIP, Plaintiff-Respondent,
v.
WILLIS EDWARDS III, Defendant-Appellant.

          Argued May 2, 2018

          On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1805-13.

          Michael A. Cifelli argued the cause for appellant (Florio Kenny Raval, LLP, attorneys; Michael A. Cifelli and Edward J. Florio, of counsel and on the briefs; William J. Maslo, on the briefs).

          Robert L. Tarver, Jr., argued the cause for respondent (Law Offices of Robert L. Tarver, Jr., attorneys; Jeff Thakker, of counsel and on the brief; Robert L. Tarver, Jr., on the brief).

          Before Judges Alvarez, Currier, and Geiger.

          OPINION

          CURRIER, J.A.D.

         In this matter, we consider whether the appointment of defendant Willis Edwards III to the position of Deputy Business Administrator in the City of Orange Township (City) was unlawful and whether defendant knowingly remained in the unauthorized position. If so, we must determine whether disgorgement of defendant's salaries is the appropriate remedy for the illegal action.

         We conclude, upon review of the record and applicable principles of law, that the appointment was ultra vires because the mayor lacked the authority to place defendant in the position. As defendant was aware that serving in the position was a violation of state and local law, he did not act in good faith in remaining in the position and collecting a salary. Therefore, we are satisfied that the equitable remedy of disgorgement is appropriate under these circumstances. We affirm.

         In July 2012, the mayor of the City[1] appointed defendant to the position of Acting Business Administrator. The City's ordinances permitted defendant to hold the position for a term not to exceed ninety days; the appointment did not require the advice and consent of City Council. At the end of defendant's ninety-day term, the mayor appointed him to the full-time position of Business Administrator, which did require the advice and consent of City Council.

         The municipal government of the City is organized as a "Mayor-Council Plan D" form of government under the Faulkner Act, N.J.S.A. 40:69A-1 to -210. This Act, in conjunction with City ordinances, requires persons appointed to the position of a department director, such as the Business Administrator, receive the advice and consent of City Council. On October 2, 2012, plaintiff, City Council of the City of Orange Township (plaintiff or City Council), voted against confirmation of defendant to the position. The following day, the mayor appointed defendant as Deputy Business Administrator, setting a yearly salary of $105, 000.[2]

         City Council objected to the appointment. A letter to the mayor on October 16, 2012 memorialized City Council's objections and informed him defendant's term as Acting Business Administrator had expired and the Council had not confirmed him as Business Administrator. The mayor had no authority to appoint a deputy; only the department head had that authority. Nevertheless, defendant continued in the position, signing official documents as the Business Administrator and collecting a salary.

         In March 2 013, plaintiff presented an Order to Show Cause and verified complaint against the mayor[3] and defendant, seeking to enjoin defendant from serving as Deputy Business Administrator. A March 8, 2013 order required defendant and the mayor to appear and show cause why the court should not issue a preliminary injunction. Defendant filed an answer and third-party complaint against five City Council members in their individual and official capacities.

         After oral argument, the court issued an order on April 18, 2013, stating:

1. [Defendant] shall not perform any of the functions of Business Administrator or Acting Business Administrator after May 30, 2013, unless appointed to those positions through the advice and consent of City Council.
2. On or before the date of May 30, 2013, the City of Orange Township shall appoint a Business Administrator or Acting Business Administrator to head the Department of Administration as required by Statute and Ordinance.
3. The City shall be required to comply with . . . N.J.S.A. 40:69A-43.1 and 43.2 in
the appointment of any Deputy Director and any such appointment shall be made by the Director of the Department and the salary of that Deputy must be approved by the City Council.
4. The Counterclaim and Third Party Complaint filed by [d]efendant . . . shall be dismissed in its entirety without prejudice.

         As a result of this order, defendant subsequently left the position of Deputy Business Administrator and the mayor appointed him Chief of Staff.[4]

         Defendant and the mayor filed motions for reconsideration, which were granted by a different judge than had considered the Order to Show Cause. On February 28, 2014, in an oral decision, the second judge found it improper for his predecessor to have issued injunctive relief without hearing testimony. He therefore vacated paragraphs one and two of the April 2013 order, and amended paragraph four to reinstate one count of the third-party complaint.

         Following the ruling, plaintiff's counsel queried: "Judge, just so that I'm clear and I get this, . . . is it the [c]ourt's intention by vacating [c]ounts 1, 2 and 4 that Mr. Edwards can now serve as the deputy business administrator because . . . that was the thrust of the initial complaint." The judge responded: "The effect of the order vacating [the prior] order does just that. The factual effect of it, you know, remains to be executed. All I did was vacate the order based upon the reasons I stated." (Emphasis added). Following the issuance of this order, defendant re-assumed the position of Deputy Business Administrator.

         Trial[5] was scheduled for January 4, 2016 before Judge Christine A. Farrington. Defendant resigned from the position of Deputy Business Administrator on December 31, 2015. As a result, he ...


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