CITY COUNCIL OF THE CITY OF ORANGE TOWNSHIP, Plaintiff-Respondent,
WILLIS EDWARDS III, Defendant-Appellant.
May 2, 2018
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
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).
Judges Alvarez, Currier, and Geiger.
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.
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
2012, the mayor of the City 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.
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,
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.
March 2 013, plaintiff presented an Order to Show Cause and
verified complaint against the mayor 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.
oral argument, the court issued an order on April 18, 2013,
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
4. The Counterclaim and Third Party Complaint filed by
[d]efendant . . . shall be dismissed in its entirety without
result of this order, defendant subsequently left the
position of Deputy Business Administrator and the mayor
appointed him Chief of Staff.
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.
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 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 ...