Belleville Tp. v. Fornarotto

• Decision Date: 11 August 1988
• Citation: 228 N.J.Super. 412,549 A.2d 1267
• Parties: TOWNSHIP OF BELLEVILLE and Michael P. Pizzi, Mayor of the Township of Belleville, Plaintiffs, v. Joseph T. FORNAROTTO, Defendant.
• Court: New Jersey Superior Court

Page 412

228 N.J.Super. 412

549 A.2d 1267

TOWNSHIP OF BELLEVILLE and Michael P. Pizzi, Mayor of the Township of Belleville, Plaintiffs, v. Joseph T. FORNAROTTO, Defendant.

Superior Court of New Jersey, Law Division Essex County.

Decided Aug. 11, 1988.

Frank J. Cozzarelli, Belleville, for plaintiff Tp. of belleville.

Gerald E. Fusella, Belleville, for plaintiff Mayor Michael P. Pizzi (Fusella, Murphy & Sciarrillo, attorneys).

Marvin Waxman, Rutherford, for defendant Joseph T. Fornarotto.

VILLANUEVA, J.S.C.

Plaintiff township and its mayor bring this action, in lieu of prerogative writs, seeking a declaratory judgment whether defendant, who serves as one of the township's commissioners and also is a civil service employee in one of the township departments, holds incompatible positions within the purview of the doctrine of incompatibility of offices.

Defendant contends that plaintiff, Michael P. Pizzi, lacks standing as mayor and township commissioner to bring this action as well as to join the Township of Belleville as a plaintiff because this action was not authorized by a resolution of the township commission. Defendant also contends that his duties as a township commissioner do not clash with nor control his activities as a housing inspector.

This declaratory judgment action raises the following issues:

1. Are the mayor and the township proper parties?

2. Is defendant holding dual public offices or positions which are incompatible.

3. If they are incompatible, what relief should be granted?

(a) Does the acceptance of the elected office of commissioner ipso facto vacate the office of housing inspector; or

(b) should the court declare the second office assumed, as commissioner, vacated; or

(c) should defendant be permitted to elect which office to vacate; and

(d) is defendant entitled to retain such salary, raises and benefits received while holding dual offices?

The court holds that defendant is holding dual public positions which are incompatible. Defendant is entitled to retain the benefits that he received while holding dual positions since there is no evidence of bad faith on his part. The court will hold an immediate hearing to determine which office must be vacated. Factual Background.

Plaintiff Michael P. Pizzi is the mayor of the Township of Belleville and also serves as the director of the Department of Public Safety. Defendant, Joseph T. Fornarotto was appointed as a housing inspector of the township on September 3, 1985, and he continues in that position. On May 5, 1987, he was elected as a commissioner of the township and took his oath of office at an organizational meeting of the governing body on May 19, 1987.

Before the election, defendant solicited an opinion from George H. Bloom, Jr., Supervisor, Election Administration of the New Jersey Department of State, who advised "it appeared" that he need not give up his position as a housing inspector if elected to the governing body.

When the board of commissioners organized after the election of May 5, 1987, defendant was named director of the Department of Public Affairs and Commissioner Vincent J. Frantantoni was named director of the Department of Parks and Public Property, in which department defendant was employed as a housing inspector.

Shortly after taking office, Commissioner Frantantoni requested a legal opinion from the law department of the township as to whether defendant's election as a township commissioner created a conflict of interest since defendant also served as a housing inspector. The law department opined that the employee position of housing inspector and the elected position of township commissioner were incompatible.

Thereafter, Deputy Director William M. Connolly of the New Jersey Department of Community Affairs, Division of Housing and Development informed the Belleville township attorney that, with respect to the enforcement or administration of inspection laws by the Department of Community Affairs, Fornarotto was not in conflict of interest by holding both positions.

Defendant sought the opinions of two attorneys, Robert C. Gruhin and Marvin Waxman (defendant's present attorney), both of whom rendered written opinions to the Belleville township attorney that there was no incompatibility in the two offices.

In response to an inquiry from Gabriel Naggiola, a Belleville citizen, the assistant deputy public advocate of the Division of Public Interest Advocacy, Department of the Public Advocate of the State of New Jersey informed the citizen, by letter dated June 27, 1988, that the two positions held by Commissioner Fornarotto are incompatible. The director of the Department of the Public Advocate has informed the court that this letter was prepared in response to a citizen inquiry for informational purposes only. It was not prepared or designed for litigation nor was the department aware that this letter would be submitted in conjunction with any pending litigation. Unlike the Attorney General's office, the Department of the Public Advocate does not render official opinions but merely seeks to respond to questions from the public about matters relating to the public interest. Therefore, this court gives no weight or consideration to that opinion.

Because of the alleged incompatibility of offices, plaintiffs have demanded that defendant make an election concerning which position he wishes to retain, but he has refused to comply. Furthermore, the director of the department in which he is employed refuses to terminate defendant's employment.

Status of Mayor and Township as Parties.

A commission form of government, under which Belleville is organized pursuant to N.J.S.A. 40:72-1 et seq., vests all powers in a five-member board of commissioners. N.J.S.A. 40:72-2. Although the mayor presides at all meetings, his only other authority is to supervise all departments and report to the board, for its action, all matters requiring the attention of the board or any department. N.J.S.A. 40:72-11.

The township attorney advised the mayor and all commissioners, by letter dated June 27, 1987, that before the instant action could be instituted, it would be necessary for the commissioners to vote to authorize this law suit. Notwithstanding that the commissioners declined to adopt such a resolution, this lawsuit was instituted by, and on behalf of plaintiff as mayor and purportedly on behalf of the township.

The commissioner of public safety cannot, under the guise of his executive power as mayor, direct the township attorney to prosecute this action without the authority of a resolution by the entire board. See Slurzberg v. Bayonne, 29 N.J. 106, 148 A.2d 171 (1959). In a municipality governed by a commission form of government, the executive, administrative, legislative and judicial powers vested in a department are possessed by the designated commissioner as director of that department and the mayor may not exercise all the power and authority of all departments. Durkin v. Ellenstein, 127 N.J.L. 55, 21 A.2d 346 (Sup.Ct.1941).

A mayor has a duty to inquire into any matter which may bring the community into public disrepute. O'Connor v. Harms, et al., 111 N.J.Super. 22, 266 A.2d 605 (App.Div.1970). The mayor, in his capacity as a citizen, resident and taxpayer of a municipality has the undoubted right to prosecute a suit in the interest of the municipality and its taxpayers. Carlin v. City of Newark, 36 N.J.Super. 74, 86, 114 A.2d 761 (Law Div.1955).

If the governing body of a municipality fails to prosecute a claim or demand of the municipality, as was the case herein, the court may allow a taxpayer and resident to commence and prosecute an action against the municipality (in the name, and on behalf, of the municipality) if, in the opinion of the court, the interests of the municipality would be promoted thereby. N.J.S.A. 2A:15-18.

Therefore, neither the mayor nor the township is a proper party plaintiff; however, the action will proceed with Michael P Pizzi, individually, as plaintiff because the court believes that the interests of the municipality would be promoted thereby.

Doctrine of Incompatibility of Offices.

The common law rule is that the acceptance by a public officer of another office which is incompatible with the first thereby vacates the first office; that is, the mere acceptance of the second (incompatible) office per se terminates the first office as effectively as a resignation. ¹ Public policy demands that an officeholder discharge his duties with undivided loyalty. The doctrine of incompatibility is intended to assure performance of that quality. Its applicability does not turn upon the integrity of the person concerned or his individual capacity to achieve impartiality, for inquiries of that kind would be too subtle to be rewarding. The doctrine applies inexorably if the offices come within it, no matter how worthy the officer's purpose or extraordinary his talent. ² McQuillin, Municipal Corporations (3 ed. 1982), § 12.67.

The incompatibility standard applied by the courts does not depend upon the good faith or bad faith of the official. Rather, incompatibility is determined by the character of the offices and their relation to each other, in the subordination of the one to the other, and in the nature of the duties and functions which attach to them. Offices are generally considered incompatible where such duties and functions are inherently inconsistent and repugnant, so that because of the contrariety and antagonism which would result from the attempt of one person to discharge faithfully, impartially, and efficiently the duties of both offices, considerations of public policy render it improper for an incumbent to retain both. If the duties of the two offices are such that when placed in one person they might disserve the public interests, or if the respective offices might, or will, conflict, even on rare occasions, it is sufficient to declare them legally incompatible. ...