Cobb v. City of Cape May

• Decision Date: 08 February 1971
• Parties: Marion COBB et al., Plaintiffs, v. CITY OF CAPE MAY et al., Defendants.
• Court: New Jersey Superior Court

Page 598

113 N.J.Super. 598

274 A.2d 622

Marion COBB et al., Plaintiffs, v. CITY OF CAPE MAY et al., Defendants.

Superior Court of New Jersey,

Law Division.

Feb. 8, 1971.

Walter C. Wright, Jr., Princeton, for plaintiffs.

Nathan W. Davis, Jr., Atlantic City, for defendants.

HORN, A.J.S.C.

Plaintiffs have moved for summary judgment in this action in lieu of prerogative writs. R. 4:46--2 requires that such judgment shall be rendered if the pleadings, depositions and admissions on file, together with the affidavits, if any, show palpably that there is no genuine issue as to any material fact.

Wright, one of the plaintiffs in the instant action, had brought a libel action against Cape May City Mayor Frank A. Gauvry and others. Harry Green, Esq. was retained by the city to represent Mayor Gauvry. Pursuant to a resolution adopted by the city council, Green was paid $2500 as a retainer. In addition, litigation expenses were also paid by the City.

Wright conceived himself to have been libelled as the result of certain declarations made by Gauvry. The libel action was ultimately terminated by a summary judgment entered for all the defendants on a holding by the court which included a determination that the words used were not defamatory.

The statements attributed to the mayor appeared to have been made as a representative of the city; that is to say, in his capacity as mayor and as a member of city council. The subject matter of the libel suit dealt primarily with the qualifications of the city manager of the City of Cape May.

Plaintiffs' contentions on the merits of the issue may be summed up in the questions of whether Gauvry was acting as mayor when he made the statements, whether he had the right to make statements as such and whether the city, under the circumstances, had the right to pay for his defense.

Plaintiffs rely on N.J.S.A. 40:81--8, which defines the duties of the mayor in the form of government adopted by the city as follows:

The mayor shall preside at all meetings of the municipal council and shall have a voice and vote in its proceedings, but shall not have the power of veto. He shall fill vacancies occurring in the trustees of the public library for such terms of offices as are provided by law. All bonds, notes, contracts and written obligations of the municipality shall be executed on its behalf by the mayor or, in the event of his inability to act, by such councilman as the municipal council shall designate to act as mayor during his absence or disability. The powers and duties of the mayor shall be only such as are expressly conferred upon him by this subtitle.

Plaintiffs argue that the mayor was not authorized to make statements in behalf of the city; that since he allegedly made them as an individual, the city had no legal authority to furnish him with counsel or otherwise indemnify him against loss in defending the resulting suit.

The law is well settled that a public official is entitled to compensation for expenses incurred in the performance of his official duties. As early as 1874 the Supreme Court of New Jersey held that public funds may be expended for the payment of 'expenses honestly incurred by courts, public officers or private citizens in furtherance of the due administration of justice.' State, Lewis, prosecutor v. Freeholders of Hudson County, 37 N.J.L. 254 (Sup.Ct.1874). This case was cited a few years later in State, Bradley, prosecutor v. Council of Hammonton, 38 N.J.L. 430 (Sup.Ct.1876), where a councilman was sued for malicious prosecution. In that case the councilman had been authorized by the council to bring the suit on which the malicious prosecution charge was based. Therefore, the court said this was clearly a 'town purpose' for which money could properly be spent.

This principle was reaffirmed more recently in O'Donnell v. Morris County Freeholder Board, 31 N.J. 434, 158 A.2d 1 (1960), where it was said that a public official may be reimbursed for expenses incurred in the discharge of his duties.

This is also the law in other jurisdictions. Maitland v. Town of Thompson, 129 Conn. 186, 27 A.2d 160 (Sup.Ct.Err.1942), involved a taxpayers' suit to restrain payment of a bill for attorney's services in defending a libel suit against members of the board of education. The libel suit arose out of a letter that the school board wrote to the state commissioner of education giving reasons for its action in firing the superintendent of schools. The superintendent sued and judgment was entered for defendants. The court held that a public officer was entitled to indemnification for loss sustained in the discharge of his official duties, provided:

The officer must have been acting in a matter in which the corporation has an interest, he must have been acting in the discharge of a duty imposed or authorized by law and he must have acted in good faith. (27 A.2d at 162)

The Court went on to say that:

The responsibility of public officers is to their constituents and the latter are entitled to know the reasons for official acts in order to judge whether the officers in question continue to deserve public confidence and support. The interest of the town in the matter clearly appears. The fact that the act of sending the letter was not the official action of the board does not necessarily determine the issue in favor of the plaintiffs. (at 162; emphasis added).

In 10 McQuillin, Municipal Corporations, § 29.14 at 268, it is stated that

* * * where an action is defended as an official duty rather than for personal motives it is proper for the municipality to authorize payment of expenses. Thus, it has been held that the...