Coletti v. Union County Bd. of Chosen Freeholders

• Decision Date: 20 April 1987
• Citation: 217 N.J.Super. 31,524 A.2d 1270
• Parties: Louis J. COLETTI, Plaintiff-Appellant, v. UNION COUNTY BOARD OF CHOSEN FREEHOLDERS, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 31

217 N.J.Super. 31

524 A.2d 1270

Louis J. COLETTI, Plaintiff-Appellant, v. UNION COUNTY BOARD OF CHOSEN FREEHOLDERS, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Submitted Dec. 9, 1986.

Decided April 20, 1987.

McCarter and English, for plaintiff-appellant (Joseph E. Irenas, of counsel; Frank E. Ferruggia, on the brief).

Sills, Beck, Cummis, Zuckerman, Radin, Tischman & Epstein, for defendant-respondent (Stephen J. Moses, of counsel; Jerald D. Baranoff, on the brief).

Before Judges ANTELL, BRODY and D'ANNUNZIO

The opinion of the court was delivered by

D'ANNUNZIO, J.S.C. (temporarily assigned).

The issue is whether a Board of Chosen Freeholders (Board) may remove a county manager without an adjudicatory hearing at which the Board would have the burden of establishing good cause for removal.

Plaintiff was appointed Union County Manager by the Board in June, 1984. His relationship with the Board was stormy and marked by conflict. For example, in January, 1985 plaintiff requested an investigation by the county prosecutor of plaintiff's allegations that the Board violated the local budget law by authorizing the expenditure of funds without written certifications that those funds were available. In February, 1985 plaintiff commenced an action against the Board in the Superior Court for a declaration that he, and not the Board, had the power to appoint special labor negotiators for the county.

Because of these conflicts and other disputes, the Board retained the services of a law firm in August, 1985 to assist it in dealing with plaintiff. On September 5, 1985, after the Board received its attorneys' report, the Board adopted resolution 495-8. The resolution suspended Coletti, with pay, from his position as county manager pending a public hearing to be held on September 25, 1985. The resolution generally charged that Coletti had acted irresponsibly and unprofessionally, that he had refused to comply with Board policies and legislation, that he had failed to properly communicate and cooperate with the Board and that he sought to usurp the Board's powers and responsibilities. This recitation of general complaints was followed by 19 paragraphs of more specific allegations.

In response to resolution 495-8, plaintiff commenced this action alleging that the Board had no authority to temporarily suspend him. Plaintiff sought an injunction prohibiting the Board from interfering with the performance of his duties and a declaration that he was entitled to an adjudicatory hearing before he could be suspended. Plaintiff further alleged that resolution 495-8 was adopted in violation of the Open Public Meetings Act. N.J.S.A. 10:4-6 et seq.

Judge Beglin issued an order to show cause but denied plaintiff temporary injunctive relief. ¹

On October 1, 1985 the Board held a public hearing to consider Coletti's removal. The Board submitted no evidence or testimony to support its charges, but it listened to a presentation by plaintiff and his counsel in rebuttal of the Board's charges. The Board also heard from several members of the public. At the conclusion of the hearing, the Board adopted resolution 686-5 which removed Coletti as county manager effective immediately.

Thereafter, plaintiff amended his complaint by consent and sought a judgment invalidating resolution 686-5 and restoring him to his position as county manager.

On October 22, 1985, the adjourned return date of the order to show cause, Judge Beglin, in a comprehensive oral opinion, denied plaintiff relief and entered judgment in favor of the Board. Plaintiff appeals and we affirm.

Traditionally, counties have been governed by Boards of Chosen Freeholders. N.J.S.A. 40:20-1. The Optional County Charter Law (Charter Law), N.J.S.A. 40:41A-1 et seq., grants the citizens of each county the right to adopt alternatives to traditional county government. Among the alternatives are the County Executive Plan ( N.J.S.A. 40:41A-31), the County Manager Plan ( N.J.S.A. 40:41A-45), the County Supervisor Plan ( N.J.S.A. 40:41A-59) and the Board President Plan ( N.J.S.A. 40:41A-72). Union County adopted the County Manager Plan. N.J.S.A. 40:41A-47 (hereafter, § 47) establishes the qualifications of the county manager and provides for the county manager's appointment and removal. It reads:

The county manager shall be qualified by administrative and executive experience and ability to serve as the chief executive of the county. He shall be appointed by a majority vote of the whole number of the board of freeholders and shall serve for an indefinite term. He may be removed by a majority vote of the board subject to due notice and a public hearing. Such notice shall be in writing and shall be accompanied by a written bill of particular charges and complaints and public hearing on these charges shall be no less than 15 or more than 30 days after personal service of notice and charges.

At the time of his appointment the manager need not be a resident of the county but after his appointment he may reside outside the county only with permission of the board.

Plaintiff contends that the statutory requirements of due notice, a written bill of particular charges and complaints and a public hearing imply a requirement that the removal be for good cause with the burden of proof on the Board.

In construing a statute we must give effect to the legislature's intent. Monmouth County v. Wissell, 68 N.J. 35, 342 A.2d 199 (1975). Sources of legislative intent are the language of a statute, the policy behind a statute, concepts of reasonableness and legislative history. Shapiro v. Essex County Freeholder Board, 177 N.J.Super. 87, 424 A.2d 1203 (Law Div.1980), aff'd. 183 N.J.Super. 24, 443 A.2d 219 (App.Div.1982), aff'd 91 N.J. 430, 453 A.2d 158 (1982).

By its terms, the statute does not require a showing of good cause. In other contexts, when the legislature has required a showing of good cause to terminate employment or to remove someone from office it has expressed that requirement in the applicable statute. N.J.S.A. 18A:28-5 (teachers); N.J.S.A. 18A:17-1 (secretaries and other administrative employees of boards of education); N.J.S.A. 40A:14-17 (fire personnel employed "during good behavior and efficiency"); N.J.S.A. 40A:14-128 (police personnel employed "during good behavior and efficiency"). Municipal managers appointed before January 9, 1982 were subject to removal without cause during the first three years of their employment but thereafter could "be removed only for cause ..." N.J.S.A. 40:82-3. ² See Golaine v. Cardinale, 142 N.J.Super. 385, 394, 361 A.2d 593 (Law Div.1976), aff'd. o.b. 163 N.J.Super. 453, 395 A.2d 218 (App.Div.1978) for a more comprehensive list of removal statutes requiring cause. The absence of a specific good cause requirement in the Charter Law is a strong indicia of the legislature's intent that good cause need not be established as a prerequisite of removal of a county manager.

A comparison of the executives created by each of the four optional plans, their powers and the method by which they obtain office is also helpful in construing § 47. The county executive is elected by the voters to a four year term. N.J.S.A. 40:41A-33. The county supervisor is elected by the voters to a three year term. N.J.S.A. 40:41A-61. The executive and the supervisor each have the power to approve or veto ordinances adopted by the board. N.J.S.A. 40:41A-37g and 65f. In addition, the executive has the power to appoint the county counsel. N.J.S.A. 40:41A-37b. The county manager and the board president do not have the power to approve or veto ordinances. The board president must be a freeholder duly elected by the voters and he must be elected board president for a one year term by the majority vote of his fellow freeholders.

Plaintiff's contention that he can be removed only for good cause after an adjudicatory hearing strikes a discordant note when that contention is measured against the powers and tenure of the other executives. If plaintiff's position is accepted, then the county manager, in effect, is appointed to a lifetime position unless he engages in egregious conduct. Unlike the county executive, the county supervisor and the board president, the county manager would not be accountable to the electorate. Under the construction urged by plaintiff, the county manager would be accountable to no one except within a narrow range of conduct sufficient to constitute good cause for removal. See generally Berardi v. Rutter, 42 N.J.Super. 39, 125 A.2d 877 (App.Div.1956), aff'd sub. nom. In Re Berardi, 23 N.J. 485, 129 A.2d 705 (1957) (revocation of private investigator's license for cause); In re Tenure Hearing of Grossman, 127 N.J.Super. 13, 316 A.2d 39 (App.Div.1974), certif. den. 65 N.J. 292, 321 A.2d 253 (1974) (dismissal of tenured teacher).

Enactment of the Charter Law was preceded by the creation of the County and Municipal Government Study Commission (Commission), L.1966, c. 28, and the Commission's filing of the reports required by that statute. L.1966, c. 28 § 4. The Charter Law has been described as a response to the Commission's reports. Union Cty. Park Comm. v. Cty. of Union, 154 N.J.Super. 213, 224, 381 A.2d 77 (Law Div.1976), aff'd o.b. 154 N.J.Super 125, 381 A.2d 33 (App.Div.1977), certif. den. 75 N.J. 531, 384 A.2d 511 (1977). Reports of commissioners specifically appointed to suggest legislation are valuable aides in determining legislative intent. Shapiro v. Essex Cty. Freeholders Bd., supra. In this case, the Commission's report, ³ popularly known as the Musto Report, is very...